THE XXXXXX GROUP INC., as Issuer
and
FLEET NATIONAL BANK, as Trustee
INDENTURE
Dated as of ____________, 1997
$500,000,000
Debt Securities
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . . 1
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Incorporation by Reference of Trust Indenture Act . . . . .19
Section 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . .19
ARTICLE TWO THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . .19
Section 2.01 Amount of Securities; Issuable In Series. . . . . . . . . .19
Section 2.02 Forms Generally . . . . . . . . . . . . . . . . . . . . . .21
Section 2.03 Form Of Trustee's Certificate Of Authentication . . . . . .22
Section 2.04 Authentication And Delivery Of Securities . . . . . . . . .22
Section 2.05 Execution Of Securities . . . . . . . . . . . . . . . . . .25
Section 2.06 Certificate Of Authentication . . . . . . . . . . . . . . .25
Section 2.07 Denomination And Date Of Securities; Payments Of Interest .25
Section 2.08 Registrar . . . . . . . . . . . . . . . . . . . . . . . . .26
Section 2.09 Provision As To Paying Agent. . . . . . . . . . . . . . . .26
Section 2.10 Transfer and Exchange . . . . . . . . . . . . . . . . . . .27
Section 2.11 Mutilated, Defaced, Destroyed, Lost And Stolen Securities .29
Section 2.12 Cancellation Of Securities; Disposition Thereof . . . . . .30
Section 2.13 Temporary Securities. . . . . . . . . . . . . . . . . . . .30
Section 2.14 Defaulted Interest. . . . . . . . . . . . . . . . . . . . .30
Section 2.15 CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . .31
Section 2.16 Deposit of Moneys . . . . . . . . . . . . . . . . . . . . .31
ARTICLE THREE SECURITYHOLDERS LIST AND REPORTS BY XXXX AND THE TRUSTEE. . .31
Section 3.01 TLGI To Furnish Trustee Information As To Names
And Addresses Of Securityholders. . . . . . . . . . . . . .31
Section 3.02 Preservation And Disclosure Of Securityholders Lists. . . .31
Section 3.03 Reports By TLGI.. . . . . . . . . . . . . . . . . . . . . .32
ARTICLE FOUR COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . .33
Section 4.01 Payment of Securities . . . . . . . . . . . . . . . . . . .33
Section 4.02 Office For Notices And Payments, Etc. . . . . . . . . . . .33
Section 4.03 Corporate Existence . . . . . . . . . . . . . . . . . . . .34
Section 4.04 Payment of Taxes and Other Claims . . . . . . . . . . . . .34
Section 4.05 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law . . . . . . . . . . . . . . . . . . . .34
Section 4.06 Compliance Certificate. . . . . . . . . . . . . . . . . . .35
Section 4.07 Limitation on Indebtedness. . . . . . . . . . . . . . . . .35
Section 4.08 Limitation on Restricted Payments . . . . . . . . . . . . .36
Section 4.09 Limitation on Issuances and Sale of Preferred Stock by
Restricted Subsidiaries . . . . . . . . . . . . . . . . . .38
Section 4.10 Limitation on Liens . . . . . . . . . . . . . . . . . . . .38
Section 4.11 Change of Control . . . . . . . . . . . . . . . . . . . . .38
Section 4.12 Disposition of Proceeds of Asset Sales. . . . . . . . . . .40
Section 4.13 Limitation on Transactions with Interested Persons. . . . .42
Section 4.14 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . . .43
Section 4.15 Limitations on Sale-Leaseback Transactions. . . . . . . . .43
Section 4.16 Limitation on Applicability of Certain Covenants. . . . . .44
Section 4.17 Commission Reports. . . . . . . . . . . . . . . . . . . . .44
Section 4.18 Rule 144A Information Requirement . . . . . . . . . . . . .44
Section 4.19 Waiver of Stay, Extension or Usury Laws . . . . . . . . . .44
ARTICLE FIVE SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . .45
Section 5.01 When TLGI or LGII May Merge, etc. . . . . . . . . . . . . .45
Section 5.02 Successor Substituted . . . . . . . . . . . . . . . . . . .46
ARTICLE SIX REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .46
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . .46
Section 6.02 Acceleration. . . . . . . . . . . . . . . . . . . . . . . .48
Section 6.03 Other Remedies. . . . . . . . . . . . . . . . . . . . . . .48
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . .49
Section 6.05 Direction Of Proceedings; Waiver Of Defaults
By Majority Of Securityholders. . . . . . . . . . . . . . .49
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . .50
Section 6.07 Right of Holders To Receive Payment . . . . . . . . . . . .50
Section 6.08 Collection Suit by Trustee. . . . . . . . . . . . . . . . .50
Section 6.09 Trustee May File Proofs of Claims . . . . . . . . . . . . .50
Section 6.10 Application Of Moneys Collected By Trustee. . . . . . . . .51
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . .52
Section 6.12 Restoration of Rights and Remedies. . . . . . . . . . . . .52
Section 6.13 Remedies Cumulative And Continuing. . . . . . . . . . . . .52
ARTICLE SEVEN TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Section 7.01 Duties And Responsibilities Of The Trustee;
During Default; Prior To Default. . . . . . . . . . . . . .52
Section 7.02 Certain Rights Of The Trustee . . . . . . . . . . . . . . .53
Section 7.03 Trustee And Agents May Hold Securities; Collections, Etc. .55
Section 7.04 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . .55
Section 7.05 Notice of Default . . . . . . . . . . . . . . . . . . . . .55
Section 7.06 Money Held in Trust . . . . . . . . . . . . . . . . . . . .55
Section 7.07 Reports by Trustee to Holders . . . . . . . . . . . . . . .55
Section 7.08 Compensation and Indemnity. . . . . . . . . . . . . . . . .55
Section 7.09 Resignation And Removal; Appointment Of Successor Trustee .56
Section 7.10 Merger, Conversion, Consolidation Or Succession To
Business Of Trustee . . . . . . . . . . . . . . . . . . . .57
Section 7.11 Persons Eligible For Appointment As Trustee . . . . . . . .58
Section 7.12 Preferential Collection of Claims Against TLGI. . . . . . .58
Section 7.13 Qualification Of Trustee; Conflicting Interests . . . . . .58
Section 7.14 Acceptance Of Appointment By Successor Trustee. . . . . . .63
Section 7.15 Appointment Of Authenticating Agent . . . . . . . . . . . .64
ARTICLE EIGHT SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . .65
Section 8.01 Satisfaction And Discharge Of Indenture . . . . . . . . . .65
Section 8.02 Indemnity for U.S. Government obligations; Repayment. . . .67
Section 8.03 Application By Trustee Of Funds Deposited For Payment Of
Securities. . . . . . . . . . . . . . . . . . . . . . . . .67
Section 8.04 Repayment to TLGI . . . . . . . . . . . . . . . . . . . . .67
Section 8.05 Reinstatement . . . . . . . . . . . . . . . . . . . . . . .68
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . .68
Section 9.01 Supplemental Indentures Without Consent Of Securityholders.68
Section 9.02 Supplemental Indentures With Consent Of Securityholders . .69
Section 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . .70
Section 9.04 Effect Of Supplemental Indenture. . . . . . . . . . . . . .70
Section 9.05 Notation on or Exchange of Securities . . . . . . . . . . .71
Section 9.06 Trustee May Sign Amendments, etc. . . . . . . . . . . . . .71
ARTICLE TEN CONCERNING THE SECURITYHOLDERS. . . . . . . . . . . . . . . . .71
Section 10.01 Evidence Of Action Taken By Securityholders. . . . . . . .71
Section 10.02 Proof Of Execution Of Instruments And Of Holding Of
Securities . . . . . . . . . . . . . . . . . . . . . . . .71
Section 10.03 Holders To Be Treated As Owners. . . . . . . . . . . . . .72
Section 10.04 Securities Owned By TLGI Deemed Not Outstanding. . . . . .72
Section 10.05 Right Of Revocation Of Action Taken. . . . . . . . . . . .72
Section 10.06 Record Date For Consents And Waiver. . . . . . . . . . . .73
ARTICLE ELEVEN MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . .73
Section 11.01 Conflict Of Any Provision Of Indenture With Trust
Indenture Act Of 1939. . . . . . . . . . . . . . . . . . .73
