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EXHIBIT T3C
XXXXXX GROUP INTERNATIONAL, INC., as Issuer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
INDENTURE
Dated as of [EFFECTIVE DATE OF PLAN OF REORGANIZATION]
$24,679,000(1)
12 1/4% Convertible Subordinated Notes due [THE TENTH ANNIVERSARY OF
EFFECTIVE DATE OF THE PLAN OF REORGANIZATION]
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(1) Subject to adjustment as required under the Plan of Reorganization to
reflect rounding adjustments (see Section 2.17).
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................1
SECTION 1.01 DEFINITIONS...................................................................................1
SECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT............................................14
SECTION 1.03 RULES OF CONSTRUCTION........................................................................15
ARTICLE 2 THE SUBORDINATED NOTES.................................................................................15
SECTION 2.01 ISSUANCE OF SUBORDINATED NOTES...............................................................15
SECTION 2.02 [INTENTIONALLY OMITTED]......................................................................16
SECTION 2.03 EXECUTION AND AUTHENTICATION.................................................................16
SECTION 2.04 REGISTRAR AND PAYING AGENT...................................................................16
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST..........................................................17
SECTION 2.06 NOTEHOLDER LISTS.............................................................................17
SECTION 2.07 TRANSFER AND EXCHANGE........................................................................17
SECTION 2.08 REPLACEMENT NOTES............................................................................18
SECTION 2.09 [INTENTIONALLY OMITTED]......................................................................18
SECTION 2.10 OUTSTANDING SUBORDINATED NOTES...............................................................18
SECTION 2.11 TREASURY NOTES...............................................................................18
SECTION 2.12 TEMPORARY NOTES..............................................................................18
SECTION 2.13 CANCELLATION.................................................................................18
SECTION 2.14 DEFAULTED INTEREST...........................................................................19
SECTION 2.15 CUSIP NUMBER.................................................................................19
SECTION 2.16 DEPOSIT OF MONEYS............................................................................19
SECTION 2.17 ISSUANCE OF NOTES IN EXCESS OF $24,679,000 PURSUANT TO PLAN OF REORGANIZATION................19
ARTICLE 3 REDEMPTION OF SUBORDINATED NOTES.......................................................................19
SECTION 3.01 OPTIONAL REDEMPTION..........................................................................19
SECTION 3.02 [INTENTIONALLY OMITTED]......................................................................20
SECTION 3.03 SELECTION OF SUBORDINATED NOTES TO BE REDEEMED...............................................20
SECTION 3.04 NOTICE OF REDEMPTION.........................................................................20
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION...............................................................21
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE..................................................................21
SECTION 3.07 SUBORDINATED NOTES REDEEMED OR PURCHASED IN PART.............................................21
SECTION 3.08 SECTION 3.08 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION...................................21
ARTICLE 4 COVENANTS..............................................................................................22
SECTION 4.01 PAYMENT OF SUBORDINATED NOTES................................................................22
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY..............................................................22
SECTION 4.03 CORPORATE EXISTENCE..........................................................................23
SECTION 4.04 PAYMENT OF TAXES AND OTHER CLAIMS............................................................23
SECTION 4.05 MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND RECORDS; COMPLIANCE WITH LAW.................23
SECTION 4.06 COMPLIANCE CERTIFICATES......................................................................24
SECTION 4.07 LIMITATION ON INDEBTEDNESS...................................................................24
SECTION 4.08 LIMITATION ON RESTRICTED PAYMENTS............................................................24
SECTION 4.09 LIMITATION ON ISSUANCES AND SALE OF STOCK BY RESTRICTED SUBSIDIARIES.........................26
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SECTION 4.10 LIMITATION ON LIENS..........................................................................27
SECTION 4.11 CHANGE OF CONTROL............................................................................27
SECTION 4.12 DISPOSITION OF PROCEEDS OF ASSET SALES.......................................................28
SECTION 4.13 LIMITATION ON TRANSACTIONS WITH INTERESTED PERSONS...........................................30
SECTION 4.14 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES................30
SECTION 4.15 FUTURE GUARANTORS............................................................................31
SECTION 4.16 [INTENTIONALLY OMITTED.].....................................................................31
SECTION 4.17 COMMISSION REPORTS...........................................................................31
SECTION 4.18 RULE 144A INFORMATION REQUIREMENT............................................................31
SECTION 4.19 WAIVER OF STAY, EXTENSION OR USURY LAWS......................................................31
ARTICLE 5 SUCCESSOR CORPORATION..................................................................................32
SECTION 5.01 WHEN LGII MAY MERGE, ETC.....................................................................32
SECTION 5.02 SUCCESSOR SUBSTITUTED........................................................................33
ARTICLE 6 REMEDIES...............................................................................................33
SECTION 6.01 EVENTS OF DEFAULT............................................................................33
SECTION 6.02 ACCELERATION.................................................................................34
SECTION 6.03 OTHER REMEDIES...............................................................................35
SECTION 6.04 WAIVER OF PAST DEFAULTS......................................................................35
SECTION 6.05 CONTROL BY MAJORITY..........................................................................35
SECTION 6.06 LIMITATION ON SUITS..........................................................................36
SECTION 6.07 RIGHT OF HOLDERS TO RECEIVE PAYMENT AND CONVERT SUBORDINATED NOTES...........................36
SECTION 6.08 COLLECTION SUIT BY TRUSTEE...................................................................36
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIMS............................................................36
SECTION 6.10 PRIORITIES...................................................................................37
SECTION 6.11 UNDERTAKING FOR COSTS........................................................................37
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES...........................................................37
ARTICLE 7 TRUSTEE................................................................................................38
SECTION 7.01 DUTIES.......................................................................................38
SECTION 7.02 RIGHTS OF TRUSTEE............................................................................38
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.................................................................39
SECTION 7.04 TRUSTEE'S DISCLAIMER.........................................................................39
SECTION 7.05 NOTICE OF DEFAULT............................................................................39
SECTION 7.06 MONEY HELD IN TRUST..........................................................................39
SECTION 7.07 REPORTS BY TRUSTEE TO HOLDERS................................................................40
SECTION 7.08 COMPENSATION AND INDEMNITY...................................................................40
SECTION 7.09 REPLACEMENT OF TRUSTEE.......................................................................40
SECTION 7.10 SUCCESSOR TRUSTEE BY MERGER, ETC.............................................................41
SECTION 7.11 ELIGIBILITY; DISQUALIFICATION................................................................41
SECTION 7.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST LGII...............................................41
ARTICLE 8 SATISFACTION AND DISCHARGE OF
INDENTURE................................................................42
SECTION 8.01 TERMINATION OF THE OBLIGATION OF LGII........................................................42
SECTION 8.02 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.....................................................42
SECTION 8.03 APPLICATION OF TRUST MONEY...................................................................45
SECTION 8.04 REPAYMENT TO LGII............................................................................45
SECTION 8.05 REINSTATEMENT................................................................................45
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ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS....................................................................45
SECTION 9.01 WITHOUT CONSENT OF HOLDERS...................................................................45
SECTION 9.02 WITH CONSENT OF HOLDERS......................................................................46
SECTION 9.03 COMPLIANCE WITH TRUST
INDENTURE ACT..........................................................47
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS............................................................47
SECTION 9.05 NOTATION ON OR EXCHANGE OF SUBORDINATED NOTES................................................47
SECTION 9.06 TRUSTEE MAY SIGN AMENDMENTS, ETC.............................................................47
SECTION 9.07 EFFECT OF AMENDMENT TO OR WAIVER UNDER SEVEN-YEAR
INDENTURE..................................48
ARTICLE 10 [INTENTIONALLY OMITTED]...............................................................................48
ARTICLE 11 MISCELLANEOUS.........................................................................................48
SECTION 11.01 TRUST
INDENTURE ACT OF 1939..................................................................48
SECTION 11.02 NOTICES......................................................................................48
SECTION 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS..................................................49
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT...........................................49
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION................................................49
SECTION 11.06 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR....................................................50
SECTION 11.07 GOVERNING LAW................................................................................50
SECTION 11.08 CONSENT TO SERVICE OF PROCESS................................................................50
SECTION 11.09 NO INTERPRETATION OF OTHER AGREEMENTS........................................................50
SECTION 11.10 NO RECOURSE AGAINST OTHERS...................................................................50
SECTION 11.11 SUCCESSORS...................................................................................51
SECTION 11.12 DUPLICATE ORIGINALS..........................................................................51
SECTION 11.13 SEPARABILITY.................................................................................51
SECTION 11.14 TABLE OF CONTENTS, HEADINGS, ETC.............................................................51
SECTION 11.15 BENEFITS OF
INDENTURE........................................................................51
ARTICLE 12 SUBSIDIARY GUARANTIES.................................................................................51
SECTION 12.01 GUARANTIES...................................................................................51
SECTION 12.02 LIMITATION ON LIABILITY......................................................................52
SECTION 12.03 SUCCESSORS AND ASSIGNS.......................................................................52
SECTION 12.04 NO WAIVER....................................................................................53
SECTION 12.05 MODIFICATION.................................................................................53
SECTION 12.06 RELEASE OF SUBSIDIARY GUARANTOR..............................................................53
ARTICLE 13 SUBORDINATION OF THE SUBORDINATED NOTES...............................................................53
SECTION 13.01 SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS........................................53
SECTION 13.02 PAYMENT OVER OF PROCEEDS UPON INSOLVENCY, ETC................................................53
SECTION 13.03 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT...............................................54
SECTION 13.04 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS......................................55
SECTION 13.05 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS..................................................55
SECTION 13.06 TRUSTEE TO EFFECTUATE SUBORDINATION..........................................................55
SECTION 13.07 NO WAIVER OF SUBORDINATION PROVISIONS........................................................56
SECTION 13.08 NOTICE TO TRUSTEE............................................................................56
SECTION 13.09 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT...............................57
SECTION 13.10 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.....................................57
SECTION 13.11 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS..........................................................................57
SECTION 13.12 ARTICLE APPLICABLE TO PAYING AGENTS..........................................................57
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SECTION 13.13 AUTHORIZATION TO FILE CLAIMS: REINSTATEMENT OF SUBORDINATION.................................57
SECTION 13.14 NO SUSPENSION OF REMEDIES....................................................................58
SECTION 13.15 MISCELLANEOUS................................................................................58
SECTION 13.16 CERTAIN CONVERSIONS NOT DEEMED PAYMENT.......................................................60
ARTICLE 14 CONVERSION OF NOTES...................................................................................60
SECTION 14.01 RIGHT TO CONVERT.............................................................................60
SECTION 14.02 EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF LGII COMMON STOCK ON CONVERSION; NO
ADJUSTMENT FOR INTEREST OR DIVIDENDS.........................................................60
SECTION 14.03 CASH PAYMENTS OR ROUNDING UP IN LIEU OF FRACTIONAL SHARES....................................61
SECTION 14.04 CONVERSION PRICE.............................................................................61
SECTION 14.05 ADJUSTMENT OF CONVERSION PRICE...............................................................62
SECTION 14.06 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE....................................65
SECTION 14.07 TAXES ON SHARES ISSUED.......................................................................66
SECTION 14.08 RESERVATION OF SHARES; LISTING OF LGII COMMON STOCK..........................................66
SECTION 14.09 RESPONSIBILITY OF TRUSTEE....................................................................66
SECTION 14.10 NOTICES TO HOLDERS...........................................................................67
SCHEDULE A SUBSIDIARY GUARANTORS
SCHEDULE 4.12 NON-CASH DISPOSABLE ASSETS
EXHIBIT A FORM OF NOTE
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INDENTURE, dated as of [THE EFFECTIVE DATE OF THE PLAN OF
REORGANIZATION], among Xxxxxx Group International, Inc., a Delaware corporation
("LGII"), the Subsidiary Guarantors (as defined herein) who are or may hereafter
become parties to this
Indenture, and Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, as trustee (the "TRUSTEE").
WHEREAS, LGII entered into that certain Settlement Agreement and Mutual
Release (the "SETTLEMENT AGREEMENT"), dated April 12, 2001, by and among
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership, Xxxxxxxxxx Xxxx Hills Offshore Capital Partners L.P., a Delaware
limited partnership, Blackstone Family Investment Partnership II, L.P., a
Delaware limited partnership, RHI Management Direct L.P., a Delaware limited
partnership, Roses Delaware, Inc., a Delaware corporation, LGII and The Xxxxxx
Group International Inc., a British Columbia corporation;
WHEREAS, the Plan of Reorganization (as defined below), authorizes LGII
and certain other parties to take any and all actions necessary or appropriate
to consummate the settlement and resolution of certain claims as contemplated by
the Settlement Agreement; and
WHEREAS, pursuant to the Settlement Agreement and Plan of
Reorganization, LGII desires to issue to certain parties named in the Settlement
Agreement its 12 1/4% Convertible Subordinated Notes due [TENTH ANNIVERSARY OF
THE EFFECTIVE DATE OF THE PLAN OF REORGANIZATION] (the "SUBORDINATED NOTES");
NOW, THEREFORE, 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 Subordinated Notes:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (a) assumed or
created by LGII or any Restricted Subsidiary 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 BANK" means the administrative agent under the Exit Facility and
any successor to the administrative agent in such capacity.
"ASSET ACQUISITION" means (a) an Investment by LGII or any Restricted
Subsidiary in any other Person pursuant to which such Person shall become a
Restricted Subsidiary, or shall be merged with or into LGII or any Restricted
Subsidiary, (b) the acquisition by LGII or any Restricted Subsidiary of the
assets of any Person (other than a Restricted Subsidiary) which constitute all
or substantially all of the assets of such Person, or (c) the acquisition by
LGII or any Restricted Subsidiary of any division or line of business of any
Person (other than a Restricted Subsidiary); PROVIDED, HOWEVER, that no
Restructuring Transaction shall be deemed to constitute an "ASSET ACQUISITION."
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, lease or other disposition to any Person other than LGII or a
Subsidiary Guarantor, in one or a series of related transactions, of (a) any
Capital Stock of any Restricted Subsidiary (other than in respect of directors'
qualifying shares or investments by foreign nationals mandated by applicable
law), (b) all or substantially all of the properties and assets of any division
or line of business of LGII or any Restricted Subsidiary, or (c) any other
properties or assets of LGII or any Restricted Subsidiary other than properties
and assets sold in the ordinary course of business; PROVIDED, HOWEVER, that no
Restructuring Transaction shall be deemed to constitute an "ASSET SALE."
Furthermore, for the purposes of this definition, the term "ASSET SALE" shall
not include any sales, transfers or other dispositions of equipment,
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tools or other assets (including Capital Stock of any Restricted Subsidiary) by
LGII or any of its Restricted Subsidiaries not otherwise excluded from the
definition of "ASSET SALE" in respect of which LGII and its Restricted
Subsidiaries receive cash or property with an aggregate Fair Market Value of
$100,000 or less.
"BANKRUPTCY LAW" means Title 11 of the United States Code, as amended,
or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"BOARD OF DIRECTORS" means, except where otherwise clearly indicated,
the board of directors of LGII 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 to have been duly adopted by the
Board of Directors of LGII 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.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person, and any rights, warrants or options exchangeable or exercisable
for or convertible into such capital.
"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, (a) any evidence of Indebtedness
with a maturity of 270 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); (b) certificates of deposit or acceptances with a
maturity of 270 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 and rated B or better by Xxxxxxxx'x
Bankwatch (or an equivalent rating by a comparable rating agency); (c)
certificates of deposit with a maturity of 270 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; and (d) 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 270 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.
"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 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 LGII; (b) 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, LGII, in any such event pursuant to a
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transaction in which the outstanding Voting Stock of LGII is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Stock of 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 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 LGII (together with any new directors whose election by such Board
of Directors or whose nomination for election by the shareholders or
stockholders of 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 LGII then in office; or (d) LGII is liquidated or
dissolved or LGII or its stockholders adopts a plan of liquidation regarding
LGII. Notwithstanding the foregoing, no Change of Control shall be deemed to
result from any Restructuring Transaction.
"CHANGE OF CONTROL OFFER" has the meaning set forth in Section 4.11.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, or if at any time after the execution of this
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 equity, whether
outstanding at the Measurement Date or issued after the Measurement Date, and
includes, without limitation, all series and classes of such common equity.
"CONSOLIDATED EBITDA" means, with respect to any Person for any period,
the sum of Consolidated Net Income, plus the following to the extent deducted or
not included in calculating such Consolidated Net Income:
(a) all income tax expense;
(b) Consolidated Net Interest Expense;
(c) depreciation and amortization expense (excluding
amortization expense attributable to a prepaid operating activity item that was
paid in cash on a prior period); and
(d) all other non-cash charges (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for cash
expenditures in any future period);
in each case for such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to any
Person, the ratio of the aggregate amount of Consolidated EBITDA of such Person
for the most recent four full fiscal quarters preceding the date of the
transaction for which financial statements are available (the "TRANSACTION
DATE") giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio (such four full fiscal quarter period being referred to herein as
the "PRIOR QUARTERS") to the aggregate amount of Consolidated Fixed Net Charges
of such Person for the Prior Quarters. In addition to and without limitation of
the foregoing, for purposes of this definition, "CONSOLIDATED EBITDA" and
"CONSOLIDATED FIXED NET 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 Quarters to and including the
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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 NET
CHARGES" for purposes of determining the denominator (but not the numerator) of
this "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 or floating 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, LIBOR, 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 that has a
purchase price of $5,000,000 or more and a "MATERIAL ASSET SALE" is an Asset
Sale that has a sale price of $5,000,000 or more.
"CONSOLIDATED FIXED NET CHARGES" means, with respect to any Person for
any period, the sum of, without duplication, (a) Consolidated Net Interest
Expense for such period, (b) scheduled mandatory principal payments of
Indebtedness other than up to $35,000,000 of scheduled principal repayments of
the Two-Year Notes, (c) the principal component of Capitalized Lease Obligations
paid by such Person during such period, (d) cash dividends on Capital Stock paid
by such Person during such period (excluding dividends paid to LGII or any
Restricted Subsidiary), all as determined on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" means, with respect to any Person
for any period, without duplication, the sum of (a) 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, (i)
any amortization of debt discount, (ii) the net cost under Interest Rate
Protection Obligations, (iii) the interest portion of any deferred payment
obligation, and (iv) all accrued interest and (b) 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 less (c) interest
income of 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, including LGII and its Restricted Subsidiaries,
adjusted, to the extent included in calculating such net income, by excluding,
without duplication, (a) all extraordinary gains or losses, (b) the portion of
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, (c) any gain or loss realized upon the
termination of any employee pension benefit plan, on an after-tax basis, (d)
gains or losses in respect of any Asset Sales by such Person or one of its
Restricted Subsidiaries, and (e) 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. All amounts and determinations under this definition shall be in
accordance with GAAP.
"CONSOLIDATED NET WORTH" means, with respect to any Person at any date,
the consolidated stockholders' equity (or equivalent) of such Person less the
amount of such stockholders' equity (or equivalent) attributable to Redeemable
Capital Stock of such Person and its Restricted Subsidiaries. All amounts and
determinations under this definition shall be in accordance with GAAP.
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"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 or 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.
"CONVERSION AGENT" has the meaning set forth in Section 2.04.
"CONVERSION PRICE" has the meaning specified in Section 14.04.
"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 at Xxxxx Fargo
Bank Minnesota, N.A., Sixth Street and Marquette Avenue, MAC N9303-120,
Xxxxxxxxxxx, XX 00000, Attention: Corporate Trust - Xxxxxx Administrator.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect LGII 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.
"DESIGNATED SENIOR INDEBTEDNESS" means all Indebtedness and Obligations
of LGII and any Subsidiary Guarantor heretofore, now or hereinafter arising
under or in connection with any of the Exit Facility, Two-Year Notes, the
Two-Year Indenture, Five-Year Notes, the Five-Year Indenture, Seven-Year Notes
and the Seven-Year Indenture, and any Refinancing Indebtedness incurred in
respect of any thereof.
"EVENT OF DEFAULT" has the meaning set forth under Section 6.01 herein.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
and the regulations promulgated thereunder.
"EXIT FACILITY" means the [EXIT FACILITY], and the documents related
thereto as such facility and documents may be amended, restated, supplemented or
otherwise modified from time to time, and any successor or replacement facility
or other Refinancing; in whole or in part thereof.
"FAIR MARKET VALUE" means, with respect to any asset, the price that
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.
"FIVE-YEAR NOTES" means the securities issued under the Five-Year
Indenture, as amended, modified or supplemented from time to time, and any
Refinancing thereof in accordance with clause (i) of the definition of Permitted
Indebtedness.
"FIVE-YEAR INDENTURE" means the indenture, dated as of the date hereof,
between LGII and Xxxxx Fargo Bank Minnesota, National Association providing for
the issuance of 11% senior secured notes due [THE FIFTH ANNIVERSARY OF THE
EFFECTIVE DATE OF THE PLAN OF REORGANIZATION], as such indenture may be amended,
modified, supplemented or restated in accordance with the terms hereof, and any
Refinancing thereof in accordance with clause (i) of the definition of Permitted
Indebtedness.
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"GAAP" means accounting principles generally accepted in the United
States consistently applied.
"GUARANTEE" means, as applied to any obligation, (a) 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 (b) 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 part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. The term "GUARANTEED" used
as a verb has a corresponding meaning.
"GUARANTEE AGREEMENT" means a supplemental indenture, in a form
satisfactory to the Trustee, pursuant to which a Subsidiary Guarantor guarantees
LGII's obligations with respect to the Subordinated Notes on the terms provided
for in this indenture.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Subordinated
Note is registered on the Registrar's books.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (excluding
current accounts payables and other accrued current liabilities incurred in the
ordinary course of business and not past due), (c) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, (e) all
Capitalized Lease Obligations of such Person, (e) all obligations under or in
respect of Currency Agreements and Interest Rate Protection Agreements of such
Person, (f) all obligations, contingent or otherwise, of such Person as an
account party under letters of credit or banker's acceptances, (g) all
Guarantees of obligations of others of the kind referred to in clauses (a)
through (f) above, and (h) all obligations of others of the kind referred to in
clauses (a) to (f) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned by such Person, whether or not the obligations secured thereby
have been assumed by such Person.
"INDENTURE" means this Indenture, as amended, modified, supplemented or
restated from time to time, and shall include the form and terms of Subordinated
Notes established as contemplated hereby.
"INDEPENDENT FINANCIAL ADVISOR" means a firm (a) that does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in LGII and (b) that, in the judgment of the Board
of Directors of LGII, is otherwise independent and qualified to perform the task
for which it is to be engaged.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Subordinated 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, including any advance, or capital
contribution to, or guarantee of Indebtedness of, (by means of any transfer of
cash or other 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 (including securities not consisting of cash or cash equivalents
and received in connection with an asset sale or other disposition of assets
permitted hereunder), bonds, notes, debentures or other securities or evidences
of Indebtedness issued by, any other Person. "INVESTMENTS"
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shall exclude extensions of trade credit by LGII and its Restricted Subsidiaries
in the ordinary course of business in accordance with normal trade practices of
LGII or such Restricted Subsidiary, as the case may be.
