1
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]
$165,000,000(1)
12 1/4% Senior Notes due [THE SECOND ANNIVERSARY OF EFFECTIVE DATE OF THE PLAN
OF REORGANIZATION]
----------
(1) Subject to adjustment as required under the Plan of Reorganization to
reflect rounding adjustments (see Section 2.17); furthermore, will be
reduced by an amount equal to the Realized Asset Disposition Proceeds
Amount (as defined in the Plan of Reorganization).
2
TABLE OF CONTENTS
Page
----
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.......................13
SECTION 1.03 RULES OF CONSTRUCTION...................................................13
ARTICLE 2 THE TWO-YEAR NOTES.............................................................14
SECTION 2.01 ISSUANCE OF TWO-YEAR NOTES..............................................14
SECTION 2.02 RESTRICTIVE LEGEND......................................................15
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.....................................16
SECTION 2.06 NOTEHOLDER LISTS........................................................17
SECTION 2.07 TRANSFER AND EXCHANGE...................................................17
SECTION 2.08 REPLACEMENT NOTES.......................................................17
SECTION 2.09 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE...................................17
SECTION 2.10 OUTSTANDING TWO-YEAR NOTES..............................................18
SECTION 2.11 TREASURY NOTES..........................................................18
SECTION 2.12 TEMPORARY NOTES.........................................................19
SECTION 2.13 CANCELLATION............................................................19
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 $250,000,000 PURSUANT TO PLAN OF
REORGANIZATION..........................................................20
ARTICLE 3 REDEMPTION OF TWO-YEAR NOTES...................................................20
SECTION 3.01 OPTIONAL REDEMPTION.....................................................20
SECTION 3.02 [INTENTIONALLY OMITTED].................................................20
SECTION 3.03 SELECTION OF TWO-YEAR 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 TWO-YEAR NOTES REDEEMED OR PURCHASED IN PART............................21
ARTICLE 4 COVENANTS......................................................................22
SECTION 4.01 PAYMENT OF TWO-YEAR NOTES...............................................22
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.........................................22
SECTION 4.03 CORPORATE EXISTENCE.....................................................22
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.................................................23
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
SECTION 4.10 LIMITATION ON LIENS.....................................................26
i
3
SECTION 4.11 CHANGE OF CONTROL.......................................................27
SECTION 4.12 DISPOSITION OF PROCEEDS OF ASSET SALES OF DISPOSITION PROPERTIES........28
SECTION 4.13 LIMITATION ON TRANSACTIONS WITH INTERESTED PERSONS......................29
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..........................................................31
SECTION 5.01 WHEN LGII MAY MERGE, ETC. ..............................................31
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.....................................................35
SECTION 6.07 RIGHT OF HOLDERS TO RECEIVE PAYMENT.....................................36
SECTION 6.08 COLLECTION SUIT BY TRUSTEE..............................................36
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIMS.......................................36
SECTION 6.10 PRIORITIES..............................................................36
SECTION 6.11 UNDERTAKING FOR COSTS...................................................37
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES......................................37
ARTICLE 7 TRUSTEE........................................................................37
SECTION 7.01 DUTIES..................................................................37
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...........................................39
SECTION 7.08 COMPENSATION AND INDEMNITY..............................................39
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........................................41
SECTION 8.01 TERMINATION OF THE OBLIGATION OF LGII...................................41
SECTION 8.02 LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................42
SECTION 8.03 APPLICATION OF TRUST MONEY..............................................44
SECTION 8.04 REPAYMENT TO LGII.......................................................44
SECTION 8.05 REINSTATEMENT...........................................................45
ii
4
ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................45
SECTION 9.01 WITHOUT CONSENT OF HOLDERS..............................................45
SECTION 9.02 WITH CONSENT OF HOLDERS.................................................45
SECTION 9.03 COMPLIANCE WITH TRUST
INDENTURE ACT.....................................46
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.......................................46
SECTION 9.05 NOTATION ON OR EXCHANGE OF TWO-YEAR NOTES...............................47
SECTION 9.06 TRUSTEE MAY SIGN AMENDMENTS, ETC. ......................................47
ARTICLE 10 [INTENTIONALLY OMITTED].......................................................47
ARTICLE 11 MISCELLANEOUS.................................................................47
SECTION 11.01 TRUST
INDENTURE ACT OF 1939............................................47
SECTION 11.02 NOTICES................................................................47
SECTION 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS............................48
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.....................48
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..........................48
SECTION 11.06 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR..............................49
SECTION 11.07 GOVERNING LAW..........................................................49
SECTION 11.08 CONSENT TO SERVICE OF PROCESS..........................................49
SECTION 11.09 NO INTERPRETATION OF OTHER AGREEMENTS..................................49
SECTION 11.10 NO RECOURSE AGAINST OTHERS.............................................49
SECTION 11.11 SUCCESSORS.............................................................50
SECTION 11.12 DUPLICATE ORIGINALS....................................................50
SECTION 11.13 SEPARABILITY...........................................................50
SECTION 11.14 TABLE OF CONTENTS, HEADINGS, ETC. .....................................50
SECTION 11.15 BENEFITS OF
INDENTURE..................................................50
ARTICLE 12 SUBSIDIARY GUARANTIES.........................................................50
SECTION 12.01 GUARANTIES.............................................................50
SECTION 12.02 LIMITATION ON LIABILITY................................................51
SECTION 12.03 SUCCESSORS AND ASSIGNS.................................................51
SECTION 12.04 NO WAIVER..............................................................52
SECTION 12.05 MODIFICATION...........................................................52
SECTION 12.06 RELEASE OF SUBSIDIARY GUARANTOR........................................52
SCHEDULE A SUBSIDIARY GUARANTORS
SCHEDULE 4.12 NON-CASH DISPOSABLE ASSETS
EXHIBIT A FORM OF GLOBAL NOTE
EXHIBIT B FORM OF PHYSICAL NOTE
iii
5
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").