Section 11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . .73
Section 11.03 Communication by Holders with Other Holders. . . . . . . .74
Section 11.04 Officer's Certificates And Opinions Of Counsel;
Statements To Be Contained Therein. . . . . . . . . . . .74
Section 11.05 Payments Due On Saturdays, Sundays And Holidays. . . . . .75
Section 11.06 Rules by Xxxxxxx, Paying Agent, Registrar. . . . . . . . .75
Section 11.07 Governing Law. . . . . . . . . . . . . . . . . . . . . . .75
Section 11.08 Consent to Service of Process. . . . . . . . . . . . . . .75
Section 11.09 No Interpretation of Other Agreements. . . . . . . . . . .76
Section 11.10 Partners, Incorporators, Stockholders, Officers And
Directors Of TLGI Exempt From Individual Liability . . . .76
Section 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . .76
Section 11.12 Duplicate Originals. . . . . . . . . . . . . . . . . . . .76
Section 11.13 Severability . . . . . . . . . . . . . . . . . . . . . . .76
Section 11.14 Table of Contents, Headings, Etc.. . . . . . . . . . . . .76
Section 11.15 Provisions Of Indenture For The Sole Benefit Of
Parties And Holders Of Senior Indebtedness And
Of Securities. . . . . . . . . . . . . . . . . . . . . . .76
ARTICLE TWELVE REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . .77
Section 12.01 Applicability Of Article . . . . . . . . . . . . . . . . .77
Section 12.02 Notice Of Redemption; Partial Redemptions. . . . . . . . .77
Section 12.03 Payments Of Securities Called For Redemption . . . . . . .78
Section 12.04 Exclusion Of Certain Securities From Eligibility
For Selection For Redemption . . . . . . . . . . . . . . .79
Section 12.05 Mandatory And Optional Sinking Funds . . . . . . . . . . .79
ARTICLE THIRTEEN CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . .81
Section 13.01 Applicability Of Article . . . . . . . . . . . . . . . . .81
Section 13.02 Exercise Of Conversion Privilege . . . . . . . . . . . . .81
Section 13.03 Fractional Interests . . . . . . . . . . . . . . . . . . .82
Section 13.04 Adjustment Of Conversion Price . . . . . . . . . . . . . .82
Section 13.05 Continuation Of Conversion Privilege In Case Of Merger,
Consolidation Or Sale Of Assets. . . . . . . . . . . . . .84
Section 13.06 Notice Of Certain Events . . . . . . . . . . . . . . . . .85
Section 13.07 Taxes On Conversion. . . . . . . . . . . . . . . . . . . .86
Section 13.08 TLGI To Provide Stock. . . . . . . . . . . . . . . . . . .86
Section 13.09 Disclaimer Of Responsibility For Certain Matters . . . . .86
Section 13.10 Return Of Funds Deposited For Redemption Of Converted
Securities . . . . . . . . . . . . . . . . . . . . . . . .87
SIGNATURES
THIS INDENTURE, dated as of ____________, 1997, between The Xxxxxx
Group Inc., a body corporate organized under and governed by the laws of the
Province of British Columbia, Canada (hereinafter referred to as "TLGI"), and
Fleet National Bank, a national banking association as trustee (the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, TLGI has duly authorized the issue from time to time of
debentures, notes or other evidences of indebtedness to be issued in one or more
series (the "SECURITIES") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture;
WHEREAS, TLGI has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE, In consideration of the premises and the purchase of
the Securities by the Holders thereof, TLGI and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. DEFINITIONS.
"1996 REVOLVING CREDIT FACILITY" means the $750,000,000 Credit
Agreement, dated as of May 15, 1996, among Xxxxxx Group International, Inc., a
Delaware corporation and a wholly owned subsidiary of TLGI ("LGII"), as
borrower, TLGI, as guarantor, the lenders named therein, as the lenders,
Xxxxxxx, Xxxxx & Co., as the documentation agent and Bank of Montreal, as
issuer, swingline lender and agent.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a person (a) assumed or
created in connection with an Asset Acquisition from such person or (b) existing
at the time such person becomes a Restricted Subsidiary of any other person.
"AFFILIATE" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person.
"ASSET ACQUISITION" means (a) an Investment by TLGI or any Restricted
Subsidiary of TLGI (including, without limitation, LGII) in any other person
pursuant to which such person shall become a Restricted Subsidiary of TLGI, or
shall be merged with or into TLGI or any Restricted Subsidiary of TLGI, (b) the
acquisition by TLGI or any Restricted Subsidiary of TLGI of the assets of any
person (other than a Restricted Subsidiary of TLGI) which constitute all or
substantially all of the assets of such person or (c) the acquisition by TLGI or
any Restricted Subsidiary of TLGI of any division or line of business of any
person (other than a Restricted Subsidiary of TLGI).
-1-
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, lease or other disposition to any person other than TLGI or a
Restricted Subsidiary of TLGI (including, without limitation, LGII), in one or a
series of related transactions, of (a) any Capital Stock of any Restricted
Subsidiary of TLGI (other than in respect of directors' qualifying shares or
investments by foreign nationals mandated by applicable law) or of First Capital
Life Insurance Company of Louisiana, National Capitol Life Insurance Company,
Security Industrial Insurance Company, Security Industrial Fire Insurance
Company or any successors to such Subsidiaries; (b) all or substantially all of
the properties and assets of any division or line of business of TLGI or any
Restricted Subsidiary of TLGI; or (c) any other properties or assets of TLGI or
any Restricted Subsidiary of TLGI other than properties and assets sold in the
ordinary course of business. For the purposes of this definition, the term
"Asset Sale" shall not include (i) any sale, transfer or other disposition of
equipment, tools or other assets (including Capital Stock of any Restricted
Subsidiary of TLGI) by TLGI or any of its Restricted Subsidiaries in one or a
series of related transactions in respect of which TLGI or such Restricted
Subsidiary receives cash or property with an aggregate Fair Market Value of
$2,000,000 or less; and (ii) any sale, issuance, conveyance, transfer, lease or
other disposition of properties or assets that is governed by the provisions of
Article Four.
"ASSET SALE OFFER" shall have the meaning set forth in Section 4.12.
"ASSET SALE OFFER PRICE" shall have the meaning set forth in Section
4.12.
"ASSET SALE PURCHASE DATE" shall have the meaning set forth in Section
4.12.
"ASSOCIATED RIGHTS" means any rights to purchase shares of TLGI's
capital stock or other securities that are associated with any class of stock
constituting Common Stock for purposes hereof if at the time of the issuance
thereof such rights are not separable from any class of stock except upon the
occurrence of a contingency, whether such rights exist at the date of the
execution hereof or are thereafter issued by TLGI as a dividend on any such
class of stock or otherwise.
"ATTRIBUTABLE VALUE" means, as to any particular lease under which any
person is at the time liable other than a Capitalized Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such person under such lease during the
initial term thereof as determined in accordance with GAAP, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capitalized Lease
Obligation with a like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated. "Attributable Value" means,
as to a Capitalized Lease Obligation under which any person is at the time
liable and at any date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a balance sheet of
such person in accordance with GAAP.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section
7.15.
"BANKRUPTCY LAW" means Title 11 of the United States Code or any
similar law for the relief of debtors.