"LENDERS" means the financial institutions acting as leaders under the
Exit Facility and their successors and assigns (including, without limitation,
any Lender issuing one or more letters of credit).
"LGII COMMON STOCK" means, for purposes of Article 14, (i) the class of
shares designated as the common stock of LGII as of the date of this Indenture,
(ii) all shares of any class or classes (however designated) of LGII, now or
hereafter authorized, the holders of which have the right, without limitation as
to amount, either to all or to a part of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on any
shares entitled to preference, and the holders of which are ordinarily entitled
to vote generally in the election of directors of LGII, or (iii) any other class
of shares resulting from successive changes or reclassifications of such shares
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value.
"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 Subordinated Note, the date
on which any principal of such Subordinated 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, call for redemption or purchase or
otherwise.
"MEASUREMENT DATE" means [THE EFFECTIVE DATE OF THE PLAN OF
REORGANIZATION].
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its successors and
assignees.
"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 LGII or any Restricted Subsidiary) net of (a) reasonable and
customary brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers) related
to such Asset Sale, (b) provisions for all taxes payable as a result of such
Asset Sale, (c) amounts required to be paid to any person (other than LGII or
any Restricted Subsidiary) owning a beneficial interest in the assets subject to
the Asset Sale, and (d) appropriate amounts to be provided by LGII or any
Restricted Subsidiary, as the case may be, as a reserve required in accordance
with GAAP against any liabilities associated with such Asset Sale and retained
by LGII or any Restricted Subsidiary, 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 indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee; PROVIDED,
HOWEVER, that (i) excess amounts set aside for payment of taxes pursuant to
clause (b) remaining after such taxes have been paid in full or the statute of
limitations therefore has expired and (ii) amounts initially held in reserve
pursuant to clause (d) no longer so held shall be Net Cash Proceeds.
"NON-PAYMENT DEFAULT" means (a) any "Default" or "Event of Default" (as
such terms are defined in the documents evidencing the Designated Senior
Indebtedness), other than a Payment Default; and (b) any other event of default
with respect to any Senior Indebtedness, other than a Payment Default.
"OBLIGATIONS" means all obligations for the reimbursement of amounts
drawn under any letter of credit or for the payment of principal, premium or
interest (including, without limitation, interest accruing after maturing and
interest whether or not allowed after the filing of a petition initiating any
proceeding under Bankruptcy Law at the rate specified in the instrument
governing the relevant Indebtedness), penalties, fees, expenses, indemnities or
other amounts, now or hereafter existing, with respect to any Indebtedness.
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"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 any other executive
officer of LGII whose office does not currently exist but is created after the
Measurement Date.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of LGII 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, any Restricted Subsidiary of LGII or the Trustee.
"PARI PASSU INDEBTEDNESS" means Indebtedness of LGII which ranks pari
passu in right of payment with the Subordinated Notes.
"PAYING AGENT" has the meaning set forth in Section 2.04, except that,
for the purposes of Section 4.11 and Articles 3 and 8, the Paying Agent shall
not be LGII or a Subsidiary of LGII or any of their respective Affiliates.
"PAYMENT BLOCKAGE PERIOD" has the meaning specified in Section 13.03.
"PAYMENT DEFAULT" means any default in the payment of any Senior
Indebtedness when due.
"PAYMENT IN FULL" means, for the purposes of Article 13, payment in
full in cash or other payment satisfactory to the holders of Senior Indebtedness
being paid.
"PERMITTED HOLDERS" means Xxxxxx Xxxxxx & Co., Cerberus Capital
Management, Franklin Mutual Advisers, LLP, GSCP Recovery, Inc. and Oaktree
Capital Management, LLC [AND ANY OTHER PERSON RECEIVING GREATER THAN 10% OF THE
OUTSTANDING NEW COMMON STOCK (AS DEFINED IN THE PLAN OF REORGANIZATION) ON THE
MEASUREMENT DATE], each Affiliate of any of the foregoing, and any investment
fund that is managed or advised by any of the foregoing.
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(a) Indebtedness under the Two-Year Notes, the Seven-Year
Notes, and the Subordinated Notes;
(b) Indebtedness of LGII and its Restricted Subsidiaries
outstanding on the Measurement Date (which, with respect to Rosehills Holding
Corp., a Delaware corporation, and its Subsidiaries, shall be deemed to include
$75,000,000 of Indebtedness under a term facility maturing in 2003 and
$80,000,000 of Indebtedness under senior subordinated notes maturing in 2004,
regardless of whether the entirety of such Indebtedness is outstanding on the
Measurement Date) other than Indebtedness under the Exit Facility, the Two-Year
Notes, the Five-Year Notes and the Seven-Year Notes;
(c) Indebtedness of LGII under the Exit Facility and the
Five-Year Notes in an aggregate principal amount at any one time outstanding not
to exceed $350,000,000;
(d) Interest Rate Protection Obligations of LGII covering
Indebtedness of LGII and its Restricted Subsidiaries and Interest Rate
Protection Obligations of any Restricted Subsidiary covering Indebtedness of
such Restricted Subsidiary; PROVIDED, HOWEVER, that, in the case of any such
Interest Rate Protection Obligations, (i) 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 Section 4.07 and
(ii) 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;
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(e) Indebtedness under Currency Agreements; PROVIDED, HOWEVER,
that, in the case of Currency Agreements that relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of LGII and its Restricted
Subsidiaries 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 surety bonds,
performance bonds, guarantees, letters of credit, or similar obligations in lieu
thereof provided in the ordinary course of business (including any Indebtedness
resulting from compliance with federal or state laws, orders or regulations
pertaining to funeral home, cemetery or crematory industries or operations);
(h) Indebtedness of LGII and its Restricted Subsidiaries
represented by letters of credit for the account of LGII 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) (i) Indebtedness of LGII the proceeds of which are used
solely to refinance (whether by amendment, renewal, extension or refunding)
Indebtedness of LGII and its Restricted Subsidiaries and (ii) Indebtedness of
any Restricted Subsidiary 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 Measurement Date or Indebtedness contemplated by
clause (d), (e), (f), (g) or (h) of this covenant; PROVIDED, HOWEVER, that (x)
the principal amount of Indebtedness contemplated by this clause (i) (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 refinancing pursuant to the
terms of such Indebtedness or the amount of any premium reasonably determined by
the Board of Directors of LGII as necessary to accomplish such refinancing, plus
the amount of expenses in connection therewith and (y) in the case of
Indebtedness contemplated by this clause (i) to Refinance Indebtedness
subordinated in right of payment to the Subordinated Notes, such Refinanced
Indebtedness constitutes Indebtedness subordinated in right of payment to the
Subordinated Notes to at least the same extent and has an average maturity not
earlier than that of the Refinanced Indebtedness;
(j) Indebtedness of LGII and its Restricted Subsidiaries
represented by Capitalized Lease Obligations, mortgage financings or purchase
money obligations, in each case incurred for the purpose of financing all or any
part of the purchase price or cost of acquisition, construction or improvement
of assets used in the business of LGII or such Restricted Subsidiary, in an
aggregate principal amount at any time outstanding, including all Refinancing
thereof, not to exceed $25,000,000;
(k) intercompany Indebtedness between or among LGII and any
Restricted Subsidiaries;
(l) the guarantee by LGII or any Restricted Subsidiary of
Indebtedness of LGII or a Restricted Subsidiary contemplated by another clause
of this definition on the same basis;
(m) Indebtedness consisting of the Subsidiary Guarantee of a
Subsidiary Guarantor and any Guarantee by a Subsidiary Guarantor of Indebtedness
permitted under Section 4.07;
(n) Indebtedness of LGII and its Restricted Subsidiaries under
Canadian or United Kingdom credit facilities in an aggregate principal amount at
any one time outstanding not to exceed $20,000,000 and any Refinancing thereof;
and
(o) Indebtedness incurred pursuant to the Restructuring
Transactions.
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"PERMITTED INVESTMENTS" means any of the following: (a) Investments in
any Subsidiary Guarantor of LGII (including any Person that pursuant to such
Investment becomes a Subsidiary Guarantor of LGII) and any Person that is merged
or consolidated with or into, or transfers or conveys all or substantially all
of its assets to, LGII or any Subsidiary Guarantor of LGII at the time such
Investment is made; (b) Investments in Cash Equivalents; (c) Investments in
Currency Agreements on commercially reasonable terms entered into by LGII or any
of its Restricted Subsidiaries in the ordinary course of business in connection
with the operations of the business of LGII or its Restricted Subsidiaries to
hedge against fluctuations in foreign exchange rates constituting Permitted
Indebtedness; (d) loans or advances to officers, employees or consultants of
LGII and its Restricted Subsidiaries for travel and moving expenses in the
ordinary course of business for bona fide business purposes of LGII and its
Restricted Subsidiaries; (e) other loans or advances to officers, employees or
consultants of LGII and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes of LGII and its Restricted Subsidiaries
not in excess of $5,000,000 in the aggregate at any one time outstanding; (f)
Investments in evidences of Indebtedness, securities or other property received
from another Person by LGII 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 LGII or any of its
Restricted Subsidiaries, or for other liabilities or obligations of such other
Person to LGII or any of its Restricted Subsidiaries that were created, in
accordance with the terms of this Indenture; (g) Investments in Interest Rate
Protection Agreements on commercially reasonable terms entered into by LGII or
any of its Restricted Subsidiaries in the ordinary course of business in
connection with the operations of LGII and its Restricted Subsidiaries to hedge
against fluctuations in interest rates constituting Permitted Indebtedness; (h)
Investments of funds received by LGII or its Restricted Subsidiaries in the
ordinary course of business, which funds are required to be held in trust for
the benefit of others by LGII or such Restricted Subsidiary, as the case may be,
and which funds do not constitute assets or liabilities of LGII or such
Restricted Subsidiary; (i) notes held by LGII or any Restricted Subsidiary that
were obtained by LGII or such Restricted Subsidiary in connection with Asset
Sales (i) in the ordinary course of its funeral home, cemetery or cremation
businesses or (ii) that were required to be made pursuant to applicable federal
or state law; (j) Investments not in excess of $50,000,000 in the aggregate in
Subsidiaries other than Subsidiary Guarantors; (k) Investments not in excess of
$20,000,000 in Subsidiaries other than Subsidiary Guarantors engaged in
insurance businesses conducted by LGII or any of its Subsidiaries on the
Measurement Date or insurance businesses reasonably related thereto; and (l)
guarantees of any of the foregoing Investments.
"PERMITTED LIENS" means the following types of Liens:
(a) Liens for taxes, assessments or governmental charges or
claims either (i) not delinquent or (ii) contested in good faith by appropriate
proceedings and as to which LGII or any of its Restricted Subsidiaries shall
have set aside on its books such reserves as may be required pursuant to GAAP
and as to which foreclosure is stayed during the pending of such proceeding;
(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 and as to which foreclosure is stayed during
the pending of such proceeding;
(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 LGII or any of
its Restricted Subsidiaries;
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(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 Person at the time
such Person becomes a Restricted Subsidiary and not created in contemplation of
such event and provided such Lien is not spread to any other assets of LGII and
its other Restricted Subsidiaries;
(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 Person existing at the time
such Person is merged or consolidated with or into LGII or a Restricted
Subsidiary and not created in contemplation of such event and provided such Lien
is not spread to any other assets of LGII and its other Restricted Subsidiaries;
(j) any Lien existing on any asset prior to the acquisition
thereof by LGII or a Restricted Subsidiary and not created in contemplation of
such acquisition;
(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;
(l) any extension, renewal or replacement of any Lien
contemplated 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 (i) such Lien shall attach solely to the same property or assets
and (ii) 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;
(m) Liens securing obligations incurred under the Exit
Facility or the Five-Year Notes; and
(n) Liens required under or created pursuant to the Plan of
Reorganization.
"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.
"PLAN OF REORGANIZATION" means the [FINAL PLAN OF REORGANIZATION].
"PREDECESSOR NOTES" means, with respect to any particular Subordinated
Note, every previous Subordinated Note evidencing all or a portion of the same
debt as that evidenced by such particular Subordinated Note; and, for the
purposes of this definition, any Subordinated Notes authenticated and delivered
under Section 2.08 hereof in exchange for mutilated Notes or in lieu of lost,
destroyed or stolen Subordinated Notes, shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Subordinated Notes.
"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.
"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, exchangeable or exercisable 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 one year anniversary of Stated Maturity
with respect to the principal of any Subordinated Note or is redeemable at the
option of the holder thereof at any time prior to the one year anniversary of
any such Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to the one year anniversary of any such Stated
Maturity.
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"REDEMPTION DATE" means, with respect to any Subordinated Note to be
redeemed, the date fixed by LGII for such redemption pursuant to this Indenture
and the terms of the Subordinated Notes.
"REDEMPTION PRICE" means, with respect to any Subordinated Note to be
redeemed, the price fixed for such redemption pursuant to the terms of this
Indenture and the Subordinated Notes.
"REFINANCE" means, in respect of any Indebtedness, to finance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such indebtedness, in whole or in
part (including by way of a securitization transaction). "REFINANCED" and
"REFINANCING" have correlative meanings.
"REGISTRAR" has the meaning set forth in Section 2.04.
"RESTRICTED PAYMENTS" has the meaning set forth in Section 4.08.
"RESTRICTED SUBSIDIARY" means any Subsidiary of LGII other than an
Unrestricted Subsidiary.
"RESTRUCTURING TRANSACTION" means any of the "Restructuring
Transactions," as such term is defined in the Plan of Reorganization.
"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 that 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 Credit Market Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"SECURITIES ACT" means the Securities Act of 1933, as amended and the
regulations promulgated thereunder.
"SENIOR INDEBTEDNESS" means (i) all Designated Senior Indebtedness, and
(ii) any other Indebtedness (and related Obligations) incurred by LGII or any
Subsidiary Guarantor, unless the instrument under which such Indebtedness is
incurred expressly provides that it is not senior in right of payment to, or is
on a parity with or subordinated in right of payment to the Subordinated Notes.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
described in clause (ii) above will not include (1) any liability for federal,
state, local or other taxes owed or owing by LGII or any Subsidiary Guarantor;
(2) any obligation of LGII or any Subsidiary Guarantor to LGII or any of its
Subsidiaries (except to the extent that such obligations have been assigned to,
or for the benefit of, the holders of any of the Designated Senior Indebtedness
to secure any of the Designated Senior Indebtedness); (3) any accounts payable
or trade liabilities arising in the ordinary course of business (including
instruments evidencing such liabilities); (4) Indebtedness that, when incurred
and without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx
Xxxxxx Code, is without recourse to LGII; (5) Indebtedness evidenced by the
Subordinated Notes and (6) capital stock of LGII or any Subsidiary Guarantor.
"SENIOR TRUSTEE" means the trustee under any of the Two-Year Indenture,
the Five-Year Indenture, or the Seven-Year Indenture, or any trustee or
equivalent thereof with respect to any Refinancing Indebtedness with respect to
any thereof.
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"SEVEN-YEAR NOTES" means the securities issued under the Seven-Year
Indenture, as amended, modified or supplemented from time to time, and any
Refinancing thereof in accordance with clause (i) of the definition of Permitted
Indebtedness.
"SEVEN-YEAR INDENTURE" means the indenture, dated as of the date
hereof, between LGII and Xxxxx Fargo Bank Minnesota, National Association
providing for the issuance of 12 1/4% senior unsecured notes due [THE SEVENTH
ANNIVERSARY OF THE EFFECTIVE DATE OF THE PLAN OF REORGANIZATION], as such
indenture may be amended, modified, supplemented or restated in accordance with
the terms hereof, and any Refinancing thereof in accordance with clause (i) of
the definition of Permitted Indebtedness.
"SIGNIFICANT SUBSIDIARY" means a Restricted Subsidiary that is a
"SIGNIFICANT SUBSIDIARY" as defined in Rule 1.02(w) of Regulation S-X under the
Securities Act.
"SPECIAL FINANCE SUBSIDIARY" means a special purpose bankruptcy-remote
subsidiary established for purposes of facilitating one or more securitization
transactions.
"STATED MATURITY" means, when used with respect to any Subordinated
Note or any installment of interest thereon, the date specified in such
Subordinated Note as the fixed date on which the principal of such Subordinated
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.
"SUBORDINATED INDEBTEDNESS" means all Indebtedness heretofore, now or
hereinafter existing under the Subordinated Notes and this Indenture (whether
created directly or acquired by assignment or otherwise), and all interest and
premiums, if any, thereon and all other amounts payable in respect thereof
(including, without limitation, sinking fund payments (if any), defeasance
payments (if any), and any and all amounts payable to acquire any Subordinated
Notes or on account of any redemption, repurchase, retirement or other purchase
of Subordinated Notes, including Indebtedness of the Subsidiary Guarantors with
respect to the foregoing.
"SUBORDINATED NOTES" means the securities that are issued under this
Indenture, as amended, modified or supplemented from time to time.
"SUBSIDIARY" means, with respect to any Person, (a) 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 (b) 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.
"SUBSIDIARY GUARANTOR" means each Subsidiary of LGII that executes this
Indenture as a guarantor and each other Subsidiary of LGII that thereafter
enters into a Subsidiary Guarantee pursuant to the terms of this Indenture.
"SUBSIDIARY GUARANTEE" means a Guarantee by a Subsidiary Guarantor of
LGII's obligations with respect to the Subordinated Notes.
"SURVIVING ENTITY" has 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 Measurement 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
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officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
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.
"TWO-YEAR NOTES" means the securities issued under the Two-Year
Unsecured Notes Indenture, as amended or supplemented from time to time, and any
Refinancing thereof in accordance with clause (i) of the definition of Permitted
Indebtedness.
"TWO-YEAR INDENTURE" means the indenture, dated as of the date hereof,
between LGII and Xxxxx Fargo Bank Minnesota, National Association providing for
the issuance of 12 1/4% senior unsecured notes due [THE SECOND ANNIVERSARY OF
THE EFFECTIVE DATE OF THE PLAN OF REORGANIZATION], as such indenture may be
amended, modified, supplemented or restated in accordance with the terms hereof,
and any Refinancing thereof in accordance with clause (i) of the definition of
Permitted Indebtedness.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning set forth in Section
8.02.
"UNRESTRICTED SUBSIDIARY" means each of (a) Xxxxxx Life Insurance
Group, Inc., a Delaware corporation, any Subsidiary thereof, and any successors
to any of the foregoing and (b) any Subsidiary of LGII declared by the Board of
Directors of LGII to be an Unrestricted Subsidiary; PROVIDED, that no such
Subsidiary shall be declared to be an Unrestricted Subsidiary unless (i) none of
its properties or assets were owned by LGII or any of its Restricted
Subsidiaries immediately prior to the Measurement Date, other than any such
assets as are transferred to such Unrestricted Subsidiary in accordance with
Section 4.08, (ii) its properties and assets, to the extent that they secure
Indebtedness, secure only Non-Recourse Indebtedness and (iii) it has no
Indebtedness other than Non-Recourse Indebtedness. As used above, "NON-RECOURSE
INDEBTEDNESS" means Indebtedness as to which (a) neither LGII nor any of its
Subsidiaries (other than the relevant Unrestricted Subsidiary or another
Unrestricted Subsidiary) (i) provides credit support (including any undertaking,
agreement or instrument that would constitute Indebtedness), (ii) guarantees or
is otherwise directly or indirectly liable, or (iii) constitutes the lender (in
each case, other than in compliance with Section 4.08) and (b) 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 LGII 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 any Subsidiary of which 100% of the
outstanding Capital Stock is owned by LGII or one or more Wholly Owned
Subsidiaries of LGII or by LGII and one or more Wholly Owned Subsidiaries of
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.
SECTION 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 Subordinated Notes;
"INDENTURE SECURITY HOLDER" means a Noteholder or Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
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"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means LGII or any other obligor
on the Subordinated Notes.
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.
SECTION 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.
ARTICLE 2
THE SUBORDINATED NOTES
SECTION 2.01 ISSUANCE OF SUBORDINATED NOTES.
The aggregate principal amount of Subordinated Notes which may be
outstanding at any time under this Indenture may not exceed $24,679,000(2) at
any time, except to the extent permitted by Sections 2.08 and 2.17. Upon the
execution and delivery of this Indenture, Subordinated Notes in an aggregate
principal amount of $24,679,000(3), and such additional amount as provided for
in Section 2.17, may be executed by LGII and delivered to the Trustee for
authentication.
The Subordinated Notes and the Trustee's certificate of authentication
thereon shall be in substantially the form of Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have 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 Subordinated Notes, as evidenced by their execution
thereof. The Subordinated Notes shall be issuable only in registered form
without coupons and only in denominations of $1,000 and integral multiples
thereof.
The definitive Subordinated Notes 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 Subordinated Notes may be listed, all as determined by the
Officers executing such
----------
(2) Subject to adjustment as required under the Plan of Reorganization to
reflect rounding adjustments (see Section 2.17).
(3) Subject to adjustment as required under the Plan of Reorganization to
reflect rounding adjustments (see Section 2.17).
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Subordinated Notes, as evidenced by their execution of such Subordinated Notes.
Each Subordinated Note shall be dated the date of its authentication.
In accordance with the terms of the Plan of Reorganization,
Subordinated Notes shall be issued in the form of permanent certificated
Subordinated Notes in registered form in substantially the form set forth in
Exhibit A hereto.
The terms and provisions contained in the form of the Subordinated
Notes, annexed hereto as Exhibit A, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, LGII and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
SECTION 2.02 [INTENTIONALLY OMITTED].
SECTION 2.03 EXECUTION AND AUTHENTICATION.
Two Officers shall execute the Subordinated Notes on behalf of LGII by
either manual or facsimile signature. If an Officer whose signature is on a
Subordinated Note no longer holds that office at the time the Trustee
authenticates the Subordinated Note or at any time thereafter, the Subordinated
Note shall be valid nevertheless.
A Subordinated Note shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Subordinated
Note. Such signature shall be conclusive evidence that the Subordinated Note has
been authenticated under this Indenture.
The Trustee shall authenticate Subordinated Notes for original issue
upon receipt of an Officers' Certificate signed by two Officers of LGII
directing the Trustee to authenticate the Subordinated Notes and certifying that
all conditions precedent to the issuance of the Subordinated 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 Subordinated Notes.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Subordinated 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.
SECTION 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
Subordinated 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 Subordinated Notes may
be presented for payment of principal, premium, if any, and interest (the
"PAYING AGENT"), an office or agency (which shall be located in the Borough of
Manhattan, the City of
New York, State of
New York) where Subordinated Notes may
be presented for conversion into LGII Common Stock pursuant to the terms hereof
(the "CONVERSION AGENT") and an office or agency where notices and demands to or
upon LGII in respect of the Subordinated Notes and this Indenture may be served.