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 LGII's 12 1/4% Senior Notes due [SECOND ANNIVERSARY OF THE
EFFECTIVE DATE OF THE PLAN OF REORGANIZATION] (the "TWO-YEAR 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.
"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 purposes of this definition, the term "ASSET SALE" shall not
include any sales, transfers or other dispositions of equipment, 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.
1
6
"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 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
2
7
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
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
3
8
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.
"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.
"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.
4
9
"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.
"DEPOSITARY" means The Depositary Trust Company, its nominees and their
respective successors.
"EVENT OF DEFAULT" has the meaning set forth under Section 6.01 herein.
"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.
"GAAP" means accounting principles generally accepted in the United
States consistently applied.
"GLOBAL NOTE" has the meaning set forth in Section 2.01.
"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 Two-Year Notes on the terms provided for
in this indenture.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Two-Year 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
5
10
(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 Two-Year
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 Two-Year 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" 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.
"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 Two-Year Note, the date on
which any principal of such Two-Year 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.
6
11
"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.
"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 Two-Year 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.
"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 Unsecured Convertible 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 Five-Year
Notes, the Seven-Year Notes and the Unsecured Convertible Subordinated 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;
7
12
(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;
(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 Two-Year Notes, such Refinanced
Indebtedness constitutes Indebtedness subordinated in right of payment to the
Two-Year 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;
8
13
(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.
"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);
9
14
(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;
(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.
"PHYSICAL NOTE" has the meaning set forth in Section 2.01.
"PLAN OF REORGANIZATION" means the [FINAL PLAN OF REORGANIZATION].
"PREDECESSOR NOTES" means, with respect to any particular Two-Year
Note, every previous Two-Year Note evidencing all or a portion of the same debt
as that evidenced by such particular Two-Year Note; and, for the purposes of
this definition, any Two-Year Notes authenticated and delivered under Section
2.08 hereof in exchange for mutilated Notes or in lieu of lost, destroyed or
stolen Two-Year Notes, shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Two-Year Notes.
10
15
"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 Two-Year 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.
"REDEMPTION DATE" means, with respect to any Two-Year Note to be
redeemed, the date fixed by LGII for such redemption pursuant to this Indenture
and the terms of the Two-Year Notes.
"REDEMPTION PRICE" means, with respect to any Two-Year Note to be
redeemed, the price fixed for such redemption pursuant to the terms of this
Indenture and the Two-Year 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.
"SEVEN-YEAR NOTES" means the securities issued under the Seven-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.
"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
11
16
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 Two-Year Note or
any installment of interest thereon, the date specified in such Two-Year Note as
the fixed date on which the principal of such Two-Year Note or such installment
of interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"SUBSIDIARY" means, with respect to any Person, (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 Two-Year 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 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 that are issued under this
Indenture, as amended, modified or supplemented from time to time.
"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
12
17
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.
"UNSECURED CONVERTIBLE SUBORDINATED NOTES" means the securities issued
under the Unsecured Convertible Subordinated 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.
"UNSECURED CONVERTIBLE SUBORDINATED NOTES 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% unsecured
convertible subordinated notes due [THE TENTH ANNIVERSARY OF THE EFFECTIVE DATE
OF THE PLAN], 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.
"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 Two-Year Notes;
"INDENTURE SECURITY HOLDER" means a Noteholder or Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means LGII or any other obligor
on the Two-Year 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:
13
18
(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 TWO-YEAR NOTES
SECTION 2.01 ISSUANCE OF TWO-YEAR NOTES.
The aggregate principal amount of Two-Year Notes which may be
outstanding at any time under this Indenture may not exceed $165,000,000(2) at
any time, except to the extent permitted by Sections 2.08 and 2.17. Upon the
execution and delivery of this Indenture, Two-Year Notes in an aggregate
principal amount of $165,000,000(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 Two-Year Notes under this Indenture are being issued pursuant to
the Plan of Reorganization which provides, among other things, that the Two-Year
Notes and certain other securities are being issued in exchange for and in
satisfaction of certain claims against LGII, The Xxxxxx Group Inc. (the former
parent company of LGII) or certain Debtor Subsidiaries (as defined in the Plan
of Reorganization) of LGII or The Xxxxxx Group Inc. As a condition precedent to
the receipt, pursuant to the Plan of Reorganization, of a Global Note or a
Physical Note initially issued by LGII, each holder of Allowed Claims (as
defined in the Plan of Reorganization) or Allowed Interests (as defined in the
Plan of Reorganization) entitled to receive Two-Year Notes pursuant to the Plan
of Reorganization must, except as otherwise provided in the Plan of
Reorganization, tender to the Disbursing Agent the securities in exchange for
which the Two-Year Notes are being issued hereunder in accordance with the Plan
of Reorganization and the confirmation order relating thereto. Accordingly,
Two-Year Notes may be issued on different dates commencing on the Measurement
Date, and special provision will be made in accordance with the Plan of
Reorganization and the confirmation order relating thereto with respect to
procedures for issuance of Two-Year Notes and certain deductions that may be
made by the Disbursing Agent from amounts otherwise payable in respect of
accrued interest on Two-Year Notes first issued on or after June 15, 2002. No
Two-Year Note will be deemed outstanding for purposes of exercising voting or
similar rights of a Holder pursuant to this Indenture unless and until it or a
Predecessor Note has been issued to the Holder in compliance with such
conditions of issuance as may be set forth in the Plan of Reorganization or the
confirmation order relating thereto. Receipt by the Trustee of an authentication
order from LGII or the Disbursing Agent will be sufficient evidence of
compliance with such conditions. If the date of issuance of any Two-Year Note is
on or after June 15, 2002, the Disbursing Agent will deliver to the Holder,
together with such Two-Year Note, an amount of cash equal to the amount of
interest payable thereon from the Measurement Date to the Interest Payment Date
immediately preceding such date of issuance or to the date of issuance if such
date is an Interest Payment Date; PROVIDED, HOWEVER, that there will be deducted
therefrom an amount equal to any taxes paid or payable in respect of such
Two-Year Note, and an amount sufficient
----------
(2) Will be reduced by an amount equal to the Realized Asset Disposition
Proceeds Amount (as defined in the Plan of Reorganization).