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"BOARD OF DIRECTORS" means the board of directors of LGII or TLGI, as
the case may be, or any committee of such Board duly authorized to act on its
respective behalf.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of TLGI to have been duly adopted or
consented to by the Board of Directors of TLGI and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that (a) in
the Place of Payment (or in any of the Places of Payment, if more than one) in
which amounts are payable, as specified in the form of such Security, and (b) in
the city in which the Corporate Trust Office is located, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"CANADIAN REVOLVER" means CDN $50,000,000 Operating Credit Agreement
dated August 15, 1994, as amended on July 15, 1996, among TLGI, LGII and Royal
Bank of Canada.
"CANADIAN TERM LOAN" means CDN $35,000,000 Credit Agreement dated as
of January 12, 1995 between TLGI, LGII and Dresdner Bank Canada.
"CAPITAL STOCK" means, with respect to any person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"CAPITALIZED LEASE OBLIGATION" means any obligation under a lease of
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and the amount of any such obligation at
any date shall be the capitalized amount thereof at such date, determined in
accordance with GAAP.
"CASH EQUIVALENTS" means, at any time, (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii) certificates
of deposit with a maturity of 180 days or less of any financial institution that
is not organized under the laws of the United States, any state thereof or the
District of Columbia that are rated at least A-1 by S&P or at least P-1 by
Xxxxx'x or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within 180 days from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985; and (v) notes held by TLGI or any
Restricted Subsidiary (including, without limitation, LGII) which were obtained
by TLGI or such Restricted Subsidiary in connection with Asset Sales (x) in the
ordinary course of its funeral home, cemetery or cremation businesses or (y)
which were required to be made pursuant to applicable federal or state law.
-3-
"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 TLGI or LGII, under circumstances
where the Permitted Holders (i) "beneficially own" (as so defined) a lower
percentage of the Voting Stock than such other "person" or "group" and (ii) do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of TLGI or LGII; (b)
TLGI or LGII consolidates with, or merges with or into, another person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to another person, or another person
consolidates with, or merges with or into, TLGI or LGII, in any such event
pursuant to a transaction in which the outstanding Voting Stock of TLGI or LGII
is converted into or exchanged for cash, securities or other property, other
than any such transaction where (i) the outstanding Voting Stock of TLGI or LGII
is converted into or exchanged for (1) Voting Stock (other than Redeemable
Capital Stock) of the surviving or transferee corporation or (2) cash,
securities and other property in an amount which could then be paid by TLGI or
LGII as a Restricted Payment under the provisions hereof, and (ii) immediately
after such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted Holders, is
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the happening of
an event or otherwise), directly or indirectly, of more than 50% of the total
Voting Stock of the surviving or transferee corporation; (c) at any time during
any consecutive two-year period, individuals who at the beginning of such period
constituted the Board of Directors of TLGI or LGII (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders or stockholders of TLGI or LGII was approved by a
vote of 66-2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason (including the failure of such
individuals to be elected in a proxy contest involving a solicitation of
proxies) to constitute a majority of the Board of Directors of TLGI or LGII then
in office; or (d) TLGI or LGII is liquidated or dissolved or adopts a plan of
liquidation other than a liquidation of LGII into TLGI.
"CHANGE OF CONTROL OFFER" shall have the meaning set forth in Section
4.11.
"CHANGE OF CONTROL PURCHASE DATE" shall have the meaning set forth in
Section 4.11.
"COLLATERAL AGREEMENT" means the Collateral Trust Agreement, dated as
of May 15, 1996, among Bankers Trust Company, as trustee, TLGI, LGII and various
other Subsidiaries.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution and delivery of
the Indenture such Commission is not existing and performing the applicable
duties now assigned to it, then the body or bodies performing such duties at
such time.
"COMMON STOCK" means the Common shares without par value of TLGI as
the same exists at the date of execution and delivery of this Indenture or other
capital stock of TLGI into which such common stock is reclassified or changed
from time to time.
-4-
"COMMON STOCK" means, with respect to any person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"CONSOLIDATED CASH FLOW AVAILABLE FOR FIXED CHARGES" means, with
respect to any person for any period, (A) the sum of, without duplication, the
amounts for such period, taken as a single accounting period, of
(a) Consolidated Net Income, (b) Consolidated Non-cash Charges, (c) Consolidated
Interest Expense and (d) Consolidated Income Tax Expense LESS (B) any non-cash
items increasing Consolidated Net Income for such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to any
person, the ratio of the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges of such person for the full fiscal quarter immediately
preceding the date of the transaction (the "Transaction Date") giving rise to
the need to calculate the Consolidated Fixed Charge Coverage Ratio (such full
fiscal quarter period being referred to herein as the "Prior Quarter") to the
aggregate amount of Consolidated Fixed Charges of such person for the Prior
Quarter. In addition to and without limitation of the foregoing, for purposes
of this definition, "Consolidated Cash Flow Available for Fixed Charges" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a PRO
FORMA basis for the period of such calculation to, without duplication, (a) the
incurrence of any Indebtedness of such person or any of its Restricted
Subsidiaries (and the application of the net proceeds thereof) during the period
commencing on the first day of the Prior Quarter to and including the
Transaction Date (the "REFERENCE PERIOD"), including, without limitation, the
incurrence of the Indebtedness giving rise to the need to make such calculation
(and the application of the net proceeds thereof), as if such incurrence (and
application) occurred on the first day of the Reference Period, and (b) any
Material Asset Sales or Material Asset Acquisitions (including, without
limitation, any Material Asset Acquisition giving rise to the need to make such
calculation as a result of such person or one of its Restricted Subsidiaries
(including any person who becomes a Restricted Subsidiary as a result of the
Material Asset Acquisition) incurring, assuming or otherwise being liable for
Acquired Indebtedness) occurring during the Reference Period, as if such
Material Asset Sale or Material Asset Acquisition occurred on the first day of
the Reference Period. Furthermore, in calculating "Consolidated Fixed Charges"
for purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio," (i) interest on outstanding
Indebtedness determined on a fluctuating basis as at the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate PER ANNUM equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (ii) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Reference Period. If such person or any of its Restricted Subsidiaries directly
or indirectly guarantees Indebtedness of a third person, the above clause shall
give effect to the incurrence of such guaranteed Indebtedness as if such person
or such Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness. For purposes of this calculation, a Material Asset
Acquisition is an Asset Acquisition which is deemed by such person to be
material for such purposes or which has a purchase price of $30,000,000 or more
and a Material Asset Sale is one or more Asset Sales which relate to assets with
an aggregate value of more than $30,000,000.
"CONSOLIDATED FIXED CHARGES" means, with respect to any person for any
period, the sum of, without duplication, the amounts for such period of
(i) Consolidated Interest Expense and (ii) the product of (a) the aggregate
amount of dividends and other distributions paid or accrued during such period
in respect of Preferred Stock and Redeemable Capital Stock of such person and
its Restricted Subsidiaries
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on a consolidated basis and (b) a multiplier, the numerator of which is one and
the denominator of which is one minus the then current combined federal, state
and local statutory tax rate of such person, expressed as a decimal; PROVIDED,
HOWEVER, that the multiplier in clause (b) shall be one if such dividend or
other distribution is fully tax deductible.
"CONSOLIDATED INCOME TAX EXPENSE" means, with respect to any person
for any period, the provision for federal, state, local and foreign income taxes
of such person and its Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any person for
any period, without duplication, the sum of (i) the interest expense of such
person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation,
(a) any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations, (c) the interest portion of any deferred payment
obligation, (d) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financings and (e) all
accrued interest and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any person, for any
period, the consolidated net income (or loss) of such person and its Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses, (ii) the portion of net
income (but not losses) of such person and its Restricted Subsidiaries allocable
to minority interests in unconsolidated persons to the extent that cash
dividends or distributions have not actually been received by such person or
one of its Restricted Subsidiaries, (iii) net income (or loss) of any person
combined with such person or one of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(iv) any gain or loss realized upon the termination of any employee pension
benefit plan, on an after-tax basis, (v) gains or losses in respect of any Asset
Sales by such person or one of its Restricted Subsidiaries, and (vi) the net
income of any Restricted Subsidiary of such person to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders.