The Registrar shall keep a register of the Subordinated 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. LGII may change any Paying Agent, Registrar or co-Registrar or Conversion
Agent upon 30 days' notice to the Trustee. Except as otherwise expressly
provided in this Indenture, LGII or any Affiliate thereof may act as Paying
Agent, Registrar or co-Registrar or Conversion 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, Paying Agent or Conversion Agent. If LGII fails to maintain a
Registrar, Paying Agent, Conversion 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, Conversion
Agent and agent for service of notices and demands in connection with the
Subordinated Notes.
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SECTION 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,
premium, if any, or interest on the Subordinated Notes (whether such money has
been distributed to it by LGII or any other obligor on the Subordinated Notes),
and LGII (or any other obligor on the Subordinated Notes) and the Paying Agent
shall notify the Trustee of any default by LGII (or any other obligor on the
Subordinated 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 Event of Default under Section 6.01
(a) or (b) with respect to the Subordinated 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 Subordinated Notes) shall have no further
liability for the money so paid over to the Trustee.
SECTION 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.
SECTION 2.07 TRANSFER AND EXCHANGE.
When Subordinated Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Subordinated Notes,
to exchange such Subordinated Notes for an equal principal amount of
Subordinated Notes of other authorized denominations or to convert such
Subordinated Notes, the Registrar or co-Registrar shall register the transfer or
make the exchange or conversion as requested if its requirements for such
transaction are met; PROVIDED, HOWEVER, that the Subordinated Notes surrendered
for transfer or exchange or conversion shall be duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the Registrar or
co-Registrar, or in the case of a conversion, notice of conversion substantially
in the form attached to the Subordinated Note or such other notice that is
acceptable to LGII, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing. To permit registrations of transfers and
exchanges, LGII shall execute and the Trustee shall authenticate Subordinated
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
2.07 or 9.05). The Registrar or co-Registrar shall not be required to register
the transfer of or exchange of any Subordinated Note (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Subordinated Notes and ending at the close of business on the day
of such mailing, (ii) selected for redemption in whole or in part pursuant to
Article 3, except the unredeemed portion of any Subordinated Note being redeemed
in part, and (iii) surrendered for conversion pursuant to Article 14.
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 Subordinated
Note shall be required to be reflected in a book entry.
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SECTION 2.08 REPLACEMENT NOTES.
If a mutilated Subordinated Note is surrendered to the Trustee or if
the Holder of a Subordinated Note claims that the Subordinated Note has been
lost, destroyed or wrongfully taken, LGII shall issue and the Trustee shall
authenticate a replacement Subordinated 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, Registrar or
Conversion Agent from any loss which any of them may suffer if a Subordinated
Note is replaced. LGII may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Subordinated Note, including reasonable fees and
expenses of counsel. Every replacement Subordinated Note is an additional
obligation of LGII.
SECTION 2.09 [INTENTIONALLY OMITTED].
SECTION 2.10 OUTSTANDING SUBORDINATED NOTES.
Subordinated Notes outstanding at any time are all the Subordinated
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 Subordinated Note shall cease to be outstanding if LGII or
any of its Subsidiaries holds the Subordinated Note.
If a Subordinated Note is replaced pursuant to Section 2.07 (other than
a mutilated Subordinated Note surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Subordinated Note is held by a bona fide purchaser. A mutilated
Subordinated Note ceases to be outstanding upon surrender of such Subordinated
Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or a Maturity Date the Paying Agent (other than
LGII or an Affiliate of LGII) holds cash sufficient to pay all of the principal
and interest due on the Subordinated Notes payable on that date, and is not
prohibited from paying such cash to the Holders of such Subordinated Notes
pursuant to the terms of this Indenture, or if on any date Subordinated Notes
are converted into LGII Common Stock pursuant to Article 14, then on and after
that date such Subordinated Notes cease to be outstanding and interest on them
shall cease to accrue.
SECTION 2.11 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Subordinated Notes have concurred in any direction, waiver or consent,
Subordinated 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 Subordinated
Notes that the Trustee knows or has reason to know are so owned shall be
disregarded.
SECTION 2.12 TEMPORARY NOTES.
Until definitive Subordinated Notes are prepared and ready for
delivery, LGII may prepare and the Trustee shall authenticate temporary
Subordinated Notes. Temporary Subordinated Notes shall be substantially in the
form of definitive Subordinated Notes but may have variations that LGII
considers appropriate for temporary Subordinated Notes. Without unreasonable
delay, LGII shall prepare and the Trustee shall authenticate definitive
Subordinated Notes in exchange for temporary Subordinated Notes. Until such
exchange, temporary Subordinated Notes shall be entitled to the same rights,
benefits and privileges as definitive Subordinated Notes. Holders of temporary
Subordinated Notes shall be entitled to all benefits of this Indenture.
SECTION 2.13 CANCELLATION.
LGII at any time may deliver Subordinated Notes to the Trustee for
cancellation. The Registrar, the Paying Agent and Conversion Agent shall forward
to the Trustee any Subordinated Notes surrendered to them for transfer,
exchange, payment or conversion. The Trustee, or at the direction of the
Trustee, the Registrar, the Paying Agent (other than LGII or an Affiliate of
LGII) or Conversion Agent, and no one else, shall promptly cancel and dispose of
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all Subordinated Notes surrendered for transfer, exchange, payment, conversion
or cancellation, subject to the record retention requirements of the Exchange
Act. Subject to Section 2.08, LGII may not issue new Subordinated Notes to
replace Subordinated Notes that it has paid or delivered to the Trustee for
cancellation. If LGII shall acquire any of the Subordinated Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Subordinated Notes unless and until the same
are surrendered to the Trustee for cancellation pursuant to this Section 2.13.
SECTION 2.14 DEFAULTED INTEREST.
If LGII defaults on a payment of interest on the Subordinated 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.
SECTION 2.15 CUSIP NUMBER.
LGII in issuing the Subordinated Notes may use a "CUSIP" number with
respect to the Subordinated Notes (if then generally in use), and if so, the
Trustee may use the CUSIP numbers in notices of redemption or 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 Subordinated Notes, and that reliance may be
placed only on the other identification numbers printed on the Subordinated
Notes. LGII will promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.16 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.
SECTION 2.17 ISSUANCE OF NOTES IN EXCESS OF $24,679,000 PURSUANT TO
PLAN OF REORGANIZATION.
LGII may issue and have outstanding at any time under this Indenture
any aggregate principal amount of Subordinated Notes exceeding $24,679,000 to
the extent required as a result of the application of the rounding provisions
set forth in Section VI.H.3.b of the Plan of Reorganization.
ARTICLE 3
REDEMPTION OF SUBORDINATED NOTES
SECTION 3.01 OPTIONAL REDEMPTION.
The Subordinated Notes are redeemable in whole or in part at the option
of LGII at 100% of the stated principal amount plus accrued and unpaid interest
to the Redemption Date; PROVIDED, HOWEVER, that prior to the second anniversary
of the Measurement Date LGII may not optionally redeem the Subordinated Notes
unless the Current Market Price of LGII Common Stock is at least 15% greater
than the then applicable Conversion Price. If LGII elects to redeem any
Subordinated Notes, in whole or in part, it shall notify the Trustee of the
Redemption Date and principal amount of Subordinated Notes to be redeemed.
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LGII shall notify the Trustee by an Officers' Certificate, stating that
such redemption will comply with the provisions hereof and of such Subordinated
Notes, of any redemption at least 45 days before the Redemption Date (unless a
shorter period is satisfactory to the Trustee).
SECTION 3.02 [INTENTIONALLY OMITTED].
SECTION 3.03 SELECTION OF SUBORDINATED NOTES TO BE REDEEMED.
If less than all the Subordinated Notes are to be redeemed, the
particular Subordinated Notes or portions thereof to be redeemed shall be
selected from the outstanding Subordinated Notes not previously called for
redemption either (a) by such method as the Trustee considers to be fair and
appropriate or (b) in such manner as complies with the requirements of the
principal national securities exchange, if any, on which the Subordinated Notes
being redeemed are listed. The amounts to be redeemed shall be equal to $1,000
or any integral multiple thereof.
The amount of Subordinated Notes shall be calculated as the aggregate
principal amount of Subordinated Notes originally issued hereunder less the
aggregate principal amount of any Subordinated Notes previously redeemed. The
Trustee shall make the selection not more than 60 days and not less than 30 days
before the redemption date from outstanding Subordinated Notes not previously
called for redemption.
The Trustee shall promptly notify LGII and the Registrar in writing of
the Subordinated Notes selected for redemption and, in the case of any
Subordinated Notes selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Subordinated Notes shall
relate, in the case of any Subordinated Note redeemed or to be redeemed only in
part, to the portion of the principal amount of such Subordinated Note that has
been or is to be redeemed.
SECTION 3.04 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Subordinated Notes to be redeemed, at the address of
such Holder appearing in the Subordinated Note register maintained by the
Registrar.
All notices of redemption shall identify the Subordinated Notes to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(c) that, unless LGII defaults in making the redemption
payment, interest on Subordinated Notes called for redemption ceases to accrue
on and after the Redemption Date, and the only remaining right of the Holders of
such Subordinated Notes is to receive payment of the Redemption Price and
accrued interest, if any, upon surrender to the Paying Agent of the Subordinated
Notes redeemed;
(d) if any Subordinated Note is to be redeemed in part, the
portion of the principal amount (equal to $1,000 or any integral multiple
thereof) of such Subordinated Note to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such original Subordinated
Note to the Paying Agent, a new Subordinated Note or Subordinated Notes in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued without charge to the Holder;
(e) that Subordinated Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price and accrued
interest, if any, and the name and address of the Paying Agent;
(f) the CUSIP number, if any, relating to such Subordinated
Notes, but no representation is made as to the correctness or accuracy of any
such CUSIP numbers;
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(g) the paragraph of the Subordinated Notes or Section of this
Indenture pursuant to which the Subordinated Notes are being redeemed;
(h) the Holder's right to convert pursuant to Article 14 and
the last available date for conversion prior to the Redemption Date;
(i) the current Conversion Price; and
(j) the name and address of the Conversion Agent.
Notice of redemption of Subordinated Notes to be redeemed at the
election of LGII shall be given by LGII or by the Trustee in the name of LGII.
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Subordinated Notes called for
redemption (unless surrendered for conversion into LGII Common Stock pursuant to
the terms hereof) become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender to the Paying Agent, such Subordinated Notes
called for redemption shall be paid at the Redemption Price plus accrued and
unpaid interest to the Redemption Date.
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, LGII shall deposit with the Paying
Agent an amount of money in same day funds sufficient to pay the Redemption
Price of, and accrued interest on, all the Subordinated Notes or portions
thereof which are to be redeemed on that date (other than those surrendered for
conversion into LGII Common Stock), other than Subordinated Notes or portions
thereof called for redemption on that date that have been delivered by LGII to
the Trustee for cancellation. The Paying Agent shall promptly return to LGII any
money deposited with the Paying Agent by LGII in excess of the amounts necessary
to pay the Redemption Price of, and accrued and unpaid interest on, all
Subordinated Notes to be redeemed (including any amounts deposited for the
redemption of Subordinated Notes that are instead converted into LGII Common
Stock).
If LGII complies with the preceding paragraph, then, unless LGII
defaults in the payment of such Redemption Price, interest on the Subordinated
Notes to be redeemed will cease to accrue on and after the applicable Redemption
Date, whether or not such Subordinated Notes are presented for payment, and such
Subordinated Notes will no longer be convertible into LGII Common Stock. If any
Subordinated Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, premium, if any, and, to the extent
lawful, accrued and unpaid interest thereon shall, until paid, bear interest
from the Redemption Date at the rate provided in the Subordinated Notes and
shall remain convertible into LGII Common Stock until the principal, premium, if
any, and accrued interest thereon has been paid or duly provided for.
SECTION 3.07 SUBORDINATED NOTES REDEEMED OR PURCHASED IN PART.
Upon surrender to the Paying Agent of a Subordinated Note that is to be
redeemed in part, LGII shall execute and the Trustee shall authenticate and
deliver to the Holder of such Subordinated Note without service charge, a new
Subordinated Note or Subordinated Notes of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange
for, the unredeemed portion of the principal of the Subordinated Note so
surrendered that is not redeemed.
SECTION 3.08 SECTION 3.08 CONVERSION ARRANGEMENT ON CALL FOR
REDEMPTION.
In connection with any redemption of Subordinated Notes, LGII may
arrange for the purchase and conversion of any Subordinated Notes by an
agreement with one or more investment bankers or other purchasers to purchase
such Subordinated Notes by paying to the Trustee in trust for the Holders of the
Subordinated Notes, on or before the date fixed for redemption, an amount in
cash not less than the applicable redemption price, together with interest
accrued to (but excluding) the date fixed for redemption, of such Subordinated
Notes. Notwithstanding
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anything to the contrary contained in this Article 3, the obligation of LGII to
pay the redemption price of such Subordinated Notes, together with interest
accrued to (but excluding) the date fixed for redemption shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Subordinated Notes
not duly surrendered for conversion by the Holders thereof may, at the option of
LGII, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 14) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the date fixed for redemption
(and the right to convert any such Subordinated Notes by such purchasers shall
be extended through such time), subject to payment of the above amount as
aforesaid (and if such payment is not duly made, the Holders' conversion right
extends to the date of such payment). At the direction of LGII, the Trustee
shall hold and dispose of any such amount paid to it in the same manner as it
would monies deposited with it by LGII for the redemption of Subordinated Notes
in accordance with this Article 3.
ARTICLE 4
COVENANTS
LGII hereby covenants as follows, from and after the Closing Date and
continuing so long as any amount remains unpaid on any Subordinated Note:
SECTION 4.01 PAYMENT OF SUBORDINATED NOTES.
LGII will pay, or cause to be paid, the principal of and interest on
the Subordinated Notes on the dates and in the manner provided in the
Subordinated 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 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 Subordinated Notes
pursuant to the terms of this Indenture.
LGII will pay interest on overdue principal at the rate and in the
manner provided in the Subordinated Notes; it shall pay interest on overdue
installments of interest at the same rate and in the same manner, to the extent
lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
LGII will maintain in the Borough of Manhattan, The City of
New York,
an office or agency (which may be an office of the Trustee, Registrar or
co-Registrar, or Conversion Agent) where Subordinated Notes may be surrendered
for registration of transfer or exchange or for presentation for payment or
conversion and where notices and demands to or upon LGII in respect of the
Subordinated 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 Subordinated 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 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 an agent of the Trustee located at x/x Xxxxxxxxxx Xxxxx Xxxxxxx,
0xx Xxxxx, XXXX Department, 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, as such office
of LGII in accordance with this Section 4.02 and Section 2.04.
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SECTION 4.03 CORPORATE EXISTENCE.
Subject to Article 5, LGII 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 its and its Restricted Subsidiaries' corporate, company or
partnership existence and rights (charter and statutory), material licenses
and/or material franchises; PROVIDED, HOWEVER, that LGII and the Restricted
Subsidiaries shall not be required to preserve any such existence, rights,
licenses or franchises if LGII or, in the case of any Restricted Subsidiary,
such Restricted Subsidiary, shall reasonably determine that (a) the preservation
thereof is no longer desirable in the conduct of the business of LGII and its
Restricted Subsidiaries taken as a whole and (b) the loss thereof is not
materially adverse to either LGII and its Restricted Subsidiaries taken as a
whole or the ability of LGII to otherwise satisfy its obligations hereunder; and
PROVIDED FURTHER that LGII and each Subsidiary may engage in the Restructuring
Transactions. LGII shall cause, on the date hereof, it and its Restricted
Subsidiaries to account for at least 90% of the consolidated assets and revenues
of LGII.
SECTION 4.04 PAYMENT OF TAXES AND OTHER CLAIMS.
LGII 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 LGII or any of its Restricted Subsidiaries or
upon the income, profits or property of LGII or any of its Restricted
Subsidiaries, and (b) all lawful claims for labor, materials and supplies that,
in each case, if unpaid, might by law become a Lien upon the property of LGII or
any Restricted Subsidiary; PROVIDED, HOWEVER, that LGII shall not 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 materially adverse to either LGII and its Restricted Subsidiaries taken
as a whole or the ability of LGII to otherwise satisfy its obligations
hereunder.
SECTION 4.05 MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND RECORDS;
COMPLIANCE WITH LAW.
(a) LGII shall, and shall cause each of its Restricted
Subsidiaries 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 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
LGII or any of its Restricted Subsidiaries from discontinuing the operation and
maintenance of any of its properties or assets if such discontinuance is, in the
judgment of LGII or such Restricted Subsidiary, desirable in the conduct of its
business and if such discontinuance is not materially adverse to either LGII and
its Restricted Subsidiaries taken as a whole or the ability of LGII to otherwise
satisfy its obligations hereunder.
(b) LGII shall, and shall cause each of its Restricted
Subsidiaries 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) LGII shall, and shall cause each of its Restricted
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all business and financial transactions of LGII
and each of its Restricted Subsidiaries and reflect on its financial statements
adequate accruals and appropriations to reserves, all in accordance with GAAP
consistently applied to LGII and its Restricted Subsidiaries taken as a whole.
(d) LGII shall, and shall cause each of its Restricted
Subsidiaries to, comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would be
materially adverse to either LGII and its Subsidiaries taken as a whole or to
the ability of LGII to otherwise satisfy its obligations hereunder.
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SECTION 4.06 COMPLIANCE CERTIFICATES.
(a) LGII will deliver to the Trustee within 45 days after the
end of each of LGII's first three fiscal quarters and within 90 days after the
end of LGII's 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
an event that, with notice or lapse of time or both, would constitute a default
by LGII 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 LGII beginning after the Measurement
Date. LGII 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 compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice provided herein.
(b) LGII shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by LGII's independent public
accountants stating (i) that their audit examination has included a review of
the terms of this Indenture and the Subordinated Notes as they relate to
accounting matters, and (ii) whether, in connection with their audit
examination, any Default or Event of Default under this Indenture or an event
that, 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) LGII will deliver to the Trustee as soon as possible, and
in any event within 10 Business Days after LGII becomes aware or should
reasonably have become aware of the occurrence of any Default, Event of Default
or an event that, with notice or lapse of time or both, would constitute a
default by LGII under any Indebtedness, an Officers' Certificate specifying such
Default, Event of Default or default and what action LGII is taking or proposes
to take with respect thereto.
SECTION 4.07 LIMITATION ON INDEBTEDNESS.
LGII will not, and will not permit any of its Restricted Subsidiaries
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, LGII and its Restricted Subsidiaries
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 LGII is at least
equal to, during any fiscal year in which LGII has any scheduled principal
payment due with respect to the Five-Year Notes, 1:1, and during any other year,
1.25:1.
SECTION 4.08 LIMITATION ON RESTRICTED PAYMENTS.
LGII will not, and will not permit any of its Restricted Subsidiaries
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 LGII 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 LGII or any of its Restricted
Subsidiaries (other than (i) dividends or distributions payable solely in
Capital Stock of LGII (other than Redeemable Capital Stock) or in options,
warrants or other rights to purchase Capital Stock of LGII (other than
Redeemable Capital Stock) and (ii) dividends or other distributions to the
extent declared or paid to LGII or any Wholly Owned Subsidiary of LGII);
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(b) purchase, redeem, defease or otherwise acquire or retire
for value any Capital Stock of LGII or any of its Restricted Subsidiaries (other
than any such Capital Stock of a Wholly Owned Subsidiary of LGII);
(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 (i) subordinate or junior in right of
payment to the Subordinated Notes or (ii) Pari Passu Indebtedness (other than in
respect of the Exit Facility, any such subordinated or Pari Passu Indebtedness
owned by LGII or a Wholly Owned Subsidiary of LGII, Two-Year Notes, Five-Year
Notes or Seven-Year Notes); 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 LGII 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, LGII would be able to incur $1.00 of additional
Indebtedness pursuant to Section 4.07 (other than Permitted 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 LGII accrued on a cumulative basis during the period
beginning on the Measurement Date and ending on the last day of the fiscal
quarter of LGII 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 LGII for such period shall
be a deficit, minus 100% of such deficit) PLUS (2) the aggregate Net Cash
Proceeds received by LGII either 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
LGII to any Person (other than to LGII or a Restricted Subsidiary) 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) $10,000,000. For purposes of the
preceding clause (C)(2), the value of the aggregate net proceeds received by
LGII 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 such Indebtedness, options, warrants
or rights plus the incremental cash amount received by LGII 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 LGII or any
Restricted Subsidiary in exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to LGII from any Person (other
than a Restricted Subsidiary) or (y) issue and sale of other shares of Capital
Stock (other than Redeemable Capital Stock) of LGII to any Person (other than to
a Restricted Subsidiary) provided such Capital Stock shall be excluded from the
calculation under clause (C)(2) above;
(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 Subordinated Notes by exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to LGII from any Person (other
than a Restricted Subsidiary) or (y) issue and sale of (1) Capital Stock (other
than Redeemable Capital Stock) of LGII to any Person (other than a Restricted
Subsidiary), PROVIDED, HOWEVER, that the amount of any such net proceeds that
are utilized for any such redemption,
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repurchase or other acquisition or retirement shall be excluded from clause
(C)(2) of the preceding paragraph, or (2) Indebtedness of LGII issued to any
Person (other than a Restricted Subsidiary), so long as such Indebtedness is
Indebtedness that is subordinate or junior in right of payment to the
Subordinated Notes 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 LGII from
any Person (other than a Restricted Subsidiary) or (y) issue and sale of (1)
Capital Stock (other than Redeemable Capital Stock) of LGII to any Person (other
than a Restricted Subsidiary); 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 LGII issued to any Person (other than a
Restricted Subsidiary), so long as such Indebtedness is Pari Passu Indebtedness
or Indebtedness that is subordinate or junior in right of payment to the
Subordinated Notes in the same manner and at least to the same extent as the
Indebtedness so purchased, exchanged, redeemed, acquired or retired; PROVIDED,
FURTHER, nothing contained in this Indenture shall limit or restrict the right
of LGII and/or its Subsidiaries to make any principal payment on, or purchase,
defease, redeem, Refinance or otherwise retire for value, prior to any scheduled
maturity, scheduled payment or other Stated Maturity, any Indebtedness in
respect of the Exit Facility;
(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;
(vi) Investments constituting Restricted Payments
that are permitted by subparagraphs (v) and (vi) of the proviso to Section 4.13;
and
(vii) the Restructuring Transactions.
In computing the amount of Restricted Payments previously made for
purposes of clause (C) of the first full paragraph of this Section 4.08,
Restricted Payments made under the preceding clauses (v) and (vi) shall be
included and those under clauses (i), (ii), (iii), (iv) and (vii) shall not be
so included.
SECTION 4.09 LIMITATION ON ISSUANCES AND SALE OF STOCK BY RESTRICTED
SUBSIDIARIES.
(a) LGII (i) will not permit any of its Restricted
Subsidiaries to issue any Preferred Stock (other than Preferred Stock issued to
LGII or a Wholly Owned Subsidiary of LGII), and (i) will not permit any Person
to own any Preferred Stock of any Restricted Subsidiary (other than Preferred
Stock owned by LGII or a Wholly Owned Subsidiary of LGII); 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 owned by LGII 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.