(3) Will be reduced by an amount equal to the Realized Asset Disposition
Proceeds Amount (as defined in the Plan of Reorganization).
14
19
to compensate the Trustee, LGII and the Disbursing Agent for their reasonable
expenses of administering such Two-Year Note from the Measurement Date to the
date of its issuance.
The Two-Year Notes and the Trustee's certificate of authentication
thereon shall be in substantially the form of Exhibits A or B 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 Two-Year Notes, as evidenced by their execution thereof.
The Two-Year Notes shall be issuable only in registered form without coupons and
only in denominations of $100 and integral multiples thereof.
The definitive Two-Year 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 Two-Year Notes may be listed, all as determined by the
Officers executing such Two-Year Notes, as evidenced by their execution of such
Two-Year Notes. Each Two-Year Note shall be dated the date of its
authentication.
In accordance with the terms of the Plan of Reorganization and subject
to the penultimate paragraph of this Section 2.01, Two-Year Notes shall be
issued in the form of one or more permanent global Two-Year Notes substantially
in the form set forth in Exhibit A hereto (the "GLOBAL NOTE") deposited with, or
on behalf of, the Depositary or with the Trustee, as custodian for the
Depositary, duly executed by LGII and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Depositary or its nominee, or of the trustee, as custodian for the Depositary or
its nominee, as hereinafter provided.
Each holder of an Allowed Claim or an Allowed Interest entitled to
receive Two-Year Notes pursuant to the Plan of Reorganization who has tendered
the securities representing such holder's Allowed Claim or Allowed Interest and
otherwise complied with the terms of the Plan of Reorganization but is not
eligible to hold a Global Note shall be issued Two-Year Notes in the form of
permanent certificated Two-Year Notes in registered form in substantially the
form set forth in Exhibit B hereto (the "PHYSICAL NOTES"). Two-Year Notes issued
pursuant to Section 2.09 in exchange for interests in the Global Note shall be
in the form of Physical Notes.
The terms and provisions contained in the form of the Two-Year Notes,
annexed hereto as Exhibits A and B, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, LGII 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 RESTRICTIVE LEGEND.
Each Global Note shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO LGII OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE.
15
20
SECTION 2.03 EXECUTION AND AUTHENTICATION.
Two Officers shall execute the Two-Year Notes on behalf of LGII by
either manual or facsimile signature. If an Officer whose signature is on a
Two-Year Note no longer holds that office at the time the Trustee authenticates
the Two-Year Note or at any time thereafter, the Two-Year Note shall be valid
nevertheless.
A Two-Year Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Two-Year Note.
Such signature shall be conclusive evidence that the Two-Year Note has been
authenticated under this Indenture.
The Trustee shall authenticate Two-Year Notes for original issue upon
receipt of an Officers' Certificate signed by two Officers of LGII directing the
Trustee to authenticate the Two-Year Notes and certifying that all conditions
precedent to the issuance of the Two-Year 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 Two-Year Notes. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Two-Year 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 Two-Year
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 Two-Year Notes may be
presented for payment of principal, premium, if any, and interest (the "PAYING
AGENT") and an office or agency where notices and demands to or upon LGII in
respect of the Two-Year Notes and this Indenture may be served. The Registrar
shall keep a register of the Two-Year 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 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. LGII shall
enter into an appropriate agency agreement with any Registrar or Paying Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Registrar or Paying Agent. LGII shall notify the Trustee of the name and
address of any such Registrar or Paying Agent. If LGII fails to maintain a
Registrar, Paying Agent or agent for service of notices and demands, or fails to
give the foregoing notice, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with Section 7.08. LGII initially
appoints the Trustee as Registrar, Paying Agent and agent for service of notices
and demands in connection with the Two-Year Notes.
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 Two-Year Notes (whether such money has been
distributed to it by LGII or any other obligor on the Two-Year Notes), and LGII
(or any other obligor on the Two-Year Notes) and the Paying Agent shall notify
the Trustee of any default by LGII (or any other obligor on the Two-Year 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 Two-Year 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 Two-Year Notes) shall have no further liability for the money so paid over
to the Trustee.
16
21
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 Two-Year Notes are presented to the Registrar or a co-Registrar
with a request to register the transfer of such Two-Year Notes or to exchange
such Two-Year Notes for an equal principal amount of Two-Year Notes of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; PROVIDED, HOWEVER, that the Two-Year Notes surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or co-Registrar,
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 Two-Year 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 Two-Year Note (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Two-Year Notes
and ending at the close of business on the day of such mailing and (ii) selected
for redemption in whole or in part pursuant to Article 3, except the unredeemed
portion of any Two-Year Note being redeemed in part.
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 Two-Year Note
shall be required to be reflected in a book entry.
SECTION 2.08 REPLACEMENT NOTES.
If a mutilated Two-Year Note is surrendered to the Trustee or if the
Holder of a Two-Year Note claims that the Two-Year Note has been lost, destroyed
or wrongfully taken, LGII shall issue and the Trustee shall authenticate a
replacement Two-Year Note if the Trustee's requirements are satisfied. If
required by the Trustee or LGII, such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both LGII and the Trustee, to
protect LGII, the Trustee or any Paying Agent or Registrar from any loss which
any of them may suffer if a Two-Year Note is replaced. LGII may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Two-Year Note,
including reasonable fees and expenses of counsel. Every replacement Two-Year
Note is an additional obligation of LGII.
SECTION 2.09 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE.