"CONSOLIDATED NET TANGIBLE ASSETS" of TLGI as at any date means the
total amount of assets of TLGI and its Restricted Subsidiaries, less applicable
reserves, on a consolidated basis as of the end of the fiscal quarter
immediately preceding such date, as determined in accordance with GAAP, less:
(i) Intangible Assets and (ii) appropriate adjustments on account of minority
interests of other persons holding equity investments in Restricted
Subsidiaries, in the case of each of clauses (i) and (ii) above as reflected on
the consolidated balance sheet of TLGI and its Restricted Subsidiaries as at the
end of the fiscal quarter immediately preceding such date.
"CONSOLIDATED NET WORTH" means, with respect to any person at any
date, the consolidated stockholders' equity of such person less the amount of
such stockholders' equity attributable to Redeemable Capital Stock of such
person and its Restricted Subsidiaries, as determined in accordance with GAAP.
"CONSOLIDATION" means, with respect to any person, the consolidation
of the accounts of such person and each of its Subsidiaries if and to the extent
the accounts of such person and each of its
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Restricted Subsidiaries would normally be consolidated with those of such
person, all in accordance with GAAP. The term "consolidated" shall have a
meaning correlative to the foregoing.
"CONTROL" means, with respect to any specified person, the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"CONVERSION AGENT" shall have the meaning set forth in Section 4.02.
"CONVERSION PRICE" shall have the meaning set forth in Section 13.04.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in Hartford, Connecticut, except that with respect
to the presentation of Securities for payment, for conversion or for
registration of transfer and exchange, such term shall also mean the office of
the Trustee's agent in the Borough of Manhattan, the City and State of New York,
at which at any particular time its corporate agency business shall be
conducted.
"CREDIT AGREEMENTS" means the 1996 Revolving Credit Facility, the
Canadian Revolver, the MEIP Facility and the Canadian Term Loan; in each case as
any such instrument may be amended, supplemented or otherwise modified from time
to time, and any successor or replacement facility.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
TLGI 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.
"DATE OF CONVERSION" shall have the meaning set forth in Section
13.02.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by TLGI pursuant to Section 2.01 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and, thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"EVENT OF DEFAULT" has the meaning set forth under Section 6.01
herein.
"EXCESS PROCEEDS" shall have the meaning set forth in Section 4.12.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FAIR MARKET VALUE" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of
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which is under pressure or compulsion to complete the transaction; PROVIDED,
HOWEVER, that with respect to any transaction which involves an asset or assets
in excess of $5,000,000, such determination shall be evidenced by a Board
Resolution of TLGI delivered to the Trustee.
"GAAP" means accounting principles generally accepted in Canada
consistently applied until such time as TLGI shall prepare their respective
books of record in accordance with accounting principles generally accepted in
the United States ("U.S. GAAP") at which time and all times thereafter GAAP
shall mean U.S. GAAP consistently applied.
"GLOBAL SECURITY" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance with
Section 2.01 and bearing the legend prescribed in Section 2.04.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"HOLDER", "NOTEHOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or
other similar terms mean, in the case of any Security, the Person in whose name
such Security is registered in the security register kept by TLGI for that
purpose in accordance with the terms hereof.
"INDEBTEDNESS" means, with respect to any person, without duplication,
(a) all liabilities of such person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business and
which are not overdue by more than 90 days, but excluding, without limitation,
all obligations, contingent or otherwise, of such person in connection with any
undrawn letters of credit, banker's acceptance or other similar credit
transaction, (b) all obligations of such person evidenced by bonds, notes,
debentures or other similar instruments, (c) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade accounts payable
arising in the ordinary course of business, (d) all Capitalized Lease
Obligations of such person, (e) all Indebtedness referred to in the preceding
clauses of other persons and all dividends of other persons, the payment of
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (f) all guarantees of Indebtedness referred to in this
definition by such person, (g) all Redeemable Capital Stock of such person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all obligations under or in respect of
Currency Agreements and Interest Rate Protection Obligations of such person,
(i) any Preferred Stock of any Restricted Subsidiary of such person valued at
the sum of (without duplication) (A) the liquidation preference thereof, (B) any
mandatory redemption payment obligations in respect thereof and (C) accrued
dividends thereon, and (j) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (a) through (i) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
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repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
the provisions hereof, and if such price is based upon, or measured by, the fair
market value of such Redeemable Capital Stock, such fair market value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock. For purposes of this definition, the term
"Indebtedness" shall not include (i) Indebtedness of a Wholly-Owned Subsidiary
owed to and held by TLGI or another Wholly-Owned Subsidiary, in each case which
is not subordinate in right of payment to any Indebtedness of such Subsidiary,
except that (a) any transfer of such Indebtedness by TLGI or a Wholly-Owned
Subsidiary (other than to TLGI or to a Wholly-Owned Subsidiary) and (b) the
sale, transfer or other disposition by TLGI, or any Restricted Subsidiary of
TLGI of Capital Stock of a Wholly-Owned Subsidiary which is owed Indebtedness of
another Wholly-Owned Subsidiary such that it ceases to be a Wholly-Owned
Subsidiary of TLGI shall, in each case, be an incurrence of Indebtedness by such
Restricted Subsidiary subject to the other provisions hereof; and (ii)
Indebtedness of TLGI or LGII owed to and held by a Wholly-Owned Subsidiary of
TLGI which is unsecured and subordinate in right of payment to the payment and
performance of TLGI's or LGII's obligations under the provisions hereof and the
Securities except that (a) any transfer of such Indebtedness by a Wholly-Owned
Subsidiary of TLGI (other than to another Wholly-Owned Subsidiary of TLGI) and
(b) the sale, transfer or other disposition by TLGI or any Restricted Subsidiary
of TLGI of Capital Stock of a Wholly-Owned Subsidiary which holds Indebtedness
of TLGI such that it ceases to be a Wholly-Owned Subsidiary shall, in each case,
be an incurrence of Indebtedness by XXXX, as the case may be, subject to the
other provisions hereof.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"INDEPENDENT FINANCIAL ADVISOR" means a firm (i) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in TLGI or LGII and (ii) which, in the judgment of
the Board of Directors of TLGI, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"INTEREST" means, with respect to any interest bearing Security, the
amount of all interest accruing on such Security, and, when used with respect to
non-interest bearing Securities (including, without limitation, any Original
Issue Discount Security which by its terms bears interest only after maturity or
upon default in any other payment due on such Security), interest payable on or
after maturity (whether at stated maturity, upon acceleration or redemption or
otherwise) or after the date, if any, on which TLGI becomes obligated to acquire
a Security, whether upon conversion, by purchase or otherwise, in each case,
including all interest accruing subsequent to the occurrence of any events
specified in Sections 6.01(f) and (g) or which would have accrued but for any
such event, whether or not such claims are allowable under applicable law.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Securities, 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
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the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"INTEREST RATE PROTECTION OBLIGATIONS" means the obligations of any
person under any Interest Rate Protection Agreement.
"INVESTMENT" means, with respect to any person, any direct or indirect
loan or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any other person. "Investments" shall
exclude extensions of trade credit by TLGI and its Restricted Subsidiaries
(including, without limitation, LGII) in the ordinary course of business in
accordance with normal trade practices of TLGI or such Restricted Subsidiary, as
the case may be.
"ISSUE DATE" means the issue date specified in the securities of each
series except as otherwise provided in Section 2.01.
"ISSUER ORDER" means a written statement, request or order of TLGI
which is signed in its name by the chairman of the Board of Directors, the
president, any vice president or the treasurer of TLGI.
"LAST SALE PRICE" shall have the meaning set forth in Section 13.03.
"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 Security, the date on which
any principal of such Security 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 March 20, 1996.