(b) LGII will not, or permit any Restricted Subsidiary to,
transfer, convey, sell or dispose of any Capital Stock of any Restricted
Subsidiary (other than (i) sales, for valid business reasons, of non-voting
equity comprising up to 40% of the Capital Stock of any Restricted Subsidiary to
operators of funeral homes and/or cemeteries and (ii) with respect to DSP
General Partner, Inc., a Texas corporation, Directors Succession Planning, Inc.,
a California corporation, Rose Hills Holding Corp., a Delaware corporation, any
Subsidiary of any such Person, and any successors to any of the foregoing)
unless such transaction complies with Section 4.12 hereof.
(c) LGII will not permit any Restricted Subsidiary (other than
DSP General Partner, Inc., a Texas corporation, Directors Succession Planning,
Inc., a California corporation, Rose Hills Holding Corp., a Delaware
corporation, any Subsidiary of any such Person, and any successors to any of the
foregoing) to issue any of its Equity Interests (other than (i) to LGII or one
of its Wholly Owned Subsidiaries or (ii) issuances, for valid business reasons,
of non-voting equity comprising up to 40% of the Capital Stock of any Restricted
Subsidiary to operators of funeral homes and/or cemeteries) unless such
transaction complies with Section 4.12 hereof.
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SECTION 4.10 LIMITATION ON LIENS.
LGII will not, and will not permit any of its Restricted Subsidiaries
to, create, incur, assume or suffer to exist any Liens (other than (a) Liens
existing as at the Measurement Date, (b) Liens securing the Exit Facility or the
Five-Year Notes or pursuant to Sections 7.08 or 8.02 of each of the Two-Year
Indenture, the Five-Year Indenture, the Seven-Year Indenture or this Indenture,
(c) Liens in favor of LGII or any Wholly Owned Subsidiary, (d) Liens securing
Indebtedness that is incurred to refinance Indebtedness that has been secured by
a Lien permitted under the provisions of this Indenture and that 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 LGII or any
of its Restricted Subsidiaries not securing the Indebtedness so refinanced, and
(e) Permitted 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 exceeds $50,000,000.
SECTION 4.11 CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, 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 Subordinated Notes properly tendered and not withdrawn at a purchase
price (the "CHANGE OF CONTROL PURCHASE PRICE") equal to 100% of their principal
amount plus accrued and unpaid interest. 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 Subordinated 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 Subordinated 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 Subordinated Note, the Change of Control Purchase
Date and the date on which the Change of Control Offer expires;
(c) that any Subordinated Note not tendered for payment will
continue to accrue interest in accordance with the terms thereof;
(d) that, unless LGII defaults in the payment of the purchase
price, any Subordinated 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 Subordinated Notes purchased
pursuant to a Change of Control Offer must surrender their Subordinated 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 Subordinated 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 facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Subordinated Notes the Holder delivered for purchase, the Subordinated
Note certificate number (if any) and a statement that such Holder is withdrawing
its election to have such Subordinated Notes purchased;
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(g) that Holders whose Subordinated Notes are purchased only
in part will be issued Subordinated Notes equal in principal amount to the
unpurchased portion of the Subordinated Notes surrendered;
(h) the instructions that Holders must follow in order to
tender their Subordinated Notes; and
(i) such other information concerning LGII and the Change of
Control offer as LGII reasonably determines is appropriate.
LGII shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Subordinated Notes as a result of a Change of Control.
On the Change of Control Purchase Date, LGII shall (i) accept for
payment Subordinated 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
Subordinated Notes or portions thereof so tendered and accepted, and (iii)
deliver to the Trustee the Subordinated Notes so accepted together with an
Officers' Certificate setting forth the Subordinated Notes or portions thereof
tendered to and accepted for payment by LGII. The Paying Agent shall promptly
mail or deliver to the Holders of Subordinated 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 Subordinated Note equal in principal
amount to any unpurchased portion of the Subordinated Note surrendered. Any
Subordinated 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 Change of
Control Purchase Price for all Subordinated Notes properly tendered and not
withdrawn, LGII will be obliged to purchase all such Subordinated 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 Subordinated Notes
validly tendered and not withdrawn under such Change of Control Offer. LGII 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 Subordinated Notes pursuant to a Change of Control Offer.
SECTION 4.12 DISPOSITION OF PROCEEDS OF ASSET SALES. (a) LGII will not,
and will not permit any of its Restricted Subsidiaries to, make any Asset Sale
unless (i) LGII or such Restricted Subsidiary, as the case may be, receives
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 (ii) except with
respect to assets listed on Schedule 4.12 hereto, 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 Exit Facility (as required by the
terms thereof) or are applied to payment of Two-Year Notes, Five-Year Notes or
Seven-Year Notes, LGII or such Restricted Subsidiary, as the case may be, may,
within 270 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 LGII and its Restricted Subsidiaries as existing on the
Measurement 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 Exit Facility or
Two-Year Notes, Five-Year Notes or Seven-Year Notes nor invested in Replacement
Assets within the 270-day period described above exceeding, in the aggregate,
$10,000,000 in any fiscal year of LGII constitute "EXCESS PROCEEDS" subject to
disposition as provided below.
(b) When the aggregate amount of Excess Proceeds equals or
exceeds $10,000,000, LGII shall make an offer to purchase (an "ASSET SALE
OFFER"), from all holders of Subordinated Notes, not more than 40 Business Days
thereafter, an aggregate principal amount of Subordinated Notes equal to such
Excess
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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 Subordinated Notes not less than 20 Business Days nor more than
40 Business Days before the date on which LGII intends to consummate the Asset
Sale Offer ("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:
(i) that the Asset Sale Offer is being made pursuant
to this Section 4.12;
(ii) the Asset Sale Offer Price (including the amount
of accrued interest, if any) for each Subordinated Note, the Asset Sale Purchase
Date and the date on which the Asset Sale Offer expires;
(iii) that any Subordinated Note not tendered or
accepted for payment will continue to accrue interest in accordance with the
terms thereof;
(iv) that, unless LGII defaults in the payment of the
Asset Sale Offer Price, any Subordinated Note accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the Asset Sale
Purchase Date;
(v) that Holders electing to have Subordinated Notes
purchased pursuant to an Asset Sale Offer must surrender their Subordinated
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 Date and must complete any
form of letter of transmittal proposed by LGII and reasonably acceptable to the
Trustee and the Paying Agent;
(vi) 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 facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Subordinated Notes
the Holder delivered for purchase, the Subordinated Note certificate number (if
any) and a statement that such Holder is withdrawing its election to have such
Subordinated Notes purchased;
(vii) that if Subordinated 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 Subordinated
Notes on a pro rata basis among the Subordinated Notes tendered (with such
adjustments as may be deemed appropriate by LGII so that only Subordinated Notes
in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(viii) that Holders whose Subordinated Notes are
purchased only in part will be issued new Subordinated Notes equal in principal
amount to the unpurchased portion of the Subordinated Notes surrendered;
(ix) the instructions that Holders must follow in
order to tender their Subordinated Notes; and
(x) such other information concerning LGII and the
Asset Sale Offer as LGII reasonably determines is appropriate.
LGII shall comply with the requirements under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with any Asset Sales and Asset Sale
Offers.
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(d) On the Asset Sale Purchase Date, LGII shall (i) accept for
payment, on a pro rata basis, Subordinated 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 Subordinated Notes or portions thereof so tendered and accepted and
(iii) deliver to the Trustee the Subordinated Notes so accepted together with an
Officers' Certificate setting forth the Subordinated Notes or portions thereof
tendered to and accepted for payment by LGII. The Paying Agent shall promptly
mail or deliver to Holders of Subordinated 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 Subordinated Note equal
in principal amount to any unpurchased portion of the Subordinated Note
surrendered. Any Subordinated Notes not so accepted shall be promptly mailed or
delivered by LGII to the Holder thereof.
(e) LGII will publicly announce the results of the Asset Sale
Offer not later than the second Business Day following the Asset Sale Purchase
Date. To the extent that the aggregate principal amount of Subordinated Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, LGII
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.
(f) LGII 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 Subordinated Notes pursuant
to the Asset Sale Offer.
SECTION 4.13 LIMITATION ON TRANSACTIONS WITH INTERESTED PERSONS.
LGII will not, and will not permit any of its Restricted Subsidiaries
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 LGII or any "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of 5% or
more of the Common Stock of LGII at any time outstanding ("INTERESTED PERSONS"),
unless (a) such transaction or series of related transactions are on terms that
are no less favorable to LGII 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 LGII or Interested Persons, and (b)
with respect to a transaction or series of transactions involving aggregate
payments or value equal to or greater than $25,000,000, LGII has obtained a
written opinion from an Independent Financial Advisor stating that the terms of
such transaction or series of transactions are fair to LGII or its Restricted
Subsidiary, as the case may be, from a financial point of view; PROVIDED,
HOWEVER, that this covenant will not restrict LGII or any Restricted Subsidiary
from (i) paying dividends in respect of its Capital Stock permitted under
Section 4.08, (ii) paying reasonable and customary fees to directors of LGII or
any Restricted Subsidiary who are not otherwise employees of LGII or any
Restricted Subsidiary, (iii) entering into transactions with its Wholly Owned
Subsidiaries or permitting its Wholly Owned Subsidiaries from entering into
transactions with LGII or other Wholly Owned Subsidiaries of LGII, (iv) creating
employee stock ownership plans or similar benefit plans, (v) making loans or
advances to officers, employees or consultants of LGII and its Restricted
Subsidiaries for travel and moving expenses in the ordinary course of business
for bona fide business purposes of LGII and its Restricted Subsidiaries, (vi)
making other loans or advances to officers, employees or consultants of LGII and
its Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes of LGII and its Restricted Subsidiaries not in excess of
$5,000,000 in the aggregate at any one time outstanding, (vii) making payments
to officers or employees of LGII or its Restricted Subsidiaries pursuant to
obligations undertaken, at a time when such Persons were not officers or
employees of LGII or its Restricted Subsidiaries, in connection with arms'
length Asset Acquisitions, (viii) purchase or redemption of Two-Year Notes,
Five-Year Notes or Seven-Year Notes at their Fair Market Value, or (ix) engaging
in the Restructuring Transactions.
SECTION 4.14 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
LGII will not, and will not permit any of its Restricted Subsidiaries
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 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
LGII or
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any other Restricted Subsidiary, (c) make loans or advances to, or any
Investment in, LGII or any other Restricted Subsidiary, (d) transfer any of its
properties or assets to LGII or any other Restricted Subsidiary, or (e)
guarantee any Indebtedness of LGII or any other Restricted Subsidiary, 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 LGII or any Restricted Subsidiary, (iii)
customary restrictions on transfers of property subject to a Lien permitted
under the provisions of this Indenture which could not materially adversely
affect LGII's ability to satisfy its obligations under the provisions of this
Indenture and the Subordinated Notes, (iv) any agreement or other instrument of
a Person acquired by LGII or any Restricted Subsidiary (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 Measurement Date (including
under the Exit Facility, the Two-Year Notes, the Five-Year Notes and the
Seven-Year Notes) or encumbrances and restrictions in permitted refinancings or
replacements thereof which are no less favorable to the holders of the
Subordinated Notes than those contained in the Indebtedness so refinanced or
replaced.
SECTION 4.15 FUTURE GUARANTORS. LGII shall cause each Restricted
Subsidiary that Guarantees any Indebtedness of LGII or any other Restricted
Subsidiary to at the same time execute and deliver to the Trustee a Guarantee
Agreement pursuant to which such Restricted Subsidiary will Guarantee payment of
the Subordinated Notes on the same terms and conditions as those set forth in
Article 12 of this Indenture.
SECTION 4.16 [INTENTIONALLY OMITTED.]
SECTION 4.17 COMMISSION REPORTS.
LGII 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
LGII has a class of securities registered under the Exchange Act. In accordance
with the provisions of TIA Section 314(a), LGII 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 LGII
would have been required to make such filing), copies of such reports. LGII also
shall comply with the other provisions of TIA Section 314(a). In addition, LGII
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 LGII's stockholders, to the Holders at their addresses as set forth
in the register of securities maintained by the Registrar.
SECTION 4.18 RULE 144A INFORMATION REQUIREMENT.
If at any time LGII is no longer subject to the reporting requirements
of the Exchange Act, it will furnish to the Holders or beneficial holders of the
Subordinated Notes and prospective purchasers of the Subordinated Notes
designated by the holders of the Subordinated Notes, upon their request, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.19 WAIVER OF STAY, EXTENSION OR USURY LAWS.
LGII 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 that would prohibit or forgive LGII from paying all or any portion of the
principal of, premium, if any, or interest on the Subordinated Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) LGII 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.
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ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN LGII MAY MERGE, ETC.
(a) Other than pursuant to the Restructuring Transactions,
LGII will not, 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 LGII will not permit any of its Restricted
Subsidiaries 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 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:
(i) either (A) if the transaction or series of
transactions is a merger or consolidation, LGII or the Restricted Subsidiary, as
the case may be, shall be the surviving Person of such merger or consolidation,
or (B) the Person formed by such consolidation or into which LGII or such
Restricted Subsidiary, as the case may be, is merged or to which the properties
and assets of 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, or the District of Columbia 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
Subordinated Notes and the performance and observance of every covenant and
obligation of this Indenture and the Subordinated Notes on the part of LGII, to
be performed or observed and, in each case, this Indenture shall remain in full
force and effect;
(ii) 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 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 other than Permitted
Indebtedness pursuant to Section 4.07 (assuming a market rate of interest with
respect to such additional Indebtedness);
(iii) 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 LGII or the Surviving Entity, as the case may be,
is at least equal to the Consolidated Net Worth of LGII immediately before such
transaction or series of transactions; and
(iv) 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 LGII with respect to periods subsequent to the effective time of
such merger, consolidation or transfer of assets.
(b) Other than pursuant to the Restructuring Transactions,
LGII shall not permit any Subsidiary Guarantor to consolidate with or merge with
or into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to any Person unless:
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(i) except in the case of a Subsidiary Guarantor that
has been disposed of in its entirety to another Person (other than to LGII or an
Affiliate of LGII), whether through a merger, consolidation or sale of Capital
Stock or assets, if in connection therewith LGII provides an Officers'
Certificate to the Trustee to the effect that LGII will comply with its
obligations under Section 4.12 in respect of such disposition, the resulting,
surviving or transferee Person (if not such Subsidiary) shall be a Person
organized and existing under the laws of the jurisdiction under which such
Subsidiary was organized or under the laws of the United States of America, or
any state thereof or the District of Columbia, and such Person shall expressly
assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the
obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such
transaction or transactions on a pro forma basis (and treating any Indebtedness
that becomes an obligation of the resulting, surviving or transferee Person as a
result of such transaction as having been issued by such Person at the time of
such transaction), no Default shall have occurred and be continuing; and
(iii) LGII delivers to the Trustee an Officers'
Certificate stating that such consolidation, merger or transfer and such
Guarantee Agreement, if any, complies with this Indenture.
SECTION 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 LGII in accordance with Section 5.01 hereof, the successor Person or
Persons formed by such consolidation or into which 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, LGII under this Indenture and the
Subordinated Notes with the same effect as if such successor had been named as
LGII 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 LGII with respect to
periods subsequent to the effective time of such merger, consolidation or
transfer of assets.
ARTICLE 6
REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" with respect to the Subordinated Notes means any
of the following events:
(a) default in the payment of the principal of or premium, if
any, on any Subordinated Note when the same becomes due and payable (upon Stated
Maturity, acceleration, redemption, required purchase, scheduled principal
payment or otherwise);
(b) default in the payment of an installment of interest on
any Subordinated Note, when the same becomes due and payable, and any such
Default continues for a period of 30 days;
(c) failure to perform or observe any material term, covenant
or agreement contained in Sections 4.11, 4.12 or 5.01;
(d) failure to perform or observe any other term, covenant or
agreement contained in the Subordinated Notes or pursuant to the provisions of
this Indenture (other than Defaults specified in clause (a), (b), or (c) above)
and such Default continues for a period of 30 days after written notice of such
Default requiring LGII to remedy the same shall have been given (i) to LGII by
the Trustee or (ii) to LGII and the Trustee by Holders of at least 25% in
aggregate principal amount of the Subordinated Notes then outstanding;
(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 $25,000,000, either individually or in the
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aggregate, shall be entered against LGII or any Restricted Subsidiary 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;
(f) default under any Indebtedness under which LGII or any
Restricted Subsidiary then has outstanding in excess of $25,000,000 that
continues beyond any applicable grace period set forth in the documentation
governing such Indebtedness and either (x) such default arises from LGII's or a
Restricted Subsidiary's failure to pay when due principal of or interest on any
such Indebtedness or (y) such Indebtedness is due and payable in full or such
default has resulted in the acceleration of the maturity of such Indebtedness;
(g) LGII or any Significant Subsidiary of LGII 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
(6) takes any corporate action to authorize
or effect any of the foregoing;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(1) is for relief against LGII or any
Significant Subsidiary of LGII in an involuntary case or
proceeding,
(2) appoints a Custodian of LGII or any
Significant Subsidiary of LGII for all or substantially all of
its properties, or
(3) orders the liquidation of LGII or any
Significant Subsidiary of LGII, and in each case the order or
decree remains unstayed and in effect for 60 days; or
(i) actual invalidity (or the assertion thereof by LGII or any
Subsidiary) of any Subsidiary Guarantee resulting from acts or omissions of
LGII, other than in accordance with the terms hereof or thereof.
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, the Paying Agent, any Holder, any holder of
Indebtedness or any of their respective agents.
SECTION 6.02 ACCELERATION.
If an Event of Default (other than as specified in Section 6.01(g) or
6.01(h) with respect to LGII or any Significant Subsidiary) occurs and is
continuing with respect to the Subordinated Notes, the Trustee, by written
notice to LGII, or the Holders of at least 25% in aggregate principal amount of
the Subordinated Notes then outstanding, by written notice to the Trustee and
LGII, may declare the principal of, premium, if any, and accrued
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and unpaid interest, if any, on all of the Subordinated Notes to be due and
payable immediately, upon which declaration, all amounts payable in respect of
the Subordinated Notes shall be immediately due and payable. If an Event of
Default specified in Section 6.01(g) or 6.01(h) occurs with respect to LGII or
any Significant Subsidiary and is continuing, then the principal of, premium, if
any, and accrued and unpaid interest, if any, on all of the Subordinated 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
Subordinated Notes.
After a declaration of acceleration hereunder with respect to the
Subordinated 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 Subordinated Notes, by written notice to
LGII and the Trustee, may rescind such declaration if: (a) 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 Subordinated Notes, (iii) the principal of and premium,
if any, on any Subordinated Notes that have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Subordinated Notes, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal that has become due
otherwise than by such declaration of acceleration at the rate borne by the
Subordinated 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
Subordinated 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.
SECTION 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 Subordinated Notes or to
enforce the performance of any provision of the Subordinated Notes or this
Indenture.
All rights of action and claims under this Indenture or the
Subordinated Notes may be enforced by the Trustee even if it does not possess
any of the Subordinated 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.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Subject to the provisions of Section 6.07, 9.02 and 9.07, the Holders
of not less than a majority in aggregate principal amount of the outstanding
Subordinated Notes by notice to the Trustee may, on behalf of the Holders of all
the Subordinated Notes, 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.
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of not less than a majority in aggregate principal amount
of the outstanding Subordinated 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, with the advice of counsel, refuse to follow any
direction (a) that conflicts with any rule of law or this Indenture, (b) that
the Trustee determines in good faith would be unduly prejudicial to the rights
of another Noteholder, or (c) that would 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,
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FURTHER, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction.
SECTION 6.06 LIMITATION ON SUITS.
No Holder of any Subordinated Notes shall have any right to institute
any proceeding or pursue any remedy with respect to this Indenture or the
Subordinated Notes unless:
(a) the Holder gives written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount
of the outstanding Subordinated Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee reasonable indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 45
days after receipt of the request and the offer and, if requested, provision of
indemnity; and
(e) during such 45-day period the Holders of a majority in
aggregate principal amount of the outstanding Subordinated 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 Subordinated Note on or after the respective due dates
set forth in such Subordinated Note.
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
SECTION 6.07 RIGHT OF HOLDERS TO RECEIVE PAYMENT AND CONVERT
SUBORDINATED NOTES.
Notwithstanding any other provision in this Indenture but subject to
the provisions of Article 13, the right of any Holder of a Subordinated Note to
receive payment of the principal of, premium, if any, and interest on such
Subordinated Note, on or after the respective Stated Maturities expressed in
such Subordinated Note, to have such Holder's Subordinated Notes converted into
LGII Common Stock in accordance with the terms hereof, or to bring suit for the
enforcement of any such payment on or after the respective Stated Maturities or
conversion, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 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 or any other obligor on the
Subordinated 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
Subordinated 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.
SECTION 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 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 LGII (or any other obligor upon the Subordinated Notes),
their creditors or their property and shall be entitled and
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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 Subordinated 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.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.08;
Second: to the Holders for interest accrued on the
Subordinated Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Subordinated
Notes for interest;
Third: to the Holders for principal amounts (including any
premium) owing under the Subordinated Notes, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Subordinated Notes for principal (including any
premium); and
Fourth: the balance, if any, to LGII.
The Trustee, upon prior written notice to LGII, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 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 Subordinated Notes.
SECTION 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 Subordinated Note 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, 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.
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ARTICLE 7
TRUSTEE
SECTION 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 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 that 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.
SECTION 7.02 RIGHTS OF TRUSTEE.
Subject to the TIA:
(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,
and 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, and the
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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; and
(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
thereby.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee, any Paying Agent, Registrar, Conversion Agent or any other
agent of LGII, in its individual or any other capacity, may become the owner or
pledgee of Subordinated Notes and, subject to Sections 7.11 and 7.12 and TIA
Sections 310 and 311, may otherwise deal with LGII and its Subsidiaries with the
same rights it would have if it were not the Trustee, Paying Agent, Registrar,
Conversion Agent or such other agent.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Subordinated Notes, it shall not be accountable for
LGII's use or application of the proceeds from the Subordinated Notes, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee and it shall not be responsible for any
statement in the Subordinated Notes other than the Trustee's certificate of
authentication.
SECTION 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 after such Default or Event of
Default becomes known to the Trustee; PROVIDED, HOWEVER, that, except in the
case of a Default in the payment of the principal of, premium, if any, or
interest on any Subordinated 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.
SECTION 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
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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.
SECTION 7.07 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each __________ beginning with the __________
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 __________ 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 Subordinated Notes are listed.
LGII shall notify the Trustee in writing if the Subordinated Notes
become listed on any securities exchange.
SECTION 7.08 COMPENSATION AND INDEMNITY.
LGII covenants and agrees 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
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 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 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 promptly of any claim asserted against
the Trustee for which it may seek indemnity. LGII shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and LGII shall pay the reasonable fees and expenses of such counsel. LGII need
not pay for any settlement made without its prior written consent. LGII 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 in this Section 7.08, the
Trustee shall have a Lien prior to the Subordinated 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
Subordinated 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 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 pursuant to Article 8 and/or the termination of this
Indenture.