(a) The Global Note initially shall (i) be registered in the
name of the Depositary for such Global Note or the nominee of such Depositary,
(ii) be deposited with, or on behalf of, the Depositary or with the Trustee, as
custodian for such Depositary, and (iii) bear a legend as set forth in Section
2.02. Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by LGII, the Trustee and any
agent of LGII or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
LGII, the Trustee or any agent of LGII or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Two-Year Note.
17
22
(b) Transfers of the Global Note shall be limited to transfers
of such Global Note in whole, but not in part, to the Depositary, its successors
or their respective nominees. Interests of beneficial owners in the Global Note
may be transferred in accordance with the rules and procedures of the
Depositary. In addition, Physical Notes shall be issued to all beneficial owners
in exchange for their beneficial interests in the Global Note if (i) the
Depositary notifies LGII that it is unwilling or unable to continue as
Depositary for the Global Note and a successor depositary is not appointed by
LGII within 90 days of such notice or (ii) an Event of Default has occurred and
is continuing and the Registrar has received a request from the Depositary.
(c) In connection with any transfer of a portion of the
beneficial interest in the Global Note pursuant to Section 2.09(b) to beneficial
owners who are required to hold Physical Notes, the Registrar shall reflect on
its books and records the date and a decrease in the principal amount of the
Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and LGII shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Notes of like tenor
and amount.
(d) In connection with the transfer of the entire Global Note
to beneficial owners pursuant to Section 2.09(b), the Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and LGII shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the Global Note an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) The Holder of the Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Two-Year Notes.
(f) Any beneficial owner of interests in a Global Note may
request, and upon request shall be issued, Physical Notes in accordance with the
procedures of the Depositary. In connection with the execution, authentication
and delivery of such Physical Notes, the Registrar shall reflect on its books
and records a decrease in the principal amount of the relevant Global Note equal
to the principal amount of such Physical Notes and LGII shall execute and the
Trustee shall authenticate and deliver one or more Physical Notes having an
equal aggregate principal amount.
SECTION 2.10 OUTSTANDING TWO-YEAR NOTES.
Two-Year Notes outstanding at any time are all the Two-Year 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 Two-Year Note shall cease to be outstanding if LGII or any of its
Subsidiaries holds the Two-Year Note.
If a Two-Year Note is replaced pursuant to Section 2.07 (other than a
mutilated Two-Year Note surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Two-Year Note is held by a bona fide purchaser. A mutilated Two-Year
Note ceases to be outstanding upon surrender of such Two-Year 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 Two-Year Notes payable on that date, and is not
prohibited from paying such cash to the Holders of such Two-Year Notes pursuant
to the terms of this Indenture, then on and after that date such Two-Year 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
Two-Year Notes have concurred in any direction, waiver or consent, Two-Year
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 Two-Year Notes that the
Trustee knows or has reason to know are so owned shall be disregarded.
18
23
SECTION 2.12 TEMPORARY NOTES.
Until definitive Two-Year Notes are prepared and ready for delivery,
LGII may prepare and the Trustee shall authenticate temporary Two-Year Notes.
Temporary Two-Year Notes shall be substantially in the form of definitive
Two-Year Notes but may have variations that LGII considers appropriate for
temporary Two-Year Notes. Without unreasonable delay, LGII shall prepare and the
Trustee shall authenticate definitive Two-Year Notes in exchange for temporary
Two-Year Notes. Until such exchange, temporary Two-Year Notes shall be entitled
to the same rights, benefits and privileges as definitive Two-Year Notes.
Holders of temporary Two-Year Notes shall be entitled to all benefits of this
Indenture.
SECTION 2.13 CANCELLATION.
LGII at any time may deliver Two-Year Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Two-Year Notes surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than LGII or an Affiliate of LGII), and no one else, shall promptly
cancel and dispose of all Two-Year Notes surrendered for transfer, exchange,
payment or cancellation, subject to the record retention requirements of the
Exchange Act. Subject to Section 2.08, LGII may not issue new Two-Year Notes to
replace Two-Year Notes that it has paid or delivered to the Trustee for
cancellation. If LGII shall acquire any of the Two-Year Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Two-Year 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 Two-Year 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 Two-Year Notes may use a "CUSIP" number with
respect to the Two-Year 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 Two-Year Notes, and that reliance may be placed
only on the other identification numbers printed on the Two-Year 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.
19
24
SECTION 2.17 ISSUANCE OF NOTES IN EXCESS OF $165,000,000 PURSUANT TO
PLAN OF REORGANIZATION.
LGII may issue and have outstanding at any time under this Indenture
any aggregate principal amount of Two-Year Notes exceeding $165,000,000(4) 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 TWO-YEAR NOTES
SECTION 3.01 OPTIONAL REDEMPTION.
The Two-Year 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. If LGII elects to redeem any Two-Year Notes, in whole or in
part, it shall notify the Trustee of the Redemption Date and principal amount of
Two-Year Notes to be redeemed.
LGII shall notify the Trustee by an Officers' Certificate, stating that
such redemption will comply with the provisions hereof and of such Two-Year
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 TWO-YEAR NOTES TO BE REDEEMED.
If less than all the Two-Year Notes are to be redeemed, the particular
Two-Year Notes or portions thereof to be redeemed shall be selected from the
outstanding Two-Year 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 Two-Year Notes being redeemed are listed. The
amounts to be redeemed shall be equal to $100 or any integral multiple thereof.
The amount of Two-Year Notes shall be calculated as the aggregate
principal amount of Two-Year Notes originally issued hereunder less the
aggregate principal amount of any Two-Year 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 Two-Year Notes not previously called
for redemption.
The Trustee shall promptly notify LGII and the Registrar in writing of
the Two-Year Notes selected for redemption and, in the case of any Two-Year
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 Two-Year Notes shall relate,
in the case of any Two-Year Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Two-Year 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 10 nor more than 60 days prior to the Redemption
Date, to each Holder of Two-Year Notes to be redeemed, at the address of such
Holder appearing in the Two-Year Note register maintained by the Registrar.