"MEIP FACILITY" means the 1994 Management Equity Investment Plan
("MEIP") Credit Agreement, dated as of June 14, 1994, as amended and restated as
of May 15, 1996, by and between Xxxxxx Management Investment Corporation, in its
capacity as agent for LGII, TLGI, the banks listed therein and Wachovia Bank of
Georgia, N.A., as agent.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to TLGI or any Restricted Subsidiary of TLGI (including,
without limitation, LGII) net of (i) brokerage commissions and other fees and
expenses (including, without limitation, fees and expenses of legal counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all taxes
payable as a result of such Asset Sale, (iii) amounts required to be paid to any
person (other than TLGI or any Restricted Subsidiary of TLGI) owning a
beneficial interest in the assets subject to the Asset Sale and (iv) appropriate
amounts to be provided by TLGI or any Restricted Subsidiary of TLGI, as the case
may
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be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by TLGI or any Restricted
Subsidiary of TLGI, 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.
"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 TLGI.
"OFFICER'S CERTIFICATE", when used with respect to TLGI, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of TLGI. Each such certificate shall include the statements provided for in
Section 11.04, if and to the extent required by the provisions of such Section
11.04. One of the officers signing any Officer's Certificate given pursuant to
Section 3.03 shall be the principal executive, financial or accounting officer
of TLGI.
"OPINION OF COUNSEL" means an opinion in writing signed by the general
counsel of TLGI or by such other legal counsel who may be an employee of or
counsel to TLGI and who shall be satisfactory to the Trustee. Each such opinion
shall include the statements provided for in Section 11.04, if and to the extent
required by the provisions of such Section 11.04.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01
"OUTSTANDING" (except as otherwise provided in Section 7.13), when
used with reference to Securities, shall, subject to the provisions of Section
10.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except: (a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation; (b) Securities (other than Securities of any series as to which
the provisions of Article Eight hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 8.01) in the necessary amount shall have
been deposited in trust with the Trustee or with any Paying Agent (other than
TLGI) or shall have been set aside, segregated and held in trust by TLGI for the
Holders of such Securities (if TLGI shall act as its own Paying Agent), provided
that, if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; (c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.11 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is held
by a Person in whose
-11-
hands such Security is a legal, valid and binding obligation of TLGI); and (d)
Securities converted into Common Stock pursuant hereto prior to the applicable
record date and, for purposes of selection for redemption, Securities not deemed
Outstanding pursuant to Section 12.02; provided, however, that Securities
surrendered for conversion during the period between the close of business on
any record date for such Security and the opening of business on the related
interest payment date (or on the related interest payment date) shall be
considered Outstanding for purposes of payment of interest on such related
interest payment date. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or all series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that would be due and payable as of the date of such
determination (as certified by TLGI to the Trustee) upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01.
"PARI PASSU INDEBTEDNESS" means Indebtedness of LGII or TLGI which
ranks PARI PASSU in right of payment with the Securities.
"PAYING AGENT" has the meaning set forth in Section 4.02, except that,
for the purposes of Section 4.11 and Section 4.12 and Articles Eight and Twelve,
the Paying Agent shall not be TLGI or a Subsidiary of TLGI or any of their
respective Affiliates.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption and conversion provisions, if any, with
respect thereto, are to be determined by TLGI or its agents upon the issuance of
such Securities.
"PERMITTED HOLDERS" mean (i) Xxxxxxx Xxxxxx and Xxxx Xxxxxx, taken
together, and (ii) in the case of LGII, TLGI.
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(a) the Securities;
(b) Indebtedness of TLGI and its Restricted Subsidiaries (including,
without limitation, LGII) outstanding on the Issue Date (other than Indebtedness
under the Credit Agreements;
(c) Indebtedness of TLGI or LGII, as the case may be, under the
Credit Agreements in an aggregate principal amount at any one time outstanding
not to exceed the aggregate of the maximum credit limits of the Credit
Agreements as of the Issue Date, less the Net Proceeds of any Asset Sale that
are applied to repay, and permanently reduce the commitments under, the Credit
Agreements (as required by the terms thereof);
(d) (i) Interest Rate Protection Obligations of TLGI covering
Indebtedness of TLGI and its Restricted Subsidiaries (including, without
limitation, LGII); (ii) Interest Rate Protection Obligations of any Restricted
Subsidiary of TLGI covering Indebtedness of such Restricted Subsidiary;
PROVIDED, HOWEVER, that, in the case of either clause (i) or (ii), (x) any
Indebtedness to which any such Interest Rate Protection Obligations relate bears
interest at fluctuating interest rates and is otherwise permitted to be incurred
under this covenant and (y) the notional principal amount of any such Interest
Rate Protection Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations relate;
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(e) Indebtedness under Currency Agreements; PROVIDED, HOWEVER, that
in the case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of TLGI and its Restricted
Subsidiaries (including, without limitation, LGII) outstanding other than as a
result of fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(f) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business; PROVIDED, HOWEVER, that such Indebtedness is
extinguished within two business days of incurrence;
(g) Indebtedness incurred in respect of performance bonds or letters
of credit in lieu thereof provided in the ordinary course of business;
(h) Indebtedness of TLGI and its Restricted Subsidiaries (including,
without limitation, LGII) represented by letters of credit for the account of
TLGI and its Restricted Subsidiaries in order to provide security for workers'
compensation claims, payment obligations in connection with self-insurance or
similar requirements in the ordinary course of business;
(i) Indebtedness of TLGI and its Restricted Subsidiaries (including,
without limitation, LGII) in addition to that described in clauses (a) through
(h) above, in an aggregate principal amount outstanding at any time not
exceeding $5,000,000; and
(j) (i) Indebtedness of TLGI the proceeds of which are used solely to
refinance (whether by amendment, renewal, extension or refunding) Indebtedness
of TLGI and its Restricted Subsidiaries (including, without limitation, LGII)
and (ii) Indebtedness of any Restricted Subsidiary of TLGI the proceeds of which
are used solely to refinance (whether by amendment, renewal, extension or
refunding) Indebtedness of such Restricted Subsidiary, in each case other than
the Indebtedness refinanced, redeemed or retired on the Issue Date or
Indebtedness incurred under clause (c), (d), (e), (f), (g), (h), or (i) of this
covenant; PROVIDED, HOWEVER, that (x) the principal amount of Indebtedness
incurred pursuant to this clause (j) (or, if such Indebtedness provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof, the original issue price of
such Indebtedness) shall not exceed the sum of the principal amount of
Indebtedness so refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of such Indebtedness
or the amount of any premium reasonably determined by the Board of Directors of
TLGI as necessary to accomplish such refinancing by means of a tender offer or
privately negotiated purchase, plus the amount of expenses in connection
therewith, (y) in the case of Indebtedness incurred by TLGI pursuant to this
clause (j) to refinance Pari Passu Indebtedness, such Indebtedness constitutes
Pari Passu Indebtedness.