SECTION 7.09 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying LGII. The Holders of a majority
in principal amount of the outstanding Subordinated 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;
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(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 as
provided in Section 7.08, 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 outstanding Subordinated 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, LGII or the
Holders of at least 10% in principal amount of the outstanding Subordinated
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 under Section 7.08 shall continue for the benefit
of the retiring Trustee.
SECTION 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.
SECTION 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 $500,000,000. 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 specified in this Article.
SECTION 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.
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF THE OBLIGATION OF LGII.
LGII may terminate its obligations under the Subordinated Notes and
this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Subordinated Notes previously
authenticated and delivered (other than destroyed, lost or stolen Subordinated
Notes that have been replaced or paid or Subordinated 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 LGII has paid all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article 3, LGII shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of the
redemption of all of the Subordinated Notes under arrangements satisfactory to
the Trustee for the giving of such notice or (ii) all Subordinated Notes have
otherwise become due and payable hereunder;
(b) 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 Subordinated Notes to maturity or
redemption, 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 Subordinated Notes;
(c) no Default or Event of Default with respect to this
Indenture or the Subordinated 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 is a party or by which it is bound;
(d) LGII shall have paid all other sums payable by it
hereunder; and
(e) LGII shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of LGII's obligation under the
Subordinated Notes 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 shall survive until the Subordinated
Notes are no longer outstanding pursuant to Section 2.10. After the Subordinated
Notes are no longer outstanding, LGII's obligations in Sections 7.08, 8.03, 8.04
and 8.05 shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of LGII's obligations under the
Subordinated Notes except for those surviving obligations specified above.
SECTION 8.02 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) LGII may, at its option by Board Resolution of the Board
of Directors of LGII, at any time, with respect to the Subordinated Notes, elect
to have either paragraph (b) or paragraph (c) below be applied to the
outstanding Subordinated Notes upon compliance with the conditions set forth in
paragraph (d).
(b) Upon LGII's exercise under paragraph (a) of the option
applicable to this paragraph (b), LGII shall be deemed to have been released and
discharged from its obligations with respect to the outstanding Subordinated
Notes 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
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indebtedness represented by the outstanding Subordinated 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
Subordinated Notes and this Indenture insofar as such Subordinated 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 Subordinated 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
Subordinated Notes when such payments are due, (ii) LGII's obligations with
respect to such Subordinated Notes under Sections 2.06, 2.07 and 4.02, and, with
respect to the Trustee, under Section 7.08, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, and (iv) this Article 8. 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 Subordinated Notes.
(c) Upon the exercise by LGII under paragraph (a) of the
option applicable to this paragraph (c), LGII shall be released and discharged
from its obligations under any covenant contained in Article 5 and in Sections
4.05 through 4.17 with respect to the outstanding Subordinated Notes on and
after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Subordinated Notes shall thereafter be deemed to
be not "OUTSTANDING" for the purpose of any direction, waiver, consent or
declaration or act of Holders (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 Subordinated Notes, LGII 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, but, except as specified above, the remainder of
this Indenture and such Subordinated 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 Subordinated
Notes:
(i) 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 Subordinated Notes, (A) cash, in United
States dollars, in an amount sufficient to pay principal of, premium, if any,
and interest on the outstanding Subordinated Notes on the Maturity Date, (B)
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 Subordinated Notes not later
than one day before the due date of any payment, or (C) 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 Subordinated Notes (except lost, stolen or
destroyed Subordinated 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 Subordinated 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 Subordinated Notes, and to secure the payment obligations of LGII under this
Section 8.02(d), the Trustee shall have a perfected Lien prior to all other
creditors on all such money and proceeds;
(ii) 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 Subordinated 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
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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);
(iii) such legal defeasance or covenant defeasance
shall not cause the Trustee to have a conflicting interest with respect to any
securities of LGII;
(iv) 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 is a party or by which it is bound;
(v) in the case of an election under paragraph (b)
above, LGII shall have delivered to the Trustee an Opinion of Counsel stating
that (A) LGII has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) 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 Subordinated 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;
(vi) 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 Subordinated 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;
(vii) in the case of an election under either
paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (A) the
trust funds will not be subject to any rights of any other holders of
Indebtedness of LGII, and (B) 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, no opinion needs
to be given as to the effect of such laws on the trust funds except the
following: (x) assuming such trust funds remained in the Trustee's possession
prior to such court ruling to the extent not paid to Holders of Subordinated
Notes, the Trustee will hold, for the benefit of the Holders of Subordinated
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, (y) the Holders of Subordinated Notes will be entitled to receive
adequate protection of their interests in such trust funds if such trust funds
are used, and (z) no property, rights in property or other interests granted to
the Trustee or the Holders of Subordinated 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 (y); and
(viii) LGII shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (A) 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 (B) if any other Indebtedness of LGII
shall then be outstanding or committed, such legal 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)
pursuant to paragraph (d) above in respect of the outstanding Subordinated Notes
shall be held in trust and applied by the Trustee (or other qualifying trustee),
in accordance with the provisions of such Subordinated 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 (or other qualifying trustee) may
determine, to the Holders of such Subordinated 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 pay and indemnify the Trustee (or other qualifying 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
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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 Subordinated Notes.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee (or other qualifying 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 (or other qualifying
trustee), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent legal defeasance or covenant defeasance.
SECTION 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 Subordinated Notes.
SECTION 8.04 REPAYMENT TO LGII.
Subject to Sections 7.08, 8.01 and 8.02, the Trustee shall promptly pay
to LGII, 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, 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 payment to LGII, Holders
entitled to money must look solely to LGII 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.
SECTION 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 obligations under this Indenture and the Subordinated 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 has made any payment of principal of, premium,
if any, or interest on any Subordinated Notes because of the reinstatement of
its obligations, LGII shall be subrogated to the rights of the Holders of such
Subordinated Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 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
Subordinated Notes without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
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(b) to comply with Article 5;
(c) to comply with any requirements of the Commission to
effect or maintain the qualification of this Indenture under the TIA; or
(d) 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.
SECTION 9.02 WITH CONSENT OF HOLDERS.
Subject to Section 6.04, LGII, when authorized by a Board Resolution,
and the Trustee may amend this Indenture or the Subordinated Notes with the
written consent of the Holders of not less than a majority in aggregate
principal amount of the Subordinated Notes then outstanding, and the Holders of
not less than a majority in aggregate principal amount of the Subordinated Notes
then outstanding by written notice to the Trustee may waive future compliance by
LGII with any provision of this Indenture or the Subordinated 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 9.01, may not:
(a) reduce the percentage in outstanding aggregate principal
amount of Subordinated Notes the Holders of which must consent to an amendment,
supplement or waiver of any provision of this Indenture or the Subordinated
Notes;
(b) reduce or change the rate or time for payment of interest
on any Subordinated Note;
(c) change the currency in which any Subordinated Note, or any
premium or interest thereon, is payable;
(d) reduce the principal amount outstanding of or extend the
fixed maturity of any Subordinated Note or alter the redemption provisions with
respect thereto;
(e) make the principal of, premium, if any, or interest on any
Subordinated Note payable in money other than that stated in the Subordinated
Note;
(f) modify this Section 9.02 or Section 6.04 or Section 6.07
or Section 9.07;
(g) 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;
(h) modify or change any provision of this Indenture affecting
the ranking or subordination of the Subordinated Notes in a manner adverse to
the Holders;
(i) impair the right to institute suit for the enforcement of
any payment on or with respect to the Subordinated Notes;
(j) release all or substantially all Subsidiary Guarantors and
other guarantors, if any, from guarantees of the Indebtedness evidenced by the
Subordinated Notes; or
(k) impairing the conversion rights of a Holder.
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.
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After an amendment, supplement or waiver under this Section 9.02
becomes effective, LGII shall mail to the Holder of each Subordinated 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.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment of or supplement to this Indenture or the Subordinated
Notes shall comply with the TIA as then in effect.
SECTION 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 Subordinated Note or portion of that Subordinated Note that
evidences the same debt as the consenting Holder's Subordinated Note, even if
notation of the consent is not made on any Subordinated Note. However, any such
Holder or subsequent Holder may revoke the consent as to his Subordinated Note
or portion of a Subordinated 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 consenting Holder and subsequent Holder of
a Subordinated Note or portion of a Subordinated Note that evidences the same
debt as the consenting Holder's Subordinated Note.
SECTION 9.05 NOTATION ON OR EXCHANGE OF SUBORDINATED NOTES.
If an amendment, supplement or waiver changes the terms of a
Subordinated Note, the Trustee shall (in accordance with the specific direction
of LGII) request the Holder of the Subordinated Note to deliver it to the
Trustee. The Trustee shall (in accordance with the specific direction of LGII)
place an appropriate notation on the Subordinated Note about the changed terms
and return it to the Holder. Alternatively, if LGII or the Trustee so
determines, LGII in exchange for the Subordinated Note shall issue and the
Trustee shall authenticate a new Subordinated Note that reflects the changed
terms. Failure to make the appropriate notation or issue a new Subordinated Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06 TRUSTEE MAY SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 9 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.
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SECTION 9.07 EFFECT OF AMENDMENT TO OR WAIVER UNDER SEVEN-YEAR
INDENTURE.
Notwithstanding anything to the contrary contained herein or in any
Subordinated Note, any amendment to or waiver of covenants, defaults or other
aspects of the Seven-Year Indenture and Seven-Year Notes properly approved by or
on behalf of the requisite number of holders of Seven-Year Notes shall also,
without any action by LGII, the Trustee, any Holder or any other Person,
immediately become effective in the same fashion with respect to this Indenture
and the Subordinated Notes; PROVIDED that at the time of such amendment or
waiver there is a greater aggregate principal amount of Seven-Year Notes
outstanding than the then outstanding aggregate principal amount of Subordinated
Notes; AND PROVIDED FURTHER, that any amendment or waiver with respect to (i)
the principal amount outstanding of any Subordinated Note, (ii) the rate or time
for payment of interest on any Subordinated Note, (iii) the fixed maturity of
any Subordinated Note, and (iv) the obligation to pay in full in cash the
principal of, premium, if any, or interest on any Subordinated Note when due,
shall require the applicable consent of each Holder affected thereby as required
under Section 9.02 hereof.
ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
MISCELLANEOUS
SECTION 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.
SECTION 11.02 NOTICES.
Any notice or communication shall be sufficiently given if in writing
and delivered in person sent by facsimile (with confirmed answerback) or mailed
by first class mail, postage prepaid, addressed as follows:
If to LGII or any Restricted Subsidiary or Subsidiary Guarantor:
Xxxxxx Group International, Inc.
0000 Xxxxxxxx Xxxxxx X.
Xxxxx Xxxxx III
00xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Facsimile Number: (000) 000-0000
Attention: Chief Financial Officer
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With a copy to:
Xxxxxx Group International, Inc.
0000 Xxxxxxxx Xxxxxx X.
Xxxxx Xxxxx III
00xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Facsimile Number: (000) 000-0000
Attention: Treasurer
If to the Trustee to:
Xxxxx Fargo Bank Minnesota, N.A.
Sixth Street and Marquette Avenue
MAC N9303-120
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust - Xxxxxx Administrator
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 Subordinated 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.
SECTION 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 Subordinated
Notes. The obligors, the Trustee, the Registrar and any other Person shall have
the protection of TIA Section 312(c).
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by LGII to the Trustee to take any
action under this Indenture, LGII 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.
SECTION 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:
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(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;
(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.
SECTION 11.06 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.07 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture and the
Subordinated Notes. The Trustee, LGII and the Holders agree to submit to the
jurisdiction of the courts of (or federal courts located in) the State of New
York in any action or proceeding arising out of or relating to this Indenture or
the Subordinated Notes.
SECTION 11.08 CONSENT TO SERVICE OF PROCESS.
LGII irrevocably (a) agrees that any legal suit, action or proceeding
arising out of or based upon this Indenture and the Subordinated 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 that 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. LGII has appointed CT Corporation System,
000 Xxxxxx Xxxxxx, Xxx Xxxx Xxxx, XX 00000, 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. LGII
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 shall be deemed, in every respect,
effective service of process upon LGII. 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.
SECTION 11.09 NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of LGII or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.10 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or Affiliate, as such, of
LGII or any Subsidiary Guarantor shall not have any liability for any
obligations of LGII under the Subordinated Notes or this Indenture or any
Subsidiary Guarantee or for any claim based on, in respect of or by reason of,
such obligations or their creation. Each Holder by accepting a Subordinated Note
waives and releases all such liability.
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SECTION 11.11 SUCCESSORS.
All agreements of LGII in this Indenture and the Subordinated Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 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.
SECTION 11.13 SEPARABILITY.
In case any provision in this Indenture or the Subordinated 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.
SECTION 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.
SECTION 11.15 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Subordinated 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.
ARTICLE 12
SUBSIDIARY GUARANTIES
SECTION 12.01 GUARANTIES.
Each Wholly Owned Subsidiary of LGII organized under the laws of any
state or commonwealth of the United States (other than Xxxxxx Life Insurance
Group Inc., a Delaware corporation, Rosehills Holding Corp., a Delaware
corporation, and any Subsidiary of the foregoing) hereby unconditionally and
irrevocably guarantees (in such capacity, a "SUBSIDIARY GUARANTOR"), jointly and
severally, to each Holder and to the Trustee and its successors and assigns (a)
the full and punctual payment of principal of, premium, if any, and interest on
the Subordinated Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of LGII under this
Indenture and the Subordinated Notes and (b) the full and punctual performance
within applicable grace periods of all other obligations of LGII under this
Indenture and the Subordinated Notes (all the foregoing being hereinafter
collectively called the "OBLIGATIONS"). Each Subsidiary Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice or further assent from such Subsidiary Guarantor and that such Subsidiary
Guarantor will remain bound under this Article 12 notwithstanding any extension
or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to LGII of any of the Obligations and also waives notice of
protest for nonpayment. Each Subsidiary Guarantor waives notice of any default
under the Subordinated Notes or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against LGII or any other Person under this Indenture, the Subordinated
Notes or any other agreement or otherwise; (b) any extension or renewal of any
thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Subordinated Notes or any other
agreement; (d) the release of any security held by any Holder or the Trustee for
the Obligations or any of them; (e) the failure of
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any Holder or the Trustee to exercise any right or remedy against any other
guarantor of the Obligations; or (f) except as set forth in Section 12.06, any
change in the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Obligations.
Except as set forth in Sections 8.01, 8.02, 12.02 and 12.06, the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Subsidiary Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Subordinated Notes or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing that may or might in any manner or to any
extent vary the risk of such Subsidiary Guarantor or would otherwise operate as
a discharge of such Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of, premium, if any, or interest
on any Obligation is rescinded or must otherwise be restored by any Holder or
the Trustee upon the bankruptcy or reorganization of LGII or otherwise.
In furtherance of the foregoing and not in limitation of any other
right that any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of LGII to pay the
principal of, premium, if any, or interest on any Obligation when and as the
same shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Obligation, each Subsidiary
Guarantor hereby promises to and shall, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (a) the unpaid amount of such Obligations,
(b) accrued and unpaid interest on such Obligations (but only to the extent not
prohibited by law) and (c) all other monetary Obligations of LGII to the Holders
and the Trustee.
Each Subsidiary Guarantor agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (a) the maturity of the
Obligations Guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of such Subsidiary Guarantor's Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations Guaranteed hereby, and (b) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Subsidiary Guarantor for the purposes of this
Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 12.02 LIMITATION ON LIABILITY.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations Guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that
can be hereby Guaranteed without rendering this Indenture, as it relates to such
Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 12.03 SUCCESSORS AND ASSIGNS.
This Article 12 shall be binding upon each Subsidiary Guarantor and its
successors and assigns and shall enure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
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assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Subordinated Notes shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 12.04 NO WAIVER.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 12 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits that either may have under this Article 12 at law, in equity, by
statute or otherwise.
SECTION 12.05 MODIFICATION.
No modification, amendment or waiver of any provision of this Article
12, nor the consent to any departure by any Subsidiary Guarantor therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to
any other or further notice or demand in the same, similar or other
circumstances.
SECTION 12.06 RELEASE OF SUBSIDIARY GUARANTOR.
Upon the sale or other disposition (including by way of consolidation
or merger) of a Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of such Subsidiary Guarantor (in each case other
than a sale or disposition to LGII or another Subsidiary Guarantor), in a
transaction permitted by this Indenture (including, without limitation, the
Restructuring Transactions), such Subsidiary Guarantor shall be deemed released
from all obligations under this Article 12 without any further action required
on the part of the Trustee or any Holder. At the request and expense of LGII,
and upon receipt of an Officers' Certificate, the Trustee shall execute and
deliver an appropriate instrument evidencing such release.
ARTICLE 13
SUBORDINATION OF THE SUBORDINATED NOTES
SECTION 13.01 SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
LGII and each Subsidiary Guarantor covenant and agree, and each Holder
of a Subordinated Note, by acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article 13,
the Subordinated Indebtedness is hereby expressly made subordinate and subject
in right of payment to the prior Payment In Full of all Senior Indebtedness.
SECTION 13.02 PAYMENT OVER OF PROCEEDS UPON INSOLVENCY, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to LGII, any Subsidiary Guarantor
or to their creditors, as such, or to any of their assets, or (b) any
liquidation, dissolution or winding up of LGII or any Subsidiary Guarantor,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (c) any assignment for the benefit of creditors or any marshaling
of assets and liabilities of LGII or any Subsidiary Guarantor, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
Payment In Full of all amounts due or to become due on or in respect of all
Senior Indebtedness before the Holders of the Subordinated Notes are entitled to
receive any payment on account of principal (including, without limitation,
sinking fund payments, if any) of (or premium, if any) or interest on the
Subordinated Notes and before any other payment of Subordinated Indebtedness may
be made or otherwise provided for, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment of all
Senior Indebtedness remaining unpaid (to the extent necessary for Payment In
Full of all Senior Indebtedness, after giving effect to any concurrent
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indefeasible payment or distribution in cash or other payment satisfactory to
the holders of Senior Indebtedness to or for the holders of Senior
Indebtedness), any payment or distribution of any kind or character, whether in
cash, property or securities, including any such payment or distribution that
may be payable or deliverable by reason of the payment of any other Indebtedness
of LGII or any Subsidiary Guarantor being subordinated to the payment of the
Subordinated Notes, that may be payable or deliverable in respect of the
Subordinated Notes in any such case, proceeding, dissolution, liquidation,
winding up or other event.
If, contrary to the foregoing provisions of this Section, the Trustee
or any Holder receives any payment or distribution of assets of LGII or any
Subsidiary Guarantor of any kind or character, whether in cash, property or
securities, including any such payment or distribution that may be payable or
deliverable by reason of the payment of any other Indebtedness of LGII or any
Subsidiary Guarantor being subordinated to the payment of the Subordinated
Notes, before all Senior Indebtedness is Paid In Full, then such payment or
distribution shall be held in trust by the Trustee or such Holder for the
holders of Senior Indebtedness, and if such facts shall, at or prior to the time
of such payment or distribution, have been made known to the Trustee, shall be
held by the Trustee in a separate account, and shall be paid over or delivered
forthwith to the holders of Senior Indebtedness pro rata (or, if otherwise
required by applicable law, to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of LGII or Subsidiary Guarantor, as the case may be, for
application to the payment of all Senior Indebtedness) until Payment In Full of
all Senior Indebtedness, after giving effect to any concurrent indefeasible
payment or distribution in cash or other payment satisfactory to the holders of
Senior Indebtedness to or for the holders of Senior Indebtedness.
SECTION 13.03 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
Neither LGII nor any Subsidiary Guarantor may pay any Subordinated
Indebtedness if (i) any Payment Default occurs with respect to any Senior
Indebtedness (and such default is not cured or waived in accordance with the
express terms (if any) of the instruments and agreements (as the case may be)
evidencing such Senior Indebtedness) or would occur upon making such payment on
Subordinated Indebtedness or (ii) any Non-Payment Default occurs with respect to
any Senior Indebtedness and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms (and such acceleration is not rescinded
in accordance with the express terms (if any) of the instruments and agreements
(as the case may be) evidencing such Senior Indebtedness), in either case,
unless such Senior Indebtedness is Paid In Full. In addition (and without
limiting the preceding sentence), following the occurrence of any Non-Payment
Default with respect to any Designated Senior Indebtedness (or if a Non-Payment
Default with respect to any Designated Senior Indebtedness would occur upon
making such payment on Subordinated Indebtedness) which permits the holder or
holders of such Designated Senior Indebtedness to accelerate the maturity
thereof, upon the receipt by the Trustee and LGII of written notice (a "PAYMENT
BLOCKAGE NOTICE") from a Senior Trustee or the Agent Bank, neither the Trustee
nor LGII may pay any Subordinated Indebtedness during the period (the "PAYMENT
BLOCKAGE PERIOD") commencing on the date of such receipt by the Trustee and LGII
of such written notice and ending on the earliest of (i) the date on which such
Non-Payment Default shall have been cured or waived in accordance with the
express terms (if any) of the instruments and agreements (as the case may be)
evidencing such Designated Senior Indebtedness, (ii) the date on which all such
Designated Senior Indebtedness shall have been discharged and Paid In Full, and
(iii) the 180th day after the date of the receipt by the Trustee and LGII of
such written notice. Any number of such Payment Blockage Notices may be given;
PROVIDED that notwithstanding any other provision of this Indenture, (i) only
one Payment Blockage Notice may be given within any consecutive 360-day period,
(ii) a Payment Blockage Notice shall be deemed to include notice of all other
Non-Payment Defaults under such indenture or instrument that are actually known
by the Senior Trustee or the Agent Bank, as applicable, to be continuing at the
time of the event of default specified in such Payment Blockage Notice (each
such specified or other known event of default, a "CONTINUING NON-PAYMENT
DEFAULT"), and (iii) no Continuing Non-Payment Default that existed or was
continuing on the date of delivery of any Payment Blockage Notice may be the
basis for a subsequent Payment Blockage Notice unless such Continuing
Non-Payment Default shall have been cured or waived for a period of not less
than 90 days.
If, notwithstanding the foregoing, LGII or a Subsidiary Guarantor makes
any payment to the Trustee or the Holder of any Subordinated Note prohibited by
the foregoing provisions of this Section, then and in such event such payment
shall be held in trust by the Trustee or any such Holder for the appropriate
holders of such Senior Indebtedness, and if such facts shall, at or prior to the
time of such payment, have been made known to the Trustee, shall be held by the
Trustee in a separate account, and shall be paid over and delivered forthwith to
the appropriate
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holders of such Senior Indebtedness until the amounts of such Senior
Indebtedness then due are paid in full or provision made therefor.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.02 would be applicable.
SECTION 13.04 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the prior Payment In Full of all Senior Indebtedness, the
Holders shall be subrogated to the extent of the payments or distributions made
to the holders of such Senior Indebtedness pursuant to the provisions of this
Article 13 to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the Subordinated Indebtedness shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the Holders
of the Subordinated Notes or the Trustee would be entitled except for the
provisions of this Article 13, and no payments over pursuant to the provisions
of this Article 13 to the holders of Senior Indebtedness by Holders of the
Subordinated Notes or the Trustee, shall, as among LGII, the Subsidiary
Guarantors, their creditors other than holders of Senior Indebtedness and the
Holders, be deemed to be a payment or distribution by LGII or any Subsidiary
Guarantor to or on account of the Senior Indebtedness.