All notices of redemption shall identify the Two-Year Notes to be
redeemed and shall state:
----------
(4) Will be reduced by an amount equal to the Realized Asset Disposition
Proceeds Amount (as defined in the Plan of Reorganization).
20
25
(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 Two-Year Notes called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders of
such Two-Year Notes is to receive payment of the Redemption Price and accrued
interest, if any, upon surrender to the Paying Agent of the Two-Year Notes
redeemed;
(d) if any Two-Year Note is to be redeemed in part, the
portion of the principal amount (equal to $100 or any integral multiple thereof)
of such Two-Year Note to be redeemed and that on and after the Redemption Date,
upon surrender for cancellation of such original Two-Year Note to the Paying
Agent, a new Two-Year Note or Two-Year Notes in the aggregate principal amount
equal to the unredeemed portion thereof will be issued without charge to the
Holder;
(e) that Two-Year 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 Two-Year Notes,
but no representation is made as to the correctness or accuracy of any such
CUSIP numbers; and
(g) the paragraph of the Two-Year Notes or Section of this
Indenture pursuant to which the Two-Year Notes are being redeemed.
Notice of redemption of Two-Year 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, Two-Year Notes called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Two-Year 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 Two-Year Notes or portions thereof
which are to be redeemed on that date, other than Two-Year 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 Two-Year
Notes to be redeemed.
If LGII complies with the preceding paragraph, then, unless LGII
defaults in the payment of such Redemption Price, interest on the Two-Year Notes
to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Two-Year Notes are presented for payment. If any Two-Year
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 Two-Year Notes.
SECTION 3.07 TWO-YEAR NOTES REDEEMED OR PURCHASED IN PART.
Upon surrender to the Paying Agent of a Two-Year Note that is to be
redeemed in part, LGII shall execute and the Trustee shall authenticate and
deliver to the Holder of such Two-Year Note without service charge, a new
Two-Year Note or Two-Year Notes of any authorized denomination as requested by
such Holder in aggregate
21
26
principal amount equal to, and in exchange for, the unredeemed portion of the
principal of the Two-Year Note so surrendered that is not redeemed.
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 Two-Year Note:
SECTION 4.01 PAYMENT OF TWO-YEAR NOTES.
LGII will pay, or cause to be paid, the principal of and interest on
the Two-Year Notes on the dates and in the manner provided in the Two-Year 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 Two-Year 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 Two-Year 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 a
co-Registrar) where Two-Year Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon LGII in respect of the Two-Year 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 Two-Year 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.
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.
22
27
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.
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.
23
28
(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 Two-Year 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);
(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 Two-Year 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 or Five-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
24
29
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 Two-Year 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, 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 Two-Year 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
Two-Year 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
25
30
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, Rosehills Holding Corp., a Delaware corporation, any
Subsidiary of any such Person, and any successors to any of the foregoing)
unless (a) all of the Capital Stock of such Restricted Subsidiary is sold and
(b) 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, Rosehills 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).
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 this Indenture,
the Five-Year Indenture, the Seven-Year Indenture or the Unsecured Convertible
Subordinated 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.
26
31
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 Two-Year 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 Two-Year 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 Two-Year 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 Two-Year Note, the Change of Control Purchase Date
and the date on which the Change of Control Offer expires;
(c) that any Two-Year 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 Two-Year 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 Two-Year Notes purchased
pursuant to a Change of Control Offer must surrender their Two-Year 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 Two-Year 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 Two-Year Notes the Holder delivered for purchase, the Two-Year Note
certificate number (if any) and a statement that such Holder is withdrawing its
election to have such Two-Year Notes purchased;
(g) that Holders whose Two-Year Notes are purchased only in
part will be issued Two-Year Notes equal in principal amount to the unpurchased
portion of the Two-Year Notes surrendered;
(h) the instructions that Holders must follow in order to
tender their Two-Year 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 the Two-Year Notes as a result of a Change of Control.
On the Change of Control Purchase Date, LGII shall (i) accept for
payment Two-Year Notes or portions thereof validly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money, in
27
32
immediately available funds, sufficient to pay the purchase price of all
Two-Year Notes or portions thereof so tendered and accepted, and (iii) deliver
to the Trustee the Two-Year Notes so accepted together with an Officers'
Certificate setting forth the Two-Year Notes or portions thereof tendered to and
accepted for payment by LGII. The Paying Agent shall promptly mail or deliver to
the Holders of Two-Year 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 Two-Year Note equal in principal amount to any unpurchased
portion of the Two-Year Note surrendered. Any Two-Year 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 Two-Year Notes properly tendered and not
withdrawn, LGII will be obliged to purchase all such Two-Year 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 Two-Year 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 Two-Year Notes pursuant to a Change of Control Offer.
SECTION 4.12 DISPOSITION OF PROCEEDS OF ASSET SALES OF DISPOSITION
PROPERTIES. (a) Any Net Cash Proceeds (PROVIDED, HOWEVER, that for purposes of
this Section 4.12 only, Net Cash Proceeds shall be deemed to include an amount
of cash equal to, in the good faith judgment of LGII, the Fair Market Value of
any non-cash consideration received as proceeds in an Asset Sale) from any Asset
Sale of a Disposition Property (as defined in the Plan of Reorganization)
constitute "DISPOSITION PROPERTY PROCEEDS" subject to disposition as provided
below.
(b) When the aggregate amount of Disposition Property Proceeds
equals or exceeds $5,000,000, LGII shall make an offer to purchase (an "ASSET
SALE OFFER"), from all holders of Two-Year Notes, not more than 40 Business Days
thereafter, an aggregate principal amount of Two-Year Notes equal to such
Disposition Property 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"). Upon the consummation of
any such Asset Sale Offer, the amount of Disposition Property Proceeds shall be
reset to zero.