"PERMITTED INVESTMENTS" means any of the following: (i) Investments
in any Wholly-Owned Subsidiary of TLGI (including (a) LGII and (b) any person
that pursuant to such Investment becomes a Wholly-Owned Subsidiary of TLGI) and
any person that is merged or consolidated with or into, or transfers or conveys
all or substantially all of its assets to, TLGI or any Wholly-Owned Subsidiary
of TLGI at the time such Investment is made; (ii) Investments in Cash
Equivalents; (iii) Investments in Currency Agreements on commercially reasonable
terms entered into by TLGI or any of its Restricted Subsidiaries in the ordinary
course of business in connection with the operations of the business of TLGI or
its Restricted Subsidiaries to hedge against fluctuations in foreign exchange
rates; (iv) loans or advances to officers, employees or consultants of TLGI and
its Restricted Subsidiaries for travel and moving expenses
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in the ordinary course of business for bona fide business purposes of TLGI and
its Restricted Subsidiaries; (v) other loans or advances to officers, employees
or consultants of TLGI and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes of TLGI and its Restricted Subsidiaries
not in excess of $10,000,000 in the aggregate at any one time outstanding;
(vi) Investments in evidences of Indebtedness, securities or other property
received from another person by TLGI 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 TLGI or any of
its Restricted Subsidiaries, or for other liabilities or obligations of such
other person to TLGI or any of its Restricted Subsidiaries that were created, in
accordance with the terms of this Indenture; (vii) Investments in Interest Rate
Protection Agreements on commercially reasonable terms entered into by TLGI or
any of its Restricted Subsidiaries in the ordinary course of business in
connection with the operations of TLGI and its Restricted Subsidiaries to hedge
against fluctuations in interest rates; and (viii) Investments of funds received
by TLGI or its Restricted Subsidiaries (including, without limitation, LGII) in
the ordinary course of business, which funds are required to be held in trust
for the benefit of others by TLGI or such Restricted Subsidiary, as the case may
be, and which funds do not constitute assets or liabilities of TLGI or such
Restricted Subsidiary; (ix) Investments not in excess of $50,000,000 in the
aggregate in other Unrestricted Subsidiaries which are engaged in the insurance
business; and (x) Investments not in excess of $50,000,000 in persons (other
than Wholly-Owned Subsidiaries) engaged in businesses incidental to the funeral
home, cemetery and cremation businesses of TLGI and its Restricted Subsidiaries.
"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 TLGI or any of its Restricted Subsidiaries
(including, without limitation, LGII) shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made in respect thereof;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, governmental
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(d) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired;
(e) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of TLGI or any of its
Restricted Subsidiaries (including, without limitation, LGII);
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(f) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;
(g) any Lien existing on any asset of any corporation at the time
such corporation becomes a Restricted Subsidiary and not created in
contemplation of such event;
(h) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset; PROVIDED, that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion
thereof;
(i) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into TLGI or a Restricted
Subsidiary and not created in contemplation of such event;
(j) any Lien existing on any asset prior to the acquisition thereof
by TLGI 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; and
(l) any extension, renewal or replacement of any Lien permitted by
the preceding clauses (g), (h), (i) or (j) hereof in respect of the same
property or assets theretofore subject to such Lien in connection with the
extension, renewal or refunding of the Indebtedness secured thereby; PROVIDED
that (1) such Lien shall attach solely to the same property or assets and (2)
such extension, renewal or refunding of such Indebtedness shall be without
increase in the principal remaining unpaid as at the date of such extension,
renewal or refunding.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
charitable foundation, unincorporated organization, government or any agency or
political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.01.
"PREDECESSOR NOTES" means, with respect to any particular Security,
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition,
any Securities authenticated and delivered under Section 2.04 hereof in exchange
for mutilated Notes or in lieu of lost, destroyed or stolen Securities, shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Securities.
"PREFERRED SECURITIES" means, with respect to a Special Finance
Subsidiary, any securities of such Subsidiary treated for accounting purposes as
an equity security that has preferential rights to any other security of such
person with respect to dividends or redemptions or upon liquidation.
"PREFERRED STOCK" means, with respect to any person, any Capital Stock
of such person that has preferential rights to any other Capital Stock of such
person with respect to dividends or redemptions or upon liquidation and any
Preferred Securities.
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"PRINCIPAL" or "PRINCIPAL AMOUNT" of a debt security, including any
Security, means the amount (including, without limitation, if and to the extent
applicable, any premium and, in the case of an Original Issue Discount Security,
any accrued original issue discount, but excluding interest) that is payable
with respect to such debt security as of any date and for any purpose
(including, without limitation, in connection with any sinking fund, upon any
redemption at the option of TLGI, upon any purchase or exchange at the option of
TLGI or the holder of such debt security and upon any acceleration of the
maturity of such debt security) plus, when appropriate, the premium, if any, on
the security and any interest on overdue principal.
"RECORD DATE" shall have the meaning set forth in Section 2.07.
"REDEEMABLE CAPITAL STOCK" means any shares of any class or series of
Capital Stock that, either by the terms thereof, by the terms of any security
into which it is convertible or exchangeable or by contract or otherwise, is or
upon the happening of an event or passage of time would be, required to be
redeemed prior to the Stated Maturity with respect to the principal of any
Security or is redeemable at the option of the holder thereof at any time prior
to any such Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to any such Stated Maturity.
"REGISTRAR" has the meaning set forth in Section 4.02.
"RELATED OBLIGOR" has the meaning set forth in Section 4.08.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any officer assigned by the Trustee to administer its corporate trust matters.
"RESTRICTED PAYMENTS" has the meaning set forth in Section 4.08.
"RESTRICTED SUBSIDIARY" means any Subsidiary of TLGI other than an
Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"SALE-LEASEBACK TRANSACTION" of any person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such person of any property or asset of such person which has
been or is being sold or transferred by such person after the acquisition
thereof or the completion of construction or commencement of operation thereof
to such lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last payment of
rent or any other amount due under such arrangement prior to the first date on
which such arrangement may be terminated by the lessee without payment of a
penalty.
"S&P" means Standard & Poor's Corporation, and its successors.
"SECURITY" or "SECURITIES" (except as otherwise provided in Section
7.13) has the meaning stated in the first recital of this Indenture or, as the
case may be, securities that have been authenticated and delivered pursuant to
this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
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"SELLER FINANCING INDEBTEDNESS" means a purchase money Indebtedness
issued to the seller of a business or other assets for, and not in excess of,
the purchase price thereof.
"SENIOR DEBT" means Indebtedness which is not (i) Indebtedness of TLGI
to any Subsidiary, and (ii) Indebtedness of TLGI which by its terms is
subordinate or junior in any respect to any other Indebtedness or other
obligation of TLGI.
"SIGNIFICANT SUBSIDIARY" shall mean a Restricted Subsidiary which is a
"Significant Subsidiary" as defined in Rule 1.02(v) of Regulation S-X under the
Securities Act.
"SPECIAL FINANCE SUBSIDIARY" means a Restricted Subsidiary whose sole
assets are debt obligations of LGII or TLGI and whose sole liabilities are
Preferred Securities the proceeds from the sale of which are or have been
advanced to LGII or TLGI.
"STATED MATURITY" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"SUBSIDIARY" means, with respect to any person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such person, by one or more Subsidiaries of such person or by such person and
one or more Subsidiaries thereof and (ii) any other person (other than a
corporation), including, without limitation, a joint venture, in which such
person, one or more Subsidiaries thereof or such person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other person performing
similar functions). For purposes of this definition, any directors' qualifying
shares or investments by foreign nationals mandated by applicable law shall be
disregarded in determining the ownership of a Subsidiary.
"SURVIVING ENTITY" shall have the meaning set forth in Section 5.01.
"TRADING DAY" shall have the meaning set forth in Section 13.03.
"TRUST INDENTURE ACT OF 1939" or "TIA" (except as otherwise provided
in Sections 9.01, 9.02 and 13.5) means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this Indenture is originally executed.
"TLGI" shall mean The Xxxxxx Group Inc., and shall include any
successor replacing such TLGI pursuant to the provisions hereof, and thereafter
means such successor.
"TRUST OFFICER" means any officer in the Corporate Trust
Administration of the Trustee or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Seven, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and, if at any time there is more than one such
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Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 8.01(B).