SECTION 13.05 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article 13 are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article 13 or elsewhere in this Indenture or in the Subordinated Notes is
intended to or shall, as between LGII and the Subsidiary Guarantors and the
Holders of Subordinated Notes: (a) impair the obligations of LGII and the
Subsidiary Guarantors, which are absolute and unconditional, to pay to the
Holders the principal of (and premium, if any) and interest on the Subordinated
Notes as and when the same shall become due and payable in accordance with their
terms; (b) affect the relative rights against LGII and the Subsidiary Guarantors
of the Holders or (c) prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 13 of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Except as expressly provided in this Article 13, nothing contained in
this Article 13 shall affect the obligation of LGII and the Subsidiary
Guarantors to make, or prevent LGII or the Subsidiary Guarantors from making,
payments of the principal of, premium, if any, and interest on the Subordinated
Notes in accordance with the provisions hereof and thereof, or shall prevent the
Trustee from applying any moneys deposited with it hereunder to the payment of
the principal of, premium, if any, and interest on the Subordinated Notes.
SECTION 13.06 TRUSTEE TO EFFECTUATE SUBORDINATION.
(a) Each Holder of a Subordinated Note by acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate, as between the Holders and the
holders of Senior Indebtedness, the subordination provided in this Article 13
and appoints the Trustee as attorney-in-fact for any and all such purposes.
(b) The Agent Bank and each Senior Trustee are hereby
irrevocably authorized to demand specific performance of the provisions of this
Article 13, whether or not LGII shall have complied with any of the provisions
hereof applicable to it, any time when the Holders or the Trustee shall have
failed, or threatened to fail, to comply with any of the provisions of this
Article 13 applicable to them. The Holders and the Trustee hereby irrevocably
waive any defense based on the adequacy of a remedy at law that might be
asserted as a bar to such remedy of specific performance. The Holders and the
Trustee hereby acknowledge that the provisions of this Article 13 are intended
to be enforceable at all times, whether before or after the commencement of a
proceeding referred to in Section 13.02.
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SECTION 13.07 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of LGII or any
Subsidiary Guarantor or by any act or failure to act by any such holder, or by
any non-compliance by LGII or any Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 13 or the obligations
hereunder of the Trustee or the Holders to the holders of Senior Indebtedness,
do any one or more of the following:
(i) supplement, renew, extend, accelerate or
otherwise change the time for payment of, or other terms relating to, the Senior
Indebtedness, or any portion thereof, or otherwise modify, amend or change the
terms of any promissory note or other agreement, document or instrument
(including, without limitation, documents evidencing Designated Senior
Indebtedness) relating to any Senior Indebtedness, including, without
limitation, any increase or decrease of the principal amount thereof, the rate
of interest thereon or the fees payable in connection therewith;
(ii) waive or otherwise consent to noncompliance with
any provision of any agreement, document or instrument (including, without
limitation, documents evidencing Designated Senior Indebtedness) relating to any
Senior Indebtedness;
(iii) accept partial payments on any Senior
Indebtedness;
(iv) receive, take and hold security or collateral
for the payment or performance of any Senior Indebtedness and exchange, enforce,
waive, substitute, liquidate, terminate, abandon, impair, fail to perfect,
subordinate, transfer, alter, release or otherwise deal with any such security
or collateral;
(v) apply any and all such security or collateral and
direct the order or manner of sale thereof;
(vi) settle, release, compromise, collect or
otherwise liquidate any Senior Indebtedness;
(vii) add, release or substitute any one or more
guarantors, makers or endorsers of all or any part of any Senior Indebtedness
and otherwise deal with LGII, or any guarantor, maker or endorser;
(viii) apply any and all payments or recoveries from
LGII or from any guarantor, maker or endorser of all or any part of the Senior
Indebtedness in such order as any holder of Senior Indebtedness (or any agent
therefor) may determine, whether such Senior Indebtedness is secured or
unsecured or guaranteed or not guaranteed by others; and
(ix) exercise or refrain from exercising any rights
against LGII or any other Person.
SECTION 13.08 NOTICE TO TRUSTEE.
LGII shall give prompt written notice to the Trustee of any fact known
to LGII that would prohibit the making of any payment to or by the Trustee in
respect of the Subordinated Notes. Notwithstanding the provisions of this
Article 13 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the Subordinated Notes,
unless and until the Trustee shall have received written notice thereof at least
one Business Day prior to any such payment date from LGII, any Holder, the Agent
Bank, a holder of any class of Senior Indebtedness
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or any one or more agents acting on behalf of any one or more holders of any
class of Senior Indebtedness who (other than the Agent Bank or a Senior Trustee)
shall have been certified by LGII or otherwise established to the reasonable
satisfaction of the Trustee to be such holder, or from any trustee therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 7.01 of the Indenture, shall be entitled in all
respects to assume that no such facts exist.
Subject to the provisions of Section 7.01 of the Indenture, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
agent therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or agent therefor). If the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 13, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee, as to the amount
of Senior Indebtedness held by such Person, the extent to which such person is
entitled to participate in such payment or distribution and any other acts
pertinent to the rights of such Person under this Article 13, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 13.09 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of LGII or any Subsidiary
Guarantor referred to in this Article 13, the Trustee, subject to the provisions
of Section 7.01 of the Indenture, and the Holders shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or other proceeding is pending, or a certificate of
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee
for the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
LGII and the Subsidiary Guarantors, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 13.
SECTION 13.10 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders,
absent negligence or willful misconduct, if it shall pay over or distribute to
Holders or to LGII or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
13 or otherwise.
SECTION 13.11 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 13 with respect to any Senior Indebtedness that
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 13.12 ARTICLE APPLICABLE TO PAYING AGENTS.
If at any time any Paying Agent other than the Trustee has been
appointed by LGII and is acting hereunder as such, the term "Trustee" as used in
this Article 13 shall in such case (unless the context otherwise requires) be
constructed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article 13 in addition to or in place of the Trustee; provided, however, that
this Section 13.12 shall not apply to LGII or any Affiliate of LGII if it or
such Affiliate acts as Paying Agent.
SECTION 13.13 AUTHORIZATION TO FILE CLAIMS: REINSTATEMENT OF
SUBORDINATION.
(a) Each of the Agent Bank and each Senior Trustee is hereby
irrevocably authorized and empowered (in its own name or in the name of the
Holders or the Trustee or otherwise), but shall have no obligation,
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to file claims and proofs of claim in respect of the Subordinated Notes in
proceedings referred to in Section 13.02 in the event such claims or proofs of
claim have not been filed prior to 30 days before such filings would be barred.
(b) The provisions of this Article 13 shall continue to be
effective or be immediately reinstated, as the case may be, if at any time any
payment of any Senior Designated Indebtedness is rescinded or must otherwise be
returned by the Agent Bank, any Lender or any other holder of any Senior
Designated Indebtedness in connection with the insolvency, bankruptcy or
reorganization of LGII, any Subsidiary Guarantor or otherwise, all as though
such payment had not been made.
SECTION 13.14 NO SUSPENSION OF REMEDIES.
(a) The failure to make a payment of Subordinated Indebtedness
by reason of any provision of this Article 13 shall not be construed as
preventing the occurrence of an Event of Default under Section 6.01. Nothing
contained in this Article 13 shall limit the right of the Trustee or the Holders
to take any action to accelerate the maturity of the Subordinated Notes pursuant
to Article 6 or to pursue any rights or remedies hereunder or under applicable
law, subject to the rights, if any, under this Article 13 of the holders, from
time to time, of Senior Indebtedness; PROVIDED, HOWEVER, that neither the
Trustee nor the Holders may accelerate amounts owing under the Subordinated
Notes pursuant to the first sentence of Section 6.02 without first providing at
least five Business Days prior written notice to the Agent Bank and Senior
Trustees.
(b) Notwithstanding any provisions to the contrary in the
Indenture, so long as any Payment Blockage Period or Payment Default exists,
neither the Trustee nor any Holder may for 120 days after the first date of such
Payment Blockage Period or until such Payment Default is cured (i) ask, demand
or xxx for any payment, distribution or any other remedy in respect of the
Subordinated Indebtedness or (ii) commence or join with any other creditor
(other than the Lenders, the Agent Bank, the Senior Trustees, and other holders
of Designated Senior Indebtedness) in commencing any proceeding referred to in
Section 13.02; PROVIDED, HOWEVER, this clause (b) shall not restrict the ability
of the Trustee or any Holder to file a proof of claim in respect of Indebtedness
owed under this Indenture or Subordinated Notes.
SECTION 13.15 MISCELLANEOUS.
(a) Each Holder, the Trustee, LGII and each Subsidiary
Guarantor will, at LGII's sole expense and at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the Agent Bank or a
Senior Trustee may request, in order to protect any right or interest granted or
purported to be granted by the provisions of this Article 13 or to enable the
Agent Bank or Senior Trustee to exercise and enforce rights and remedies
hereunder.
(b) All rights and interests under this Article 13 of the
Lenders, the Agent Bank and any other holder of Senior Indebtedness, and all
agreements and obligations of the Holders, the Trustee, LGII and the Subsidiary
Guarantors under this Article 13 shall remain in full force and effect
irrespective of:
(i) the invalidity or unenforceability of any
security or collateral for or guaranty of all or any part of the Senior
Indebtedness or of any promissory note or other agreement, document or
instrument (including, without limitation, documents evidencing Designated
Senior Indebtedness) evidencing or in respect of all or any Senior Indebtedness,
or the lack of perfection or continuing perfection or failure of priority of any
security or collateral for all or any part of the Senior Indebtedness or any
guaranty therefor;
(ii) the absence of any attempt to collect the Senior
Indebtedness, or any portion thereof, or other action to enforce the same;
(iii) any failure to acquire, perfect or maintain any
security interest in, or to preserve any rights to, any security or collateral
for all or any part of the Senior Indebtedness or any guaranty therefor;
(iv) any election in any proceeding instituted under
Bankruptcy Law;
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(v) any borrowing or grant of a security interest or
other Lien by LGII or any Subsidiary Guarantor as debtor-in-possession,
or extension of credit, under Bankruptcy Law;
(vi) the disallowance, under Bankruptcy Law, of all
or any portion of any claim(s) for repayment of the Senior Indebtedness;
(vii) any use of cash collateral under Bankruptcy
Law;
(viii) any agreement or stipulation as to the
provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any Lien in favor of any holder
of Senior Indebtedness (or any agent therefor) for any reason;
(x) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding,
including without limitation, any discharge of, or bar or stay against
collecting or accelerating, all or any of the Senior Indebtedness in or as a
result of any such proceeding;
(xi) any failure to file or enforce a claim against
LGII, any Subsidiary Guarantor or estate thereof in any bankruptcy or insolvency
case or proceeding; or
(xii) any other circumstance that might otherwise
constitute a legal or equitable defense to, or discharge of, LGII, a Subsidiary
Guarantor or a subordinated creditor.
(c) The Holders, the Trustee and LGII and the Subsidiary
Guarantors each hereby waive promptness, diligence, notice of acceptance and any
other notice with respect to any of the Senior Indebtedness and this Article 13
and any requirement that the Agent Bank, any Lender, Senior Trustee or any other
holder of Senior Indebtedness protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against LGII or any other Person or any collateral.
(d) No failure on the part of the Agent Bank, a Senior
Trustee, any Lender, or any other holder of Senior Indebtedness to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof,
and no single or partial exercise of any right hereunder shall preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(e) The provisions of this Article 13 constitute a continuing
agreement and (i) shall remain in full force and effect until the Senior
Indebtedness shall have been Paid In Full, (ii) shall be binding upon the
Holders and the Trustee, LGII and the Subsidiary Guarantors, and their
successors and assigns, (iii) shall inure to the benefit of and be enforceable
by the Agent Bank, the Lenders, the Senior Trustees, and each other holder of
Senior Indebtedness and their successors, participants, transferees and assigns
and (iv) may not be amended or modified in any way (and neither may the
definitions used therein) that would impair the rights of any holder of
Designated Senior Indebtedness without the written consent of such impaired
holder, and in any event no such amendment or modification shall be effective
against any holder of Designated Senior Indebtedness who has not consented
thereto in writing. Without limiting the generality of the foregoing clause any
Lender may assign or otherwise transfer any promissory note issued under the
Exit Facility held by it, or grant any participation in any of its rights or
obligations under the Exit Facility, and any holder of Two-Year Notes, Five-Year
Notes, or Seven-Year Notes may assign or otherwise transfer any such securities,
to any other Person, and such other Person shall thereupon become vested with
all the rights in respect thereof granted to such Lender or holder, as the case
may be, herein or otherwise. The provisions of this Article 13 are intended to
be for the benefit of, and shall be enforceable directly by, the Lenders, any
one or more agents acting on their respective behalf (including, without
limitation, the Agent Bank), and the Senior Trustees.
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SECTION 13.16 CERTAIN CONVERSIONS NOT DEEMED PAYMENT.
For the purposes of this Article 13 only, the issuance and delivery of
LGII Common Stock (and related cash in place of fractional shares delivered
pursuant to Section 14.03, if any) upon conversion of Subordinated Notes in
accordance with Article 14 hereof shall not be deemed to constitute a payment or
distribution on account of the principal of (and premium, if any) or interest on
Subordinated Notes or on account of the purchase or other acquisition of
Subordinated Notes.
Nothing contained in this Article 13 or elsewhere in this Indenture or
in the Subordinated Notes is intended to or shall impair, as among LGII, its
creditors (other than holders of Senior Indebtedness) and the Holders of
Subordinated Notes, the right, which is absolute and unconditional, of the
Holder of any Subordinated Notes to convert such Subordinated Notes in
accordance with Article 14 hereof.
ARTICLE 14
CONVERSION OF NOTES
SECTION 14.01 RIGHT TO CONVERT.
Any Holder has the right, in accordance with the terms and provisions
of this Indenture, at such Holder's option, at any time after the original
issuance of the Subordinated Notes hereunder through the close of business on
the second Business Day prior to the date of repurchase, redemption or final
maturity of the Subordinated Notes (except as provided in Section 3.08) to
convert the principal amount of any such Subordinated Note, or any portion of
such principal amount that is $1,000 or an integral multiple thereof, into that
number of duly authorized, validly issued, fully paid and non-assessable shares
of LGII Common Stock (as such shares shall then be constituted) obtained by
dividing the principal amount of the Subordinated Note or portion thereof
surrendered for conversion by the Conversion Price in effect at such time, by
surrender of the Subordinated Note to be so converted in whole or in part in the
manner provided, together with any required funds, if any, in Section 14.02. A
Holder of Subordinated Notes is not entitled to any rights of a holder of LGII
Common Stock until the Holder has converted its Subordinated Notes to LGII
Common Stock, and only to the extent such Subordinated Notes are deemed to have
been converted to LGII Common Stock under this Article 14; PROVIDED that in case
a Subordinated Note or portion thereof is called for redemption, the conversion
right in respect of the Subordinated Note or the portion so called shall expire
at the close of business two Business Days prior to the applicable Redemption
Date, unless LGII defaults in making the payment due on redemption, in which
case the conversion right shall terminate on the date such default is cured.
SECTION 14.02 EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF LGII COMMON
STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS.
To exercise the conversion privilege with respect to any Subordinated
Note in certificated form, the Holder of any such Subordinated Note to be
converted in whole or in part shall surrender such Subordinated Note, duly
endorsed or endorsed in blank, at an office or agency maintained by LGII
pursuant to Section 4.02, accompanied by the funds, if any, required by this
Section 14.02, and shall give written notice of conversion in the form provided
on the Subordinated Notes (or such other notice that is acceptable to LGII) to
the office or agency that the Holder elects to convert such Subordinated Note or
the portion thereof specified in said notice. Such notice shall also state the
name or names (with address or addresses) in which the certificate or
certificates for shares of LGII Common Stock which shall be issuable on such
conversion shall be issued, and shall be accompanied by transfer taxes, if
required pursuant to Section 14.07. Each such Subordinated Note surrendered for
conversion shall, unless the shares issuable on conversion are to be issued in
the same name as the registration of such Subordinated Note, be duly endorsed
by, or be accompanied by instruments of transfer in form satisfactory to LGII
duly executed by, the Holder or the Holder's duly authorized attorney.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Holder (as if such transfer were a transfer of the Subordinated Note
or Subordinated Notes (or portion thereof) so converted), LGII shall issue and
shall deliver to such Holder at the office or agency maintained by XXXX
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for such purpose pursuant to Section 4.02, a certificate or certificates for the
number of full shares of LGII Common Stock issuable upon the conversion of such
Subordinated Note or portion thereof in accordance with the provisions of this
Article and, if applicable, a check or cash in respect of any fractional
interest in respect of a share of LGII Common Stock arising upon such
conversion, as provided in Section 14.03.
Each conversion shall be deemed to have been effected as to any such
Subordinated Note (or portion thereof) on the date on which the requirements set
forth above in this Section 14.02 have been satisfied as to such Subordinated
Note (or portion thereof), and the Person in whose name any certificate or
certificates for shares of LGII Common Stock shall be issuable upon such
conversion shall be deemed to have become on said date the holder of record of
the shares represented thereby; PROVIDED, HOWEVER, that any such surrender on
any date when the stock transfer books of LGII shall be closed shall constitute
the Person in whose name the certificates are to be issued as the record holder
thereof for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in effect
on the date upon which such Subordinated Note shall be surrendered in accordance
with the applicable terms of the Indenture.
Any Subordinated Note or portion thereof surrendered for conversion
during the period from the close of business on the record date for any interest
payment date to the close of business on the Business Day next preceding the
following interest payment date must (unless such Subordinated Note or portion
thereof being converted shall have been called for redemption on a redemption
date, or tendered for repurchase on a repurchase date, that occurs during the
period from the close of business on such record date to the close of business
on the Business Day next preceding the following interest payment date) be
accompanied by payment, in same day funds or other funds acceptable to LGII, of
an amount equal to the interest otherwise payable on such interest payment date
on the principal amount being converted; PROVIDED, HOWEVER, that no such payment
need be made to the extent there exists at the time of conversion a default in
the payment of interest due on the Subordinated Notes surrendered for
conversion. Except as expressly provided in this Article 14, no payment or other
adjustment shall be made for interest accrued on any Subordinated Note converted
or for dividends on any shares issued upon the conversion of such Subordinated
Note as provided in this Article.
Upon the conversion of an interest in a Subordinated Note, the Trustee
(or other conversion agent appointed by LGII) shall authenticate and deliver to
the Holder of the Subordinated Note so surrendered, without charge to such
holder, a new Subordinated Note or Subordinated Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Subordinated Note. LGII shall notify the Trustee in writing
of any conversions of Subordinated Notes effected through any conversion agent
other than the Trustee.
All Subordinated Notes delivered for conversion shall be delivered to
the Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 2.13.
SECTION 14.03 CASH PAYMENTS OR ROUNDING UP IN LIEU OF FRACTIONAL
SHARES.
No fractional shares of LGII Common Stock or scrip representing
fractional shares shall be issued upon conversion of Subordinated Notes. If more
than one Subordinated Note shall be surrendered for conversion at one time by
the same Holder, the number of full shares that shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Subordinated Notes (or specified portions thereof to the extent permitted
thereby) so surrendered. If any fractional share of stock would be issuable upon
the conversion of any Subordinated Note or Subordinated Notes, LGII shall, at
its option, make an adjustment and payment therefor in cash at the Closing Price
thereof on the last Business Day immediately preceding the day on which the
Subordinated Notes (or specified portions thereof) are deemed to have been
converted to the Holder of Subordinated Notes or round up the number of shares
to be received to the nearest whole share.
SECTION 14.04 CONVERSION PRICE.
The initial conversion price shall be as specified in the form of
Subordinated Note (herein called, as adjusted from time to time, the "CONVERSION
PRICE") attached as Exhibit A hereto, as the case may be, subject to adjustment
as provided in this Article 14.
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SECTION 14.05 ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be adjusted from time to time by LGII as
follows:
(a) If LGII hereafter pays a dividend or makes a distribution
to all holders of the outstanding LGII Common Stock in shares of LGII Common
Stock, the Conversion Price in effect immediately after the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a fraction
the numerator of which shall be the number of shares of the LGII Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator of which shall be the sum of such number of shares and the
total number of shares constituting such dividend or other distribution, such
reduction, subject to LGII's rights under Section 14.05(k), to become effective
immediately after the date following the date fixed for such determination. If
any dividend or distribution of the type described in this Section 14.05(a) is
declared but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price that would then be in effect if such dividend or
distribution had not been declared.
(b) If outstanding shares of LGII Common Stock are subdivided
into a greater number of shares of LGII Common Stock, the Conversion Price in
effect immediately after the day upon which such subdivision becomes effective
shall be proportionately reduced, and conversely, in case outstanding shares of
LGII Common Stock shall be combined into a smaller number of shares of LGII
Common Stock, the Conversion Price in effect immediately after the day following
the day upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the day upon which such subdivision or combination becomes
effective.
(c) If LGII distributes to all holders of LGII Common Stock,
as such, (i) evidences of indebtedness or assets (excluding regular cash
dividends or cash distributions payable out of surplus or net profits legally
available therefor or those distributions described in Section 14.05(a)) of LGII
or any Subsidiary of LGII, (ii) shares of capital stock of LGII or any
Subsidiary of LGII (excluding LGII Common Stock), (iii) securities convertible
into or exchangeable for capital stock of LGII (including LGII Common Stock or
capital stock of any other class) or any Subsidiary of LGII, or (iv) any rights,
options or warrants to purchase any of the foregoing (excluding those described
in Section 14.05(d)), then the Conversion Price shall be adjusted by multiplying
such Conversion Price by a fraction (not to be more than one), the numerator of
which will be the Current Market Price (as defined below) per share of LGII
Common Stock on the record date for such distribution less the fair value (as
determined in good faith by the Board of Directors of LGII, whose determination
will be conclusive if based on the financial advice of a nationally recognized
investment banking firm) of the portion of the evidences of indebtedness,
assets, securities or rights, options or warrants so distributed on account of
one share of LGII Common Stock and the denominator of which will be such Current
Market Price per share of LGII Common Stock. Such adjustment shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such distribution. If the record date for any
such distribution is fixed but such distribution is not thereafter made, then
the Conversion Price shall again be adjusted to the Conversion Price that would
then be in effect if such distribution had not been declared. Except as provided
in Section 14.05(h), no further adjustments will be made upon the actual
conversion or exchange of such convertible or exchangeable securities or upon
the actual exercise of such rights, options or warrants. If the fair value (as
so determined) of the portion of the evidences of indebtedness, assets,
securities or rights, options or warrants so distributed on account of one share
of LGII Common Stock is equal to or greater than the Current Market Price per
share of LGII Common Stock on the record date for such distribution, in lieu of
the foregoing adjustment, then provision will be made so that the Holder of a
Subordinated Note will be entitled to receive the sum of (A) the number of
shares of LGII Common Stock that, if such Subordinated Note had been converted
immediately prior to such record date, such Holder would have received upon
conversion and (B) such evidences of indebtedness, assets, securities or rights,
options or warrants that such Holder would have been entitled to receive as a
result of such distribution by virtue of such Holder's ownership of such shares.