(c) Notice of an Asset Sale Offer shall be mailed by LGII to
all Holders of Two-Year 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 Two-Year Note, the Asset Sale Purchase
Date and the date on which the Asset Sale Offer expires;
(iii) that any Two-Year 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 Two-Year Note accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest after the Asset Sale Purchase
Date;
28
33
(v) that Holders electing to have Two-Year Notes
purchased pursuant to an Asset Sale Offer must surrender their Two-Year 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 Two-Year Notes the
Holder delivered for purchase, the Two-Year Note certificate number (if any) and
a statement that such Holder is withdrawing its election to have such Two-Year
Notes purchased;
(vii) that if Two-Year Notes in a principal amount in
excess of the Holder's pro rata share of the amount of Disposition Property
Proceeds are tendered pursuant to the Asset Sale Offer, LGII shall purchase
Two-Year Notes on a pro rata basis among the Two-Year Notes tendered (with such
adjustments as may be deemed appropriate by LGII so that only Two-Year Notes in
denominations of $100 or integral multiples of $100 shall be acquired);
(viii) that Holders whose Two-Year Notes are
purchased only in part will be issued new Two-Year Notes equal in principal
amount to the unpurchased portion of the Two-Year Notes surrendered;
(ix) the instructions that Holders must follow in
order to tender their Two-Year 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.
(d) On the Asset Sale Purchase Date, LGII shall (i) accept for
payment, on a pro rata basis, Two-Year 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 Two-Year Notes or portions thereof so tendered and accepted and
(iii) deliver to the Trustee the Two-Year Notes so accepted together with an
Officers' Certificate setting forth the Two-Year Notes or portions thereof
tendered to and accepted for payment by LGII. The Paying Agent shall promptly
mail or deliver to Holders of Two-Year 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 Two-Year Note equal in principal
amount to any unpurchased portion of the Two-Year Note surrendered. Any Two-Year
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 Two-Year 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 Two-Year 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,
29
34
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 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 Two-Year 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 Seven-Year
Notes, the Five-Year Notes and the Unsecured Convertible Subordinated Notes) or
encumbrances and restrictions in permitted refinancings or replacements thereof
which are no less favorable to the holders of the Two-Year Notes than those
contained in the Indebtedness so refinanced or replaced.
30
35
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 Two-Year 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
Two-Year Notes and prospective purchasers of the Two-Year Notes designated by
the holders of the Two-Year 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 Two-Year 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.
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,
31
36
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 Two-Year
Notes and the performance and observance of every covenant and obligation of
this Indenture and the Two-Year 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:
(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.
32
37
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 Two-Year
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 Two-Year Notes means any of
the following events:
(a) default in the payment of the principal of or premium, if
any, on any Two-Year 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 Two-Year Note, when the same becomes due and payable, and any such Default
continues for a period of 20 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 Two-Year 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 Two-Year 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 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;
33
38
(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 Two-Year Notes, the Trustee, by written notice to
LGII, or the Holders of at least 25% in aggregate principal amount of the
Two-Year Notes then outstanding, by written notice to the Trustee and LGII, may
declare the principal of, premium, if any, and accrued and unpaid interest, if
any, on all of the Two-Year Notes to be due and payable immediately, upon which
declaration, all amounts payable in respect of the Two-Year 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 Two-Year 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 Two-Year Notes.
After a declaration of acceleration hereunder with respect to the
Two-Year 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 Two-Year 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 Two-Year Notes, (iii) the principal of and premium, if any, on any Two-Year
Notes that have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Two-Year 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
34
39
rate borne by the Two-Year 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 Two-Year 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 Two-Year Notes or to enforce
the performance of any provision of the Two-Year Notes or this Indenture.
All rights of action and claims under this Indenture or the Two-Year
Notes may be enforced by the Trustee even if it does not possess any of the
Two-Year 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 and 9.02, the Holders of not
less than a majority in aggregate principal amount of the outstanding Two-Year
Notes by notice to the Trustee may, on behalf of the Holders of all the Two-Year
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 Two-Year 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, 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 Two-Year Notes shall have any right to institute any
proceeding or pursue any remedy with respect to this Indenture or the Two-Year
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 Two-Year 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;
35
40
(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 Two-Year 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 Two-Year Note on or after the respective due dates set
forth in such Two-Year 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.
Notwithstanding any other provision in this Indenture, the right of any
Holder of a Two-Year Note to receive payment of the principal of, premium, if
any, and interest on such Two-Year Note, on or after the respective Stated
Maturities expressed in such Two-Year Note, or to bring suit for the enforcement
of any such payment on or after the respective Stated Maturities, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
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 Two-Year
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
Two-Year 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 Two-Year Notes),
their creditors or their property and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.08. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Two-Year
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;
36
41
Second: to the Holders for interest accrued on the Two-Year
Notes, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Two-Year Notes for interest;
Third: to the Holders for principal amounts (including any
premium) owing under the Two-Year Notes, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Two-Year 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 Two-Year 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 Two-Year 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.
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.
37
42
(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 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.
38
43
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee, any Paying Agent, Registrar or any other agent of LGII, in
its individual or any other capacity, may become the owner or pledgee of
Two-Year 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 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 Two-Year Notes, it shall not be accountable for
LGII's use or application of the proceeds from the Two-Year 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 Two-Year 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 Two-Year 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 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 Two-Year Notes are listed.
LGII shall notify the Trustee in writing if the Two-Year 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
39
44
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 Two-Year 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 Two-Year
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 Two-Year Notes may remove the Trustee by
so notifying LGII and the Trustee and may appoint a successor trustee with
LGII's prior written consent. LGII may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, LGII shall notify each Holder of such event
and shall promptly appoint a successor Trustee. The Trustee shall be entitled to
payment of its fees and reimbursement of its expenses while acting as Trustee 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 Two-Year 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 Two-Year 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.
40
45
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.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF THE OBLIGATION OF LGII.