"UNRESTRICTED SUBSIDIARY" means (i) First Capital Life Insurance
Company of Louisiana, National Capital Life Insurance Company, Security
Industrial Insurance Company, Security Industrial Fire Insurance Company or any
successors to such Subsidiaries or (ii) a Subsidiary of TLGI declared by the
Board of Directors of TLGI to be an Unrestricted Subsidiary; PROVIDED, that no
such Subsidiary shall be declared to be an Unrestricted Subsidiary unless (x)
none of its properties or assets were owned by TLGI or any of its Subsidiaries
prior to the Issue Date, other than any such assets as are transferred to such
Unrestricted Subsidiary in accordance with the covenant contained in Section
4.08, (y) its properties and assets, to the extent that they secure
Indebtedness, secure only Non-Recourse Indebtedness and (z) it has no
Indebtedness other than Non-Recourse Indebtedness. As used above, "Non-Recourse
Indebtedness" means Indebtedness as to which (i) neither TLGI nor any of its
Subsidiaries (other than the relevant Unrestricted Subsidiary or another
Unrestricted Subsidiary) (1) provides credit support (including any undertaking,
agreement or instrument which would constitute Indebtedness), (2) guarantees or
is otherwise directly or indirectly liable or (3) constitutes the lender (in
each case, other than pursuant to and in compliance with the covenant contained
in Section 4.08 and (ii) no default with respect to such Indebtedness (including
any rights which the holders thereof may have to take enforcement action against
the relevant Unrestricted Subsidiary or its assets) would permit (upon notice,
lapse of time or both) any holder of any other Indebtedness of TLGI or its
Subsidiaries (other than Unrestricted Subsidiaries) to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity.
"VOTING STOCK" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any person (irrespective of whether or not, at the time, Capital
Stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"WHOLLY-OWNED SUBSIDIARY" means (i) any Restricted Subsidiary of TLGI
of which 100% of the outstanding Capital Stock is owned by TLGI or one or more
Wholly-Owned Subsidiaries of TLGI or by TLGI and one or more Wholly-Owned
Subsidiaries of TLGI, including LGII, or (ii) any Subsidiary, at least 66 2/3%
of the outstanding voting securities of which, and all of the outstanding shares
entitled to receive dividends or other distributions of which, shall at the time
be owned or controlled, directly or indirectly, by TLGI or one or more Wholly-
Owned Subsidiaries of TLGI or by TLGI and one or more Wholly-Owned Subsidiaries
of TLGI, including LGII. For purposes of this definition, any directors'
qualifying shares or investments by foreign nationals mandated by applicable law
shall be disregarded in determining the ownership of a Subsidiary.
"YIELD TO MATURITY" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
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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 Securities;
"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 TLGI or any other obligor
on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
Section 1.03. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) words in the singular include the plural, and words in the plural
include the singular.
(b) "or" is not exclusive;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(e) all references to "$" or "dollars" shall refer to the lawful
currency of the United States of America.
ARTICLE TWO
THE SECURITIES
Section 2.01. AMOUNT OF SECURITIES; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture may not exceed $500,000,000 at any time, except
to the extent permitted by Section 2.11. The Securities may be issued in one or
more series and the Securities of each such series shall rank equally and PARI
PASSU as to the right of payment of principal and interest, if any, with the
Securities of each other series, and with all other Senior Debt of TLGI. There
shall be established in or pursuant to one or more Board Resolutions (and, to
the extent
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established pursuant to rather than set forth in a Board Resolution, in an
Officer's Certificate detailing such establishment) or established in one or
more indentures supplemental hereto, prior to the initial issuance of Securities
of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) whether the Securities will be convertible into Common Stock or
Preferred Stock (or cash in lieu thereof) and, if so, the terms and
conditions upon which such conversion will be effected including the
initial Conversion Price and any adjustments thereto in addition to or
different from those set forth in Section 13.04, the conversion period and
other provisions in addition to or in lieu of those set forth herein;
(3) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.10, 2.12, 2.13, 9.05, 12.03 or 13.02);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record
shall be taken for the determination of Holders to whom any such interest
is payable or the method by which such rate or rates or date or dates shall
be determined or both;
(6) the place or places where and the manner in which the principal
of and any interest on Securities of the series shall be payable and the
office or agency for the Securities of the series maintained by TLGI
pursuant to Section 4.02 (if other than as provided in Section 4.02);
(7) any provisions relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrue, if any, and the date or dates from or to which or
period or periods during which such original issue discount shall accrue at
such rate or rates);
(8) the right, if any, of TLGI to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period
or periods within which, the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or method
of payment therefor if other than in cash and any terms and conditions upon
which and the manner in which (if different from the provisions of Article
Twelve) Securities of the series may be so redeemed, purchased or repaid,
in whole or in part, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of TLGI to redeem, purchase or repay
Securities of the series, in whole or in part, pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or price
(or the method by which such price or prices shall be determined or both)
at which, the form or method of payment therefor if other than in cash and
any terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
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(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(12) whether the Securities of the series will be issuable as Global
Securities;
(13) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(14) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars, conversion agents or any other agents with
respect to the Securities of such series;
(15) any deleted, modified or additional events of default or remedies
or any additional covenants with respect to the Securities of such series;
(16) whether the provisions of Section 8.01(C) will be applicable to
Securities of such series;
(17) if the amounts of payment of principal of and interest on the
Securities of such series are to be determined with reference to an index,
the manner in which such amounts shall be determined;
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(19) whether the Securities of the series will be secured.
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or pursuant
to the Board Resolution or Officer's Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided or pursuant to such
Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officer's Certificate referred to above
with respect to Securities any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of this Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officer's Certificate were
set forth herein in full.
Section 2.02 FORMS GENERALLY. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officer's Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced
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thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities shall be printed, 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 Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 2.03. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
[Trustee], as Trustee
By:
----------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
certificate of authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
[Trustee], as Trustee
By:
----------------------------------
as Authenticating Agent
By:
----------------------------------
Authorized Signatory
Section 2.04. AUTHENTICATION AND DELIVERY OF SECURITIES. TLGI may
deliver Securities of any series executed by TLGI to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.04, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, TLGI (contained in TLGI Order referred to
below in this Section 2.04) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral instructions from TLGI or its duly authorized agent, which instructions
shall be promptly confirmed in writing. In authenticating the Securities of
such series and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive (in
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the case of subparagraphs (2), (3) and (4) below only at or before the time of
the first request of TLGI to the Trustee to authenticate Securities of such
series) and (subject to Section 7.01) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities of such series are not to be
delivered to TLGI, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by
TLGI to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and
deliver Securities of such series for original issue from time to time, in
an aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to time
by an Issuer Order, (c) the maturity date or dates, original issue date or
dates, interest rate or rates, if any, and any other terms of Securities of
such series shall be determined by an Issuer Order or pursuant to such
procedures, (d) if provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to telecommunication or
electronic instructions from TLGI or its duly authorized agent or agents,
and (e) after the original issuance of the first Security of such series to
be issued, any separate request by TLGI that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by TLGI that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities;
(2) the Board Resolutions, Officer's Certificate or executed
supplemental indenture referred to in Sections 2.01 and 2.02 by or pursuant
to which the form or forms and terms of the Securities of such series were
established;
(3) an Officer's Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.01 and 2.02 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of TLGI, either an Opinion of Counsel, or a letter
from legal counsel addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(A) the form or forms of the Securities of such series have been
duly authorized and established in conformity with the provisions of
this Indenture;
(B) in the case of an underwritten offering, the Securities of
such series have been duly authorized and established in conformity
with the provisions of this Indenture, and, in the case of an offering
that is not underwritten, certain terms of the Securities of such
series have been established pursuant to a Board Resolution, an
Officer's Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by TLGI and
will have been established in conformity with the provisions of this
Indenture;
(C) when the Securities of such series have been executed by
XXXX and authenticated by the Trustee in accordance with the
provisions of this Indenture and
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delivered against payment therefor by the purchasers thereof, they
will be valid and legally binding obligations of TLGI, enforceable in
accordance with their respective terms, and will be entitled to the
benefits of this Indenture; and
(D) the execution and delivery by TLGI of, and the performance
by TLGI of its obligations under, the Securities of such series will
not contravene any provision of applicable law or the articles of
incorporation or by-laws of TLGI or any agreement or other instrument
binding upon TLGI or any of its Subsidiaries that is material to TLGI
and its Subsidiaries, considered as one enterprise, or, to such
counsel's knowledge after the inquiry indicated therein, any judgment,
order or decree of any governmental agency or any court having
jurisdiction over TLGI or any Subsidiary, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by TLGI of its obligations under the Securities, except
such as are specified and have been obtained and such as may be
required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of New
York and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes that both such counsel and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems
proper, upon certificates of officers of TLGI and its Subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate and
delivery any Securities of any series under this Section 2.04 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by TLGI or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under the Securities, this Indenture
or otherwise.