(d) If LGII issues rights, options or warrants to all holders
of outstanding shares of LGII Common Stock, as such, entitling the holders of
such rights, options or warrants to subscribe for or purchase shares of LGII
Common Stock at a price per share that is lower on the record date mentioned
below than the Current Market Price per share of LGII Common Stock on such
record date, then the Conversion Price shall be adjusted by multiplying such
Conversion Price by a fraction (not to be greater than one), the numerator of
which will be the
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number of shares of LGII Common Stock outstanding on such record date plus the
number of shares of LGII Common Stock which the aggregate subscription or
purchase price of the total number of shares of LGII Common Stock so offered
would purchase at the Current Market Price per share of LGII Common Stock on
such record date, and the denominator of which will be the number of shares of
LGII Common Stock outstanding on such record date plus the number of additional
shares of LGII Common Stock offered by such rights, options or warrants for
subscription or purchase. Such adjustment will become effective immediately
after the record date for the determination of the stockholders entitled to
receive such rights, options or warrants. If the record date for any such
issuance is fixed but such issuance is not thereafter made, then the Conversion
Price shall again be adjusted to the Conversion Price that would then be in
effect if such record date had not been fixed. If such subscription or purchase
price may be paid in a consideration part or all of which is in a form other
than cash, the fair value of such consideration will be as determined by the
Board of Directors of LGII, whose determination will be conclusive if based on
the financial advice of a nationally recognized investment banking firm. Except
as provided in Section 14.05(h), no further adjustments of the Conversion Price
will be made upon the actual issue of shares of LGII Common Stock upon exercise
of such rights, options or warrants.
(e) If LGII issues shares of LGII Common Stock or securities
convertible into or exchangeable for shares of LGII Common Stock or rights,
options or warrants, entitling the holders of such rights, options or warrants
to subscribe for or purchase shares of LGII Common Stock (excluding shares of
LGII Common Stock, convertible or exchangeable securities or rights, options or
warrants issued in any of the transactions described in paragraph (a), (b), (c)
or (d) of this Section 14.05) for a purchase price per share of such LGII Common
Stock, for a conversion or exchange price per share of LGII Common Stock
initially deliverable upon conversion or exchange of such securities or for a
subscription or purchase price per share of LGII Common Stock initially
deliverable upon exercise of such rights, options or warrants, that is less than
the Current Market Price per share of LGII Common Stock on the date the
purchase, conversion, exchange or subscription price of such additional shares
of LGII Common Stock is first fixed, then the Conversion Price will be adjusted
by multiplying the Conversion Price by a fraction (not to be greater than one),
the numerator of which will be the number of shares of LGII Common Stock
outstanding on the date of such issuance plus the number of additional shares of
LGII Common Stock which the aggregate purchase, conversion, exchange or
subscription price received or receivable by LGII for such additional shares of
LGII Common Stock would purchase at the Current Market Price per share of LGII
Common Stock on such date, and the denominator of which will be the number of
shares of Common Stock outstanding on such date plus the number of shares of
LGII Common Stock so issued or issuable upon such conversion, exchange or
exercise. Such adjustment shall become effective immediately after such shares
of LGII Common Stock or convertible or exchangeable securities are issued. If
such purchase, conversion, exchange or subscription price may be paid in a
consideration part or all of which is in a form other than cash, the fair value
of such consideration will be as determined by the Board of Directors of LGII,
whose determination will be conclusive if based on the financial advice of a
nationally recognized investment banking firm. Except as provided in Section
14.05(h), no further adjustment will be made upon the actual issue of shares of
LGII Common Stock upon conversion or exchange of such securities convertible
into or exchangeable for shares of LGII Common Stock or upon exercise of rights,
options or warrants entitling the holder of such rights, options or warrants to
subscribe for or purchase shares of LGII Common Stock.
(f) For purposes of this Agreement, the "CURRENT MARKET PRICE"
per share of LGII Common Stock on any date will be the average of the daily
Closing Prices for 20 consecutive Trading Days commencing 30 Trading Days before
the date of such computation; PROVIDED, HOWEVER, that if the Current Market
Price per share of LGII Common Stock is determined during a period following the
announcement of (i) a dividend or distribution on LGII Common Stock payable in
shares of LGII Common Stock or securities convertible into or exchangeable for
shares of LGII Common Stock or (ii) any subdivision, combination or
reclassification of shares of LGII Common Stock, and prior to the expiration of
30 Trading Days after the ex-dividend date of such dividend or distribution, or
the issuance date for such subdivision, combination or reclassification, then,
and in each such case, the Current Market Price per share will be appropriately
adjusted to take into account ex-dividend trading or to reflect the Current
Market Price per share per LGII Common Stock equivalent. The closing price for
each day (the "CLOSING PRICE") will be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which shares of LGII Common Stock
are listed or admitted to trading or, if shares of LGII Common Stock are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the
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high bid and low asked prices in the over-the-counter market, as reported by The
Nasdaq Stock Market, Inc. or such other system then in use, or, if on any such
date shares of LGII Common Stock are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in shares of LGII Common Stock selected by the
Board of Directors of LGII. If LGII Common Stock is not publicly held or not so
listed or traded, or is not the subject of available bid and asked quotes,
"CURRENT MARKET PRICE" per share will mean the fair value per share as
determined in good faith by the Board of Directors of LGII. "TRADING DAY" means
any day on which shares of LGII Common Stock are traded on the principal
national securities exchange on which shares of LGII Common Stock are listed or
admitted to trading or, if shares of LGII Common Stock are not so listed or
admitted to trading, in the over-the-counter market.
(g) Notwithstanding anything to the contrary in this Section
14.05, no adjustment in the Conversion Price will be made under paragraph (a),
(c), (d) or (e) of this Section 14.05 if LGII issues or distributes to each
Holder the shares, rights, options, warrants, convertible or exchangeable
securities, evidences of indebtedness, assets or other securities referred to in
the applicable paragraph that such Holder would have been entitled to receive
had the Subordinated Notes been converted prior to the happening of such event
or the record date with respect thereto (provided that, in any case in which
such Holder would have been so entitled to receive a fractional interest in any
such securities or assets, LGII may distribute to such Holder in lieu of such
fractional interest cash in an amount equal to the fair value of such fractional
interest as determined in good faith by the Board of Directors of LGII).
Notwithstanding anything to the contrary in this Section 14.05, no adjustment in
the Conversion Price will be made on account of: (1) any issuance of shares of
LGII Common Stock, or of options, rights or warrants to purchase, or securities
convertible into or exchangeable for, shares of LGII Common Stock, pursuant to
the Plan of Reorganization, (2) any issuance of shares of LGII Common Stock upon
the exercise of options, rights or warrants or upon the conversion or exchange
of convertible or exchangeable securities, in either case issued pursuant to the
Plan of Reorganization or outstanding as of the date hereof, (3) any issuance of
shares of LGII Common Stock, or of options, rights or warrants, or of other
securities, pursuant to a share purchase rights plan or any similar plan adopted
by the Board of Directors of LGII, (4) any issuance of shares of LGII Common
Stock, or of options, rights or warrants to purchase, or securities convertible
into or exchangeable for, shares of LGII Common Stock, in accordance with any
plan for the benefit of the employees or directors of LGII existing as of the
date hereof or contemplated by the Plan of Reorganization or any other plan
adopted by the directors of LGII for the benefit of the employees or directors
of LGII or any of its Subsidiaries, (5) any issuance of shares of LGII Common
Stock in connection with a plan sponsored by LGII for reinvestment of dividends
or interest, (6) any issuance of shares of LGII Common Stock, securities
convertible into or exchangeable for shares of LGII Common Stock or rights,
options or warrants entitling the holder of such rights, options or warrants to
subscribe for or purchase shares of LGII Common Stock pursuant to an
underwritten public offering for a price per share of LGII Common Stock in the
case of an issuance of shares of LGII Common Stock, for a price per share of
LGII Common Stock initially deliverable upon conversion or exchange of such
securities or for a subscription or purchase price per share of LGII Common
Stock initially deliverable upon exercise of such rights, options or warrants,
that is equal to or greater than 95% of the Closing Price per share of LGII
Common Stock on the date the offering, conversion, exchange, subscription or
purchase price of such additional shares of LGII Common Stock is first fixed, or
(7) any issuance of shares of LGII Common Stock or other securities to the
owners of any entity that is directly or indirectly acquired by LGII in an
arm's-length transaction approved by the Board of Directors of LGII.
Notwithstanding anything to the contrary in this Section 14.05, no adjustment in
the Conversion Price will be made for a change in the par value of the shares of
LGII Common Stock.
(h) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof have not been exercised, the
Conversion Price will, upon such expiration, be readjusted and will thereafter
be such as it would have been had it been originally adjusted (or had the
original adjustment not been required, as the case may be) as if (i) the only
shares of LGII Common Stock so issued were the shares of LGII Common Stock, if
any, actually issued or sold upon the exercise of such rights, options, warrants
or conversion or exchange privileges and (ii) such shares of LGII Common Stock,
if any, were issued or sold for the consideration actually received by LGII upon
such exercise, conversion or exchange plus the aggregate consideration, if any,
actually received by LGII for the issuance, sale or grant of all such rights,
options, warrants or conversion or exchange privileges whether or not exercised;
PROVIDED, HOWEVER, that no such readjustment will have the effect of increasing
the Conversion Price by an amount in excess of the amount of the adjustment
initially made in respect of the issuance, sale, or grant of such rights,
options, warrants or conversion or exchange privileges.
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(i) Notwithstanding anything to the contrary in this Section
14.05, no adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
PROVIDED, HOWEVER, that any adjustments that by reason of this Section 14.05(i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article 14 shall be made
by LGII and shall be made to the nearest tenth of one cent or to the nearest
one-hundredth (1/100) of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein
provided, LGII shall promptly file with the Trustee and any conversion agent
other than the Trustee an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Promptly after delivery of such certificate, LGII
shall prepare a notice of such adjustment of the Conversion Price setting forth
the adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Price
to the Holder of each Subordinated Note within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.
(k) In any case in which this Section 14.05 provides that an
adjustment shall become effective immediately after a record date for an event,
LGII may defer until the occurrence of such event (i) issuing to the Holder of
any Subordinated Note converted after such record date and before the occurrence
of such event the additional shares of LGII Common Stock issuable upon such
conversion by reason of the adjustment required by such event over and above the
LGII Common Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such holder any amount in cash or additional
shares in lieu of any fraction pursuant to Section 14.03.
(l) For purposes of this Section 14.05, the number of shares
of LGII Common Stock at any time outstanding shall not include shares held in
the treasury of LGII but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of LGII Common Stock. LGII
shall not pay any dividend or make any distribution on shares of LGII Common
Stock held in treasury.
SECTION 14.06 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE.
If any of the following events occur, namely (i) any reclassification
or change of the outstanding shares of LGII Common Stock (other than a
subdivision or combination to which Section 14.05(b) applies), (ii) any
consolidation, merger or combination of LGII with another Person as a result of
which all holders of LGII Common Stock shall be entitled to receive stock, other
securities or other property or assets (including cash) with respect to or in
exchange for such LGII Common Stock, or (iii) any sale or conveyance of all or
substantially all of the properties and assets of LGII to any other Person as a
result of which all Holders of LGII Common Stock shall be entitled to receive
stock, other securities or other property or assets (including cash) with
respect to or in exchange for such LGII Common Stock, then LGII or the successor
or purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of each supplemental indenture) providing that
the Subordinated Notes shall be convertible into the kind and amount of shares
of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of LGII Common
Stock issuable upon conversion of such Subordinated Notes (assuming, for such
purposes, a sufficient number of authorized shares of LGII Common Stock
available to convert all such Subordinated Notes) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
assuming such holder of LGII Common Stock did not exercise such holder's rights
of election, if any, as to the kind or amount of securities, cash or other
property receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance; provided that, if the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance is not the same for each share of LGII Common Stock in respect of
which such rights of election shall not have been exercised ("non-electing
share"), then for the purposes of this Section 14.06 the kind and amount of
securities, cash or other property receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares. Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article.
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LGII shall cause notice of the execution of such supplemental indenture
to be mailed to each Holder of Subordinated Notes within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 14.06 applies to any event or occurrence, Section 14.05
shall not apply.
SECTION 14.07 TAXES ON SHARES ISSUED.
The issue of stock certificates on conversions of Subordinated Notes
shall be made without charge to the converting Holder for any tax or duties in
respect of the issue thereof. LGII shall not, however, be required to pay any
tax or duty that may be payable in respect of any transfer involved in the issue
and delivery of stock in any name other than that of the Holder of any
Subordinated Note converted, and LGII shall not be required to issue or deliver
any such stock certificate unless and until the Person or Persons requesting the
issue thereof shall have paid to LGII the amount of such tax or shall have
established to the satisfaction of LGII that such tax has been paid.
SECTION 14.08 RESERVATION OF SHARES; LISTING OF LGII COMMON STOCK.
LGII shall at all times have reserved and available, free from
preemptive rights, out of its authorized but unissued LGII Common Stock,
sufficient shares of LGII Common Stock to provide for the full conversion of the
Subordinated Notes then outstanding. LGII covenants that all shares of LGII
Common Stock to be issued upon conversion of the Subordinated Notes are duly
authorized and, when issued, will be validly issued, duly paid and
non-assessable and, except as provided in Section 14.07, free and clear of all
taxes, liens and other encumbrances. Before taking any action that would cause
an adjustment reducing the Conversion Price below the then par value, if any, of
the LGII Common Stock issuable upon conversion of the Subordinated Notes, LGII
shall take all corporate action that may, in the opinion of its counsel, be
necessary so that LGII may validly and legally issue shares of LGII Common Stock
at such adjusted Conversion Price.
LGII further covenants that, subject to the terms of this Indenture and
compliance by the Holders of the Subordinated Notes with applicable law, if at
any time the LGII Common Stock shall be listed on The New York Stock Exchange or
any other national securities exchange or automated quotation system, LGII will,
if permitted by the rules of such exchange or automated quotation system, use
reasonable efforts to list and keep listed, so long as the LGII Common Stock
shall be so listed on such exchange or automated quotation system, all LGII
Common Stock issuable upon conversion of the Subordinated Notes; PROVIDED,
HOWEVER, that, if the rules of such exchange or automated quotation system
permit LGII to defer the listing of such LGII Common Stock until the first
conversion of the Subordinated Notes into LGII Common Stock in accordance with
the provisions of this Indenture, LGII covenants to list such LGII Common Stock
issuable upon conversion of the Subordinated Notes in accordance with the
requirements of such exchange or automated quotation system at such time.
SECTION 14.09 RESPONSIBILITY OF TRUSTEE.
The Trustee and any other conversion agent shall not at any time be
under any duty or responsibility to any Holder of Subordinated Notes to
determine the Conversion Price or whether any facts exist that may require any
adjustment of the Conversion Price, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee and any other conversion agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of LGII Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Subordinated Note; and
the Trustee and any other conversion agent make no representations with respect
thereto. Neither the Trustee nor any conversion agent shall be responsible for
any failure of LGII to issue, transfer or deliver any shares of LGII Common
Stock or stock certificates or other securities or property or cash upon the
surrender of any Subordinated Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of LGII contained in this
Article 14. Without limiting the generality of the foregoing, neither the
Trustee nor any conversion agent shall be under any
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responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 14.06 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Subordinated Notes after any
event referred to in such Section 14.06 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 7.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which LGII shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 14.10 NOTICES TO HOLDERS.
If, at any time (with respect to each Holder, prior to such Holder's
exercise of conversion rights), any of the following events occur:
(a) LGII declares any dividend payable in any securities upon
shares of LGII Common Stock or makes any distribution (other than a regular cash
dividend or cash distributions payable out of surplus or net profits legally
available therefor) to the holders of LGII Common Stock;
(b) LGII offers to the holders of LGII Common Stock any shares
of Capital Stock of LGII or any Subsidiary thereof or securities convertible
into or exchangeable for shares of Capital Stock of LGII or any Subsidiary
thereof or any option, right or warrant to subscribe for or purchase any
thereof;
(c) LGII distributes to the holders of LGII Common Stock
evidences of indebtedness or assets (including any cash dividend that would
result in an adjustment under Section 14.05) of LGII or any Subsidiary thereof;
(d) Any reclassification of LGII Common Stock, any
consolidation of LGII with or merger of LGII into another Person, any sale,
transfer or lease to another Person of all or substantially all the property of
LGII, or any proposal of LGII to effect any of the foregoing transactions that
has been publicly announced by LGII; or
(e) Any proposal by LGII to effect a dissolution, liquidation
or winding up of LGII that has been publicly announced by LGII;
then in any one or more of such events LGII will give notice of such event to
the Trustee and the Holders, such giving of notice to be completed at least ten
calendar days prior to the date fixed as a record date or the date of closing
the transfer books for the determination of the stockholders entitled to such
dividend, distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed reclassification, consolidation,
merger, sale, transfer or lease, dissolution, liquidation or winding up;
provided, however, that no such notice will be required in respect of any of the
matters referred to in the penultimate sentence of Section 14.05(g). Such notice
will specify such record date or the date of closing the transfer books, as the
case may be, for such event. Failure to mail or receive such notice or any
defect therein or in the mailing thereof will not affect the validity of any
action taken in connection with such event.
67
73
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:
EACH SUBSIDIARY GUARANTOR
LISTED ON SCHEDULE A HERETO
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------------
Name:
Title:
68
74
SCHEDULE A
SUBSIDIARY GUARANTORS
[SUBJECT TO FURTHER REVIEW AND CONFIRMATION]
Each Subsidiary Guarantor is a wholly owned direct or indirect
subsidiary of the Company. The names of indirectly owned Subsidiary Guarantors
are indented under their direct-parent entities and each will be wholly owned by
such direct-parent entity unless otherwise indicated in parentheses following
such Subsidiary Guarantor's name. The jurisdiction of incorporation for the each
Subsidiary Guarantor appears in the far right hand margin if it differs from the
state or commonwealth heading above that section.
ALABAMA
Advanced Planning (Alabama), Inc.
Xxxxxx (Alabama), Inc.
ALASKA
Xxxxxx (Alaska), Inc.
ARIZONA
Xxxxxx (Arizona), Inc. (voting stock will also be owned by Osiris Holding Corporation)
ARKANSAS
Advance Planning of Arkansas, Inc.
Xxxxxx (Arkansas), Inc.
CALIFORNIA
Xxxxxx (California), Inc.
Advance Funeral Insurance Services
Xxxxxxxxxx-Lakewood Memorial Park and Funeral Service
Xxxxxx Communication Center, Inc.
Xxxxxx (Texas), Inc.
Xxxxxx Cemetery (Texas), Inc. (voting stock will also be owned by Xxxxxx (Georgia)
Holdings, Inc.).......................................................................... Texas
Northwest Services, Inc........................................................... Texas
Xxxxxx (Texas) II, Inc.
Xxxxxx (Texas) L.P. (membership interests will also be owned by Xxxxxxxx X.X. and
Xxxxxx Group Inc.)
Pioneer Memorial Cemetery
Pre-Need Funeral Programs of California, Inc.
COLORADO
Xxxxxx (Colorado), Inc.
CONNECTICUT
Xxxxxx (Connecticut), Inc. (voting stock will also be owned by Xxxxxx (New York) Inc.)
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DELAWARE
Adminstration Services, Inc.
American Burial and Cremation Centers, Inc.
Xxxxxx Corporate Benefits in North Carolina, Inc.
Xxxxxx (Delaware), Inc.
Osiris Holding Corporation
Elmwood Acquisition Corporation............................................................. Illinois
Oak Xxxxx Cemetery Association.............................................................. Illinois
Osiris Holding of Florida, Inc.............................................................. Florida
Osiris Insurance Agency of Pennsylvania..................................................... Pennsylvania
DISTRICT OF COLUMBIA
Xxxxx Hebrew Memorial Funeral Home, Inc.
FLORIDA
Garden Sanctuary Acquisition, Inc.
MHI Group, Inc.
Funeral Services Acquisition Group, Inc.
Security Trust Plans, Inc. (voting stock will also be owned by Funeral Services Acquisition, Inc.)
Naples Memorial Gardens, Inc.
Xxxxxxxxx Family Services, Inc.
Xxxxxx (Chicago North), Inc. (voting stock will also be owned by the Company)
GEORGIA
Advanced Planning of Georgia, Inc.
Xxxxxx (Georgia) Holdings, Inc. (voting stock will also be owned by Xxxxxxxxx Holding Company, Inc.)
Green Lawn Cemetery Corporation
Xxxxxx (Georgia), Inc.
Southeastern Funeral Homes, Inc.
Xxxxxx, Inc................................................................................. North Carolina
Graceland Cemetery Development Company, Inc................................................. South Carolina
Waco Memorial Park.......................................................................... Texas
HAWAII
Xxxxxx (Hawaii), Inc.
IDAHO
Xxxxxx (Idaho), Inc.
ILLINOIS
Xxxxxx (Illinois), Inc.
Chicago Cemetery Corporation
Evergreen Memorial Gardens, Inc.
Glendale Memorial Gardens, Inc.
Memorial Gardens Association, Inc.
Mount Auburn Memorial Park, Inc.
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Pre-Arrangement Consultants, Inc.
Windridge Funeral Home, Ltd.
Xxxxxx (Chicago Central), Inc. (voting stock will also be owned by Osiris Holding
Corporation)
Woodlawn Memorial Park, Inc.
Xxxxxx (Chicago South), Inc. (voting stock will also be owned by the Company)
Mount Hope Woodlawn Corporation
Woodlawn Cemetery of Chicago
Ridgewood Cemetery Company, Inc.
INDIANA
Xxxxxx (Indiana), Inc. (voting stock will also be owned by Xxxxxx (Illinois), Inc. and Xxxxxx
(Tennessee), Inc.)
Care Memorial of Indiana, Inc.
Advance Planning of America, Inc.
IOWA
Burlington Cemetery Management, Inc.
Xxxxxx (Iowa), Inc.
KANSAS
Xxxxxx (Kansas), Inc. (voting stock will also be owned by Xxxxxx (Oklahoma), Inc.)
KENTUCKY
Advanced Planning of Kentucky, Inc.
Xxxxxx (Kentucky), Inc.
Xxxxxx Group Inc.
LOUISIANA
Xxxxxx (Louisiana), Inc.
MASSACHUSETTS
Xxxxxx (Massachusetts), Inc.
MICHIGAN
Xxxxxx (Michigan) Funeral Home, Inc. (voting stock will also be owned by Osiris Holding Corporation)
Care Memorial Society, Inc.