LGII may terminate its obligations under the Two-Year Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Two-Year Notes previously authenticated and delivered
(other than destroyed, lost or stolen Two-Year Notes that have been replaced or
paid or Two-Year 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 Two-Year Notes under arrangements satisfactory to the
Trustee for the giving of such notice or (ii) all Two-Year 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 Two-Year 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 Two-Year Notes;
41
46
(c) no Default or Event of Default with respect to this
Indenture or the Two-Year 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 Two-Year
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 Two-Year
Notes are no longer outstanding pursuant to Section 2.10. After the Two-Year
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
Two-Year 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 Two-Year Notes, elect to
have either paragraph (b) or paragraph (c) below be applied to the outstanding
Two-Year 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 Two-Year 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 indebtedness represented by the
outstanding Two-Year 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 Two-Year Notes and this Indenture
insofar as such Two-Year 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 Two-Year 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 Two-Year Notes when such payments are due, (ii)
LGII's obligations with respect to such Two-Year 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 Two-Year 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 Two-Year Notes on and after
the date the conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Two-Year 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 Two-Year 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 Two-Year Notes shall be unaffected thereby.
42
47
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Two-Year 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 Two-Year Notes, (A) cash, in United
States dollars, in an amount sufficient to pay principal of, premium, if any,
and interest on the outstanding Two-Year 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 Two-Year 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 Two-Year Notes (except lost, stolen or destroyed
Two-Year 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 Two-Year
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 Two-Year 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 Two-Year Notes shall have occurred and be continuing
on the date of such deposit or, insofar as Section 6.01(a) is concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period);
(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 Two-Year 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 Two-Year 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
43
48
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 Two-Year Notes, the Trustee will hold, for the benefit of the Holders
of Two-Year 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 Two-Year 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 Two-Year 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 Two-Year Notes
shall be held in trust and applied by the Trustee (or other qualifying trustee),
in accordance with the provisions of such Two-Year 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 Two-Year 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
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 Two-Year 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 Two-Year 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.
44
49
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 Two-Year 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 Two-Year Notes because of the reinstatement of its
obligations, LGII shall be subrogated to the rights of the Holders of such
Two-Year 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 Two-Year
Notes without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(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 Two-Year Notes with the written
consent of the Holders of not less than a majority in aggregate principal amount
of the Two-Year Notes then outstanding, and the Holders of not less than a
majority in aggregate principal amount of the Two-Year Notes then outstanding by
written notice to the Trustee may waive future compliance by LGII with any
provision of this Indenture or the Two-Year 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 Two-Year Notes the Holders of which must consent to an amendment,
supplement or waiver of any provision of this Indenture or the Two-Year Notes;
(b) reduce or change the rate or time for payment of interest
on any Two-Year Note;
(c) change the currency in which any Two-Year Note, or any
premium or interest thereon, is payable;
(d) reduce the principal amount outstanding of or extend the
fixed maturity of any Two-Year Note or alter the redemption provisions with
respect thereto;
45
50
(e) make the principal of, premium, if any, or interest on any
Two-Year Note payable in money other than that stated in the Two-Year Note;
(f) modify this Section 9.02 or Section 6.04 or Section 6.07;
(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 senior ranking of the Two-Year Notes;
(i) impair the right to institute suit for the enforcement of
any payment on or with respect to the Two-Year Notes; or
(j) release all or substantially all Subsidiary Guarantors and
other guarantors, if any, from guarantees of the Indebtedness evidenced by the
Two-Year Notes.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, LGII shall mail to the Holder of each Two-Year 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 Two-Year
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 Two-Year Note or portion of that Two-Year Note that evidences the
same debt as the consenting Holder's Two-Year Note, even if notation of the
consent is not made on any Two-Year Note. However, any such Holder or subsequent
Holder may revoke the consent as to his Two-Year Note or portion of a Two-Year
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 Two-Year Note or portion of a Two-Year Note that evidences the same debt as
the consenting Holder's Two-Year Note.
46
51
SECTION 9.05 NOTATION ON OR EXCHANGE OF TWO-YEAR NOTES.
If an amendment, supplement or waiver changes the terms of a Two-Year
Note, the Trustee shall (in accordance with the specific direction of LGII)
request the Holder of the Two-Year Note to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of LGII) place an
appropriate notation on the Two-Year Note about the changed terms and return it
to the Holder. Alternatively, if LGII or the Trustee so determines, LGII in
exchange for the Two-Year Note shall issue and the Trustee shall authenticate a
new Two-Year Note that reflects the changed terms. Failure to make the
appropriate notation or issue a new Two-Year 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.
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
47
52
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 Two-Year 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 Two-Year 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:
48
53
(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
Two-Year 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 Two-Year 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 Two-Year 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 Two-Year 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 Two-Year Note waives
and releases all such liability.
49
54
SECTION 11.11 SUCCESSORS.
All agreements of LGII in this Indenture and the Two-Year 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 Two-Year 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 Two-Year 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 Two-Year Notes when due, whether at maturity, by acceleration, by redemption
or otherwise, and all other monetary obligations of LGII under this Indenture
and the Two-Year Notes and (b) the full and punctual performance within
applicable grace periods of all other obligations of LGII under this Indenture
and the Two-Year 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 Two-Year 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 Two-Year 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 Two-Year 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 any Holder or the
50
55
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
Two-Year 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
51
56
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Two-Year 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.
52
57
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:
53
58
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.)
S-1
59
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.
S-2
60
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.
S-3
61
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.
S-4
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.
S-5
63
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.
S-6
64
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
65
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
S-8
66
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
67
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
S-10
68
EXHIBIT A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO LGII OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE.
XXXXXX GROUP INTERNATIONAL, INC.
12 1/4% Senior Notes DUE [SECOND ANNIVERSARY OF 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 CEDE & Co. or registered assigns, the
principal sum of _______________ Dollars on [THE SECOND 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 June 15 and December 15, in
each year, commencing on June 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 Global 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 June 1 or December 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 Global 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 Global 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 Global 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 Global 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
Global 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. Reference is hereby made to the further
provisions of this Global Note set forth on the reverse hereof.