If TLGI shall establish pursuant to Section 2.01 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
TLGI shall execute and the Trustee shall, in accordance with this Section 2.04
and Issuer Order with respect to such series, authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of all of the Securities of such
series to be issued in the form of Global Securities and not yet cancelled, (ii)
shall be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions, and
(iv) shall bear a legend substantially to the following effect:
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"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
Each Depositary designated pursuant to Section 2.01 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
Section 2.05. EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of TLGI by two Officers, under its corporate seal which may,
but need not, be attested by its secretary or one of its assistant secretaries.
Such signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of TLGI may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced in the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case of any officer of TLGI who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by TLGI, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Security had not ceased to be such officer of TLGI; and
any Security may be signed on behalf of TLGI by such persons as, at the actual
date of the execution of such Security, shall be the proper officers of TLGI,
although at the date of the execution and delivery of this Indenture any such
person was not such an officer.
Section 2.06. CERTIFICATE OF AUTHENTICATION. Only such Securities
as shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificates by the Trustee, or its Authenticating Agent, upon
any Security executed by TLGI shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture. Each reference in this
Indenture to authentication by the Trustee includes authentication by an agent
appointed pursuant to Section 7.15.
Section 2.07 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.01 or, with respect
to the Securities of any series, if not so established, in denominations of
$1,000 and any integral multiple thereof. The Securities of each series
shall be numbered, lettered or other distinguished in such manner or in
accordance with such plan as the officers of TLGI executing the same may
determine with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.01.
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The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
TLGI shall default in the payment of the interest due on such interest payment
date for such series, in which case such defaulted interest shall be paid to the
Persons in whose names Outstanding Securities for such series are registered (a)
at the close of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of TLGI to the Holders of
Securities not less than 15 days preceding such subsequent record date or (b) as
determined by such other procedure as is mutually acceptable to TLGI and the
Trustee. The term "RECORD DATE" as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the Securities of
series shall mean the date specified as such in the terms of the Securities of
such series established as contemplated by Section 2.01, or, if no such date is
so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day of
such calendar month, whether or not such record date is a Business Day.
Section 2.08. REGISTRAR.
TLGI will keep at the office of each Registrar for each series of
Securities a register or registers in which, subject to such reasonable
regulations as it may prescribe, it will provide for the registration of
Securities of each series and the registration of transfer of Securities of such
series. Each such register shall be in written form in the English language or
in any other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open for
inspection and available for copying by the Trustee. Each Registrar for each
series of Securities shall keep a register of such series of Securities and of
their transfer and exchange. TLGI may have one or more co-Registrars.
TLGI shall enter into an appropriate agency agreement with any
Registrar 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. TLGI shall notify the Trustee of the name and address
of any such Registrar. If TLGI fails to maintain a Registrar, 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.
Section 2.09. PROVISION AS TO PAYING AGENT.
TLGI may have one or additional paying agents. The term "Paying
Agent" includes any additional paying agent. Except as otherwise expressly
provided in this Indenture, TLGI or any Affiliate thereof may act as Paying
Agent.
If TLGI shall appoint a Paying Agent other than the Trustee, it will
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section 2.09,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by TLGI or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities or
the Trustee; and
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(2) that it will give the Trustee notice of any failure by TLGI (or
by the other obligor on the Securities) to make any payment of the
principal of or interest, if any, on the Securities when the same shall be
due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The agreement shall implement the provisions of this Indenture that relate to
such Paying Agent.
TLGI shall notify the Trustee of the name and address of any such
Paying Agent. If TLGI fails to maintain a 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.
Each Paying Agent shall hold in trust for the benefit of Holders of
the Securities or the Trustee all money held by the Paying Agent for the payment
of principal of, or interest, if any, on, the Securities (whether such money has
been distributed to it by TLGI or any other obligor on the Securities), and TLGI
(or any other obligor on the Securities) and the Paying Agent shall notify the
Trustee of any default by TLGI (or any other obligor on the Securities) in
making any such payment.
If TLGI or an Affiliate of TLGI acts as Paying Agent, it will, on or
before each due date of the principal of or interests, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal or interest, if
any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by TLGI (or by any other obligor under the Securities)
to make any payment of the principal of or interest, if any, on the Securities
when the same shall become due and payable. TLGI at any time may require a
Paying Agent to distribute all money held by it to the Trustee and account for
any funds disbursed and the Trustee may at any time during the continuance of
any Payment Default with respect to the Securities, 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 Securities) shall have no further liability
for the money so paid over to the Trustee. Anything in this Section 2.09 to the
contrary notwithstanding, any agreement of the Trustee or any Paying Agent to
hold sums in trust as provided in this Section 2.09 is subject to Sections 8.03
and 8.04.
Section 2.10. TRANSFER AND EXCHANGE.
Upon due presentation for registration of transfer of any Security of
any series at the office of any Registrar, TLGI shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of the same series, maturity date, interest date, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by TLGI or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to TLGI and
the Trustee duly executed by, the Holder or his attorney duly authorized in
writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized
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denominations and an equal aggregate principal amount, upon surrender of such
Securities to be exchanged at the office of the Registrar.
TLGI may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer of Securities. No service charge shall be made for any such
transaction or for any exchange of Securities of any series for any such
transaction or for any exchange of Securities of any series as contemplated by
the immediately preceding paragraph.
TLGI shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, (b) any Securities selected, called or being called for redemption,
in whole or in part, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed or (c) any Security if the Holder thereof
has exercised his right, if any, to require TLGI to repurchase such Security in
whole or in part, except the portion of such Security not required to be
repurchased.
Notwithstanding any other provision of this Section 2.10, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies TLGI that it is unwilling
or unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under Section 2.04,
TLGI shall appoint a successor Depositary with respect to such Securities. If a
successor Depositary for such Securities is not appointed by TLGI within 90 days
after TLGI receives such notice or becomes aware of such ineligibility, TLGI's
election pursuant to Section 2.01 that such Securities be represented by one or
more Global Securities shall no longer be effective and TLGI shall execute, and
the Trustee, upon receipt of an Issuer Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive registered form, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Securities in exchange for
such Global Security or Securities.
TLGI may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event TLGI shall execute, and the Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by TLGI pursuant to Section 2.01 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to TLGI and such Depositary. Thereupon, TLGI shall execute, and the
Trustee shall authenticate and deliver, without service charge,
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(i) to the Person specified by such Depositary, a new Security
or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of TLGI or the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant to
this Section 2.10 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of TLGI or the Trustee. The Trustee or such
agent shall deliver at its office such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid and legally binding obligations of TLGI, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Section 2.11. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, TLGI in its discretion may
execute, and upon the written request of any officer of TLGI, the Trustee, in
the absence of notice to the Trustee that such Security has been acquired by a
bona fide purchaser, shall authenticate and deliver a new Security of the same
series, maturity date, interest rate, if any, and original issue date, bearing a
number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to TLGI and to the
Trustee and any agent of TLGI or the Trustee such security or indemnity as may
be required by the Trustee to indemnity and defend and to save each of the
Trustee and TLGI harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, TLGI may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full or is being surrendered for conversion in full shall become
mutilated or defaced or be destroyed, lost or stolen, TLGI may instead of
issuing a substitute Security, pay or authorize the payment of the same or the
conversion of such Security (without surrender thereof except in the case of a
mutilated or defaced Security), if the applicant for such payment or conversion
shall furnish to TLGI and to the Trustee and any agent of TLGI or the Trustee