MINNESOTA
Xxxxxx (Minnesota), Inc. (voting stock will also be owned by Osiris Holding Corporation)
Coral Ridge Funeral Home & Cemetery, Inc.................................................... Florida
Kadek Enterprises of Florida, Inc........................................................... Florida
MISSISSIPPI
Advanced Planning of Mississippi, Inc.
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Family Care, Inc.
Xxxxxx (Mississippi), Inc.
Xxxxxx-Xxxxx Funeral Insurance Company
Xxxxxxxx Burial Association, Inc.
Xxxxxxxx Funeral Benefit Association, Inc.
Xxxxxxxx Funeral Fund, Inc.
Xxxxxxx Funeral Insurance Company, Inc.
Riemann Enterprises, Inc.
Riemann Funeral Insurance Company, Inc.
Riemann Insurance Company, Inc.
MISSOURI
Xxxxxx (Missouri), Inc. (voting stock will also be owned by Xxxxxx (Oklahoma), Inc.)
MONTANA
Xxxxxx (Montana), Inc.
NEBRASKA
Xxxxxx (Nebraska), Inc.
NEVADA
Xxxxxx (Nevada), Inc.
NEW HAMPSHIRE
Xxxxxx Xxxxxxx Xxxxxxxx Funeral Home, Inc.
St. Laurent Funeral Homes, Inc.
ZS Acquisition, Inc.
NEW MEXICO
Advanced Planning - Southwest, Inc.
Xxxxxx (New Mexico), Inc.
Xxxxxx-Xxxxxx Mortuary, Inc.
NEW YORK
Xxxxxx (New York), Inc.
Northeast Monument Company, Inc.
NORTH CAROLINA
Carothers Holding Company, Inc.
Advanced Funeral Planning of North Carolina, Inc.
Xxxxxxxxx Group Inc.
Xxxxx-Xxxxxxxxx Advanced Funeral Planning, Inc.
Xxxxxx (North Carolina), Inc. (voting stock will also be owned by Xxxxxxxxx Holding Company, Inc.
and Xxxxxxxxx Group, Inc.)
Westminister Gardens, Inc.
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00
XXXXX XXXXXX
Xxxxxx (Xxxxx Xxxxxx), Inc.
OHIO
Xxxxxx (Ohio) Cemetery Holdings, Inc.
Xxxxxx (Ohio) Cemetery Management, Inc.
Xxxxxx (Ohio), Inc.
OKLAHOMA
Xxxxxx (Oklahoma), Inc.
OREGON
Advanced Planning Inc.
Xxxxxx (Oregon), Inc.
The Portland Memorial, Inc.
PENNSYLVANIA
Xxxxxx (Pennsylvania), Inc. (voting stock will also be owned by Osiris Holding Corporation)
Osiris Insurance Agency of Pennsylvania
RHODE ISLAND
Xxxxxx (Rhode Island), Inc.
SOUTH CAROLINA
Loewen (South Carolina), Inc. (voting stock will also be owned by Xxxxxxxxx Holding Company, Inc.)
SOUTH DAKOTA
Xxxxxx (South Dakota), Inc.
TENNESSEE
DMA Corporation
Xxxxxx (Tennessee), Inc.
TEXAS
Dunwood Cemetery Service Company
Xxxxxxxx Holdings, Inc.
Xxxxxxxx Cemetery Holdings, Inc.
Xxxxxxxx XX, Inc............................................................................ California
VIRGINIA
Advance Planning of Virginia, Inc.
Xxxxxxxxx Group (Virginia), Inc.
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79
Advanced Planning Services of Maryland, Inc................................................. Maryland
Xxxxxx (Maryland), Inc...................................................................... Maryland
Takoma Funeral Home, Inc.................................................................... X.X
Xxxxxx (Virginia), Inc. (voting stock will also be owned by Xxxxxxxxx Group, Inc. (Virginia),
Xxxxxxxxx Group, Inc. (N.C.) and Xxxxxxxxx Holding Company, Inc.)
WASHINGTON
Evergreen Funeral Home and Cemetery, Inc.
Xxxxxx (Washington), Inc.
S.H. Properties and Enterprises, Inc.
Universal Memorial Centers I, Inc........................................................... Oregon
Universal Memorial Centers II, Inc.......................................................... Oregon
Universal Memorial Centers III, Inc......................................................... Oregon
Universal Memorial Centers V, Inc........................................................... California
Universal Memorial Centers VI, Inc.......................................................... California
Vancouver Funeral Chapel, Inc.
NPCI Holdings, Inc.
WEST VIRGINIA
Advance Planning of West Virginia, Inc.
Xxxxxx (West Xxxxxxxx), Inc.
WISCONSIN
Xxxxxx (Wisconsin), Inc. (voting stock will also be owned by Osiris Holding Corporation)
WYOMING
Xxxxxx (Wyoming), Inc.
PUERTO RICO
Composanto PR, Inc.
Xxxxxx (Puerto Rico), Inc.
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SCHEDULE 4.12
NON-CASH DISPOSABLE ASSETS
[Subject to further review and confirmation]
PACK. LOC # DBA NAME XXXXXXX XXXX XXXXX XXX
00 0000 Xxxxxxx Cemetery and Gardens 0000 Xxxx Xxxxx Xx Xxxx Xxxxx Xxxxxxxx XX 00000
Avenue
6 3046 XxXxx-Xxxxx Funeral Home 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
6 3479 Wachterhauser Funeral Home 000 X Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
7 3448 Beam Funeral Home 000 Xxxx Xxxxxxxx Xxxxxx Xxxx Xxxxx XX 00000-
1232
8 5797 Sun Prairie Memory Garden 0000 Xxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
8 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xx XX 0 Xx Xxxxxx XX 00000
10 2856 Xxxxxxx'x Funeral Home 000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000
10 3337 Riverside Funeral Home & 0000 Xxxxx Xxxx Xxxxxxx Xxxx XX 00000
Crematory
12 2125 Graceland Memorial Park North - 0000 XX 0xx Xxxxxx Xxxxx XX 00000
Administration Office
12 2126 Graceland Memorial Park South 00000 Xxxxx Xxxx 000xx Xxxxxx Xxxxx XX 00000
12 3138 Graceland Funeral Home 0000 X Xxxxxxx Xxxxxx Xxxxx XX 00000
12 3377 Funeraria Xxxxx Xxxxxxxx 0000 XX 00xx Xxxxxx Xxxxx XX 00000
13 2913 Xxxxx-Xxxxxxx Funeral Home 000 Xxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
13 2889 Xxxxxx-Xxxxxx-XxXxxxxxx 00 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000-
Funeral Home 1198
13 2897 Xxxxxx Funeral Home 000 Xxxxx Xxxx Xxxxxx Xxxx Xxx XX 00000
13 2906 Helm Funeral Home 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxx Xxxxxxx XX 00000
13 2919 Xxxxxxx Funeral Homes 000 Xxxxx Xxxxxx Xxxxx Xxxx XX 00000
13 2998 Xxxxx Funeral Home 0000 Xxxxx Xxxxx Xxxxxx Xxxx Xxxx XX 00000
13 2999 Xxxxxxxx - Xxxxxx Medicar 000 Xxxxx Xxxxxx Xxxxxx Xxxx Xxxx XX 00000-
0898
15 3217 Cedar Hill Chapel 0000 Xxxx Xxxx Xxxx Xxxx Xxxxxxxxx XX 00000
15 3225 XxXxxx-Xxxxx Funeral Home 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
15 3326 Key Florals 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
15 3383 Cardinal Flowers & Fine Gifts 0000 00 Xxxxxx Xxxxxxxx XX 00000
S-7
81
PACK. LOC # DBA NAME XXXXXXX XXXX XXXXX XXX
00 0000 Xxxxxxxx Funeral Home, Inc. 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
15 3475 Xxxxxx Chapel Funeral Home 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000
15 5668 Xxxxxx Chapel Memorial 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
Gardens
15 5683 Xxxxxxxxxx Memorial Cemetery 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
15 0000 Xxxxxxxx Xxxx Cemetery 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxxx XX 00000
15 5740 Hillcrest Cemetery 000 Xxxxxxxxx Xxxx Xxxxx XX 00000
15 5743 Xxxxxxx Memorial Company 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxxx XX 00000
15 0000 Xxxxxx Xxxxxx Xxxxxxxx XX Xxxxxxx 00 Xxxx Xxxx XX 00000
Gardens
15 0000 Xxxxxxxxxx Xxxxxxxx Xxxxxxx XX Xxxxxxx 00 Xxxx Xxxxxxxxxx XX 00000
15 0000 Xxxxxxxx Xxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000
17 2179 Memorial Lawn Cemetery 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
17 3205 Xxxxx Funeral Home 000 Xxxx Xxxxx Xxxxxxxxxxx XX 00000
17 3256 Shrine Of Memories 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
17 3559 Xxxxxxxxx-Xxxxxxx Funeral 000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
Chapel
17 5515 Memorial Lawn - Memory 0000 Xxxxxxxxx Xxx. Xxxx Xxxx XX 00000
Gardens
17 0000 Xxxxxxxx Xxxx - Xxxxxxxxxx 00000 000 Xxxxxx Xxxxxxxxxx XX 00000
Memorial
17 5519 Memorial Lawn - Sunset 0000 Xxxx Xxxxxx Xxxxxx XX 00000
Memorial
17 0000 Xxxxxx Xxxxxxx - Xxxxxxxxx 0000 Xxx 00 Xxxx Xxxxxxx XX 00000
Memorial
17 5676 Garden of Memories - Cedar 0000 Xxxxxxx Xxxx Xxxxx Xxxxx XX 00000
Valley
17 5677 Garden of Memories Cemetery & 0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000
Mausoleum
17 5719 White Chapel Memory Gardens 00000 Xxxxx Xxxxxx Xxxxxxx 0 Xxxxxx XX 00000
17 5722 Forest Lawn Memory Gardens 0000 XX Xxxxxxx 000 Xxxx Xxxxxx XX 00000
17 0000 Xxx Xxxx Xxxxxxxx Xxxxxxx 0000 XX Xxx 000 X. Xxxxxxxxx XX 00000
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PACK. LOC # DBA NAME XXXXXXX XXXX XXXXX XXX
00 0000 Xxxxxxxxx Xxxxxx Xxxxxxx 0000 XX Xxxxxxx 00 Xxxxxxx XX 00000
17 5821 North Lawn Cemetery 0000 Xxxxx 00xx Xxxxxx Xxxx Xxxxx XX 00000
26 2983 Delaware Park Memorial Chapel, 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
Inc.
19 8309 Los Xxxxxxx Memorial Park Xxxx. 417, Antigua Xxx xxx Xxxx, Xxxxxx XX 00000
Xxxxxx Xxxxxxxx
00 0000 Xxxxx Xxxxxx Monuments and Xxxx. 000 Xxxxx Xxxxx Xxxxxxxxx XX 00000
Vaults
19 8305 Xxxxx Xxxxxx Memorial Park Xxxx. 000 Xxxxx Xxxxx Xxxxxxxxx XX 00000
19 8301 Senorial Memorial Park Xxxxxxxxx 000 Xx 6.2 Cupey PR 00926
19 8308 Los Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx, XX 0.0 Xxxxxxx XX 00000
19 8300 Xxxxx Xx Xxx Xxxxxx Xxxxxxxx Xxxx 000 Xx 2.0 Xxxxxx XX 00000
Park
19 8302 Camposanto De Cristo Xxxx .0 XX 000 XXX Xxxxx XX 00000
Resucutado
19 8303 Las Mercedes Memorial Park Xxxx XX 00, Xx 0.0 Xxxxxx Xxxxx XX 00000
Xxxxxxxx
19 8310 Pepino Memorial Park & Funeral Xxxxxxxxx 000 XX 00.0 XX Xxx Xxxxxxxxx XX 00000
Home Calabazas
19 8000 Camposanto PR, Inc. Trujilo-Alto PR
19 8101 Porta Coeli Funeral Home 000 Xx. Xxxx Xxxxxx Xxxxxxx XX 00000
19 8102 El Senorial Funeral Home Xxxxxxxxx 000 Xx 0.0 Xxx Xxxxxxx XX 00000
19 8103 Pepino Funeral Home Xxxxxxxxx 000 x XxxXxxxxx-Xxxxxx Xxx Xxxxxxxxx XX 00000
Culebri
19 8100 Gonzalez Lago Funeral Home Expreso Xxxxxxxx Xxxx Xx 0.0 Xxxxxxxx Xxxx XX 00000
20 5764 Broadlawn Memorial Gardens 0000 Xxx Xxxxxxx Xxxx Xxxxxx XX 00000
20 5670 Macedonia Memorial Park 00000 Xxxx Xxxxxxxx Xxxxxx XX 00000
20 3444 Xxxxxxxxx Funeral Home 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000
20 2086 Lafayette & Greenhills Memory 0000 Xxxxx Xxxxxxx 00 Xx Xxxxxxx XX 00000
Gardens
20 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxxx XX 00000
20 3001 XxXxxxx Funeral Home 0 Xxxxx Xxxxxx Xxxxxxx XX 00000
S-9
83
PACK. LOC # DBA NAME XXXXXXX XXXX XXXXX XXX
00 0000 Xxxxxxxx Cemetery & Rt.1, 00000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
Xxxxxxxxxx
00 0000 Xxxxxxxx-Xxxxxxxx-Xxxxx- 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000-0000
Xxxxxxxx Funeral Directors
0000 Xxxxxx-Xxxxxx-Xxxx Funeral 000 X Xxxxxx Xxxxxx XX 00000
Home
3425 Xxxx Funeral Home 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
0000 Xxxxxx Xxxxxxxx Xxxxxxx 0000 Xxxxx Xxxx Xxxxxx XX 00000
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EXHIBIT A
XXXXXX GROUP INTERNATIONAL, INC.
12 1/4% CONVERTIBLE SUBORDINATED NOTES DUE [THE TENTH ANNIVERSARY OF THE
EFFECTIVE DATE OF THE PLAN OF REORGANIZATION]]
No. ______ $__________
CUSIP No.
XXXXXX GROUP INTERNATIONAL, INC., a corporation incorporated under the
laws of the State of Delaware (herein called "LGII", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [_______] or registered assigns, the
principal sum of _______________ Dollars on [THE TENTH ANNIVERSARY OF THE
EFFECTIVE DATE OF THE PLAN OF REORGANIZATION], at the office or agency of LGII
referred to below, and to pay interest thereon on March 15 and September 15, in
each year, commencing on March 15, 2002, accruing from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid, from the original date of issuance, at the rate of
12 1/4% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this Subordinated Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be March 1 or September 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each a "REGULAR RECORD DATE"). Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the rate borne by the Subordinated Notes, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record Date, and may
be paid to the Person in whose name this Subordinated Note (or one or more
Predecessor Notes) is registered at the close of business on a special record
date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Subordinated Notes not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Subordinated Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Subordinated Note will be made at the office or agency of LGII maintained for
that purpose in the Borough of Manhattan in the City of New York, or at such
other office or agency of LGII as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of LGII by check mailed to the
address of the Person entitled thereto as such address shall appear on the
security register maintained by the Registrar or by wire transfer to such
account as the Person entitled thereto may request in form reasonably
satisfactory to LGII and the Trustee. Reference is hereby made to the further
provisions of this Subordinated Note set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Subordinated Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
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85
IN WITNESS WHEREOF, LGII has caused this instrument to be duly executed
under its corporate seal.
Dated:
XXXXXX GROUP INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
A-2
86
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes designated therein referred to in
the within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
------------------------------------
Authorized Officer
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(Reverse of Note)
1. INDENTURE. This Note is one of the duly authorized Subordinated
Notes of LGII designated as its 12 1/4% Convertible Subordinated Notes due [THE
TENTH ANNIVERSARY OF THE EFFECTIVE DATE OF THE PLAN OF REORGANIZATION] (the
"SUBORDINATED NOTES"), which may be issued under an indenture (herein called the
"INDENTURE") dated as of [THE EFFECTIVE DATE OF THE PLAN OF REORGANIZATION],
among Xxxxxx Group International, Inc., a Delaware corporation, as issuer
("LGII") and Xxxxx Fargo Bank Minnesota, National Association, a national
banking association, as trustee (herein called the "TRUSTEE," which term
includes any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of LGII, the Trustee and the Holders of the Subordinated Notes, and
of the terms upon which the Subordinated Notes are, and are to be, authenticated
and delivered.
All capitalized terms used in this Note that are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of LGII, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed; or LGII's conversion obligations as set forth herein and in the
Indenture.
2. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Subordinated Notes are redeemable as a
whole or in part, at the option of LGII, at any time upon not less than 30 nor
more than 60 days' prior notice at a Redemption Price equal to 100% of their
principal amount plus accrued interest to the date of redemption; PROVIDED,
HOWEVER, that prior to the second anniversary of the Measurement Date LGII may
not optionally redeem the Subordinated Notes unless the Current Market Price of
LGII Common Stock is at least 15% greater than the then applicable Conversion
Price.
(b) PARTIAL REDEMPTION. In the event of redemption of this Subordinated
Note in part only, a new Subordinated Note or Subordinated Notes for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
3. OFFERS TO PURCHASE. Section 4.11 of the Indenture provides that upon
the occurrence of a Change of Control, and subject to further limitations
contained therein, LGII shall make an offer to purchase certain amounts of the
Subordinated Notes in accordance with the procedures set forth in the Indenture.
Section 4.12 of the Indenture provides that upon the occurrence of certain Asset
Sales, and subject to further limitations contained therein, LGII shall make an
offer to purchase certain amounts of the Subordinated Notes in accordance with
the procedures set forth in the Indenture.
4. DEFAULTS AND REMEDIES. If an Event of Default shall occur and be
continuing, the principal of all of the outstanding Subordinated Notes, plus all
accrued and unpaid interest, if any, to and including the date the Subordinated
Notes are paid, may be declared or may become due and payable in the manner and
with the effect provided in the Indenture.
5. DEFEASANCE. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
LGII under this Note and (b) certain restrictive covenants and related Defaults
and Events of Default, in each case upon compliance by LGII with certain
conditions set forth therein.
6. AMENDMENTS AND WAIVERS. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of LGII and the rights of the Holders under the
Indenture at any time by LGII and the Trustee with the consent of the Holders of
not less than a majority in aggregate principal amount of the
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88
Subordinated Notes at the time outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Subordinated Notes at the time outstanding, on behalf of
the Holders of all the Subordinated Notes, to waive compliance by LGII with
certain provisions of the Indenture and certain past Defaults under the
Indenture and this Subordinated Note and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Subordinated Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
8. DENOMINATIONS, TRANSFER AND EXCHANGE. The Subordinated Notes are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Subordinated Notes are exchangeable
for a like aggregate principal amount of Subordinated Notes of a different
authorized denomination, as requested by the Holder surrendering the same. As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note is registrable on the security register of LGII, upon
surrender of this Note for registration of transfer at the office or agency of
LGII maintained for such purpose in the Borough of Manhattan in the City of New
York or at such other office or agency of LGII as may be maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Subordinated Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any registration of transfer or exchange or
redemption of Subordinated Notes, but LGII may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
9. PERSONS DEEMED OWNERS. Prior to and at the time of due presentment
of this Note for registration of transfer, LGII, the Trustee, the Conversion
Agent and any agent of LGII or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither LGII, the Trustee, the Conversion Agent
nor any agent shall be affected by notice to the contrary.
10. GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of New York.
11. CONVERSION. Subject to the provisions of the Indenture, the holder
hereof has the right, at such Holder's option, at any time after the original
issuance of any Subordinated Notes through the close of business on the second
Business Day prior to the date of repurchase, redemption or final maturity date
of the Subordinated Notes to convert the principal hereof or any portion of such
principal that is $1,000 or an integral multiple thereof into that number of
duly authorized, validly issued, fully paid and non-assessable shares of LGII
Common Stock, as said shares shall be constituted at the date of conversion,
obtained by dividing the principal amount of this Subordinated Note or portion
thereof to be converted by 17.17 (the initial "CONVERSION PRICE") or such
Conversion Price as adjusted from time to time as provided in the Indenture,
upon surrender of this Subordinated Note in the manner provided in Section 14.02
of the Indenture. No adjustment in respect of interest or dividends will be made
upon any conversion; PROVIDED, HOWEVER, that if this Subordinated Note is
surrendered for conversion during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day preceding the interest payment date, this Subordinated Note (unless it or
the portion being converted have been called for redemption or repurchase during
the period from the close of business on any record date for the payment of
interest to the close of business on the Business Day preceding the interest
payment date) must be accompanied by an amount, in same day funds or other funds
acceptable to LGII, equal to the interest payable on such interest payment date
on the principal amount being converted; PROVIDED, HOWEVER, that no such payment
need be made to the extent there exists at the time of conversion a default in
the payment of interest due on the Subordinated Notes surrendered for
conversion. No fractional shares will be issued upon any conversion, but either
an adjustment in cash will be made, as provided in the Indenture, in respect of
any fraction of a share that would otherwise be issuable upon the surrender of
any Subordinated Note or Subordinated Notes for conversion or the number of
shares shall be rounded up to full shares.
A-5
89
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Subordinated Note purchased by LGII pursuant
to Section 4.11 or 4.12 of the Indenture, check the "Yes" box:
Yes [ ]
If you wish to have a portion of this Subordinated Note purchased by
LGII pursuant to Section 4.11 or 4.12 of the Indenture, state the amount:
$
--------------------
Date: Your Signature:
----------------------------- ---------------------------------------------
Sign exactly as your name appears on the
other side of this Subordinated Note)
Signature Guarantee:
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A-6
90
ASSIGNMENT FORM
If you the holder want to assign this Subordinated Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Subordinated Note to
----------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Subordinated Note on the books of
LGII. The agent may substitute another to act for him.
Date: Your Signature:
----------------------------- ---------------------------------------------
Sign exactly as your name appears on the
other side of this Subordinated Note)
Signature Guarantee:
----------------------------------------
91
CONVERSION NOTICE
TO: XXXXXX GROUP INTERNATIONAL, INC.
The undersigned registered owner of this Subordinated Note hereby
exercises the option to convert this Subordinated Note, or the portion thereof
(which is $1,000 or an integral multiple thereof) below designated, into shares
of Common Stock of Xxxxxx Group International, Inc. in accordance with the terms
of the Indenture referred to in this Subordinated Note, and directs that the
shares issuable and deliverable upon such conversion, together with any check in
payment for fractional shares and any Subordinated Notes representing any
unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If shares or any
portion of this Subordinated Note not converted are to be issued in the name of
a person other than the undersigned, the undersigned will provide the
appropriate information below and pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of
interest accompanies this Subordinated Note.
Dated:
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Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Subordinated Note
registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP")
or such other "signature guarantee program"
as may be determined by the Subordinated
Note registrar in addition to, or in
substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
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Signature Guarantee
92
Fill in the registration of shares of Common Stock if to be issued, and
Subordinated Notes if to be delivered, other than to and in the name of the
registered holder:
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(Name)
-------------------------------------------
(Street Address)
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(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all): $
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Social Security or Other Taxpayer
Identification Number:
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