A-1
69
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 Global Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
A-2
70
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-3
71
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Global Notes designated therein referred to in the
within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-------------------------------------
Authorized Officer
A-4
72
(Reverse of Global Note)
1. INDENTURE. This Global Note is one of the duly authorized Two-Year
Notes of LGII designated as its 12 1/4% Senior Notes due [THE SECOND ANNIVERSARY
OF THE EFFECTIVE DATE OF THE PLAN OF REORGANIZATION] (the "TWO-YEAR 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 Two-Year Notes, and of the terms upon which the Two-Year
Notes are, and are to be, authenticated and delivered.
All capitalized terms used in this Two-Year 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 Two-Year
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 Two-Year Note at the times, place and rate, and in the coin or
currency, herein prescribed.
2. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Two-Year Notes are redeemable as a whole
or in part, at the option of LGII, at any time upon not less than 10 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.
(b) PARTIAL REDEMPTION. In the event of redemption of this Two-Year
Note in part only, a new Two-Year Note or Two-Year 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
Two-Year 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 Two-Year 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 Two-Year Notes, plus all
accrued and unpaid interest, if any, to and including the date the Two-Year
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 Two-Year Note) for defeasance at any time of (a) the entire
indebtedness of LGII under this Two-Year 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 Two-Year Notes at
the time outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Two-Year
Notes at the time outstanding, on behalf of the Holders of all the Two-Year
Notes, to waive compliance by LGII with certain provisions of the Indenture and
certain past Defaults under the Indenture and this Two-Year Note and their
consequences. Any such consent or waiver by or on behalf of the Holder of this
Two-Year Note shall be conclusive
A-5
73
and binding upon such Holder and upon all future Holders of this Two-Year Note
and of any Two-Year 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 Two-Year Note.
7. DENOMINATIONS, TRANSFER AND EXCHANGE. The Two-Year Notes are
issuable only in registered form without coupons in denominations of $100 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Two-Year Notes are exchangeable for a
like aggregate principal amount of Two-Year 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 Two-Year Note is registrable on the security
register of LGII, upon surrender of this Two-Year 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 Two-Year 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 Two-Year 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 Two-Year Note for registration of transfer, LGII, the Trustee and any
agent of LGII or the Trustee may treat the Person in whose name this Two-Year
Note is registered as the owner hereof for all purposes, whether or not this
Two-Year Note shall be overdue, and neither LGII, the Trustee nor any agent
shall be affected by notice to the contrary.
10. GOVERNING LAW. This Two-Year Note shall be governed by and
construed in accordance with the laws of the State of New York.
A-6
74
Schedule A
Exchange of (a) portions of this Global Note for
Physical Notes or (b) Physical Notes
for an interest in this Global Note.
Principal Amount of Physical Notes Issued in Exchange
Date for, or Exchanged for an Interest in, the Global Note Remaining Principal Amount of this Global Note Notation Made By
---- ----------------------------------------------------- ---------------------------------------------- ----------------
---- ----------------------------------------------------- ---------------------------------------------- ----------------
---- ----------------------------------------------------- ---------------------------------------------- ----------------
---- ----------------------------------------------------- ---------------------------------------------- ----------------
---- ----------------------------------------------------- ---------------------------------------------- ----------------
---- ----------------------------------------------------- ---------------------------------------------- ----------------
X-0
00
XXXXXXX X
XXXXXX GROUP INTERNATIONAL, INC.
12 1/4% SENIOR NOTES DUE [THE SECOND 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 SECOND 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 June 15 and December 15, in
each year, commencing on June 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 Physical 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 June 1 or December 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 Physical 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 Physical 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 Two-Year 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 Two-Year 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
Physical 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 Physical
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 Physical Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
B-1
76
IN WITNESS WHEREOF, LGII has caused this instrument to be duly executed
under its corporate seal.
Dated:
XXXXXX GROUP INTERNATIONAL, INC.
By:
-----------------------------------------------
Name:
Title:
B-2
77
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Physical Notes designated therein referred to in the
within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-----------------------------------------------
Authorized Officer
B-3
78
(Reverse of Note)
1. INDENTURE. This Note is one of the duly authorized Two-Year Notes of
LGII designated as its 12 1/4% Senior Notes due [THE SECOND ANNIVERSARY OF THE
EFFECTIVE DATE OF THE PLAN OF REORGANIZATION] (the "TWO-YEAR 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 Two-Year Notes, and of the terms upon which the Two-Year 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.
2. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Two-Year Notes are redeemable as a whole
or in part, at the option of LGII, at any time upon not less than 10 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.
(b) PARTIAL REDEMPTION. In the event of redemption of this Two-Year
Note in part only, a new Two-Year Note or Two-Year 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
Two-Year 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 Two-Year 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 Two-Year Notes, plus all
accrued and unpaid interest, if any, to and including the date the Two-Year
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 Two-Year Notes at
the time outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Two-Year
Notes at the time outstanding, on behalf of the Holders of all the Two-Year
Notes, to waive compliance by LGII with certain provisions of the Indenture and
certain past Defaults under the Indenture and this Two-Year Note and their
consequences. Any such consent or waiver by or on behalf of the Holder of this
Note shall be conclusive and
B-4
79
binding upon such Holder and upon all future Holders of this Note and of any
Two-Year 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 Two-Year Notes are
issuable only in registered form without coupons in denominations of $100 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Two-Year Notes are exchangeable for a
like aggregate principal amount of Two-Year 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
Two-Year 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 Two-Year 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 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 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.
B-5
80
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Two-Year 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 Two-Year 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 Two-Year Note)
Signature Guarantee:
-------------------------------
B-6
81
ASSIGNMENT FORM
If you the holder want to assign this Two-Year Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Two-Year 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 Two-Year 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 Two-Year Note)
Signature Guarantee:
------------------------------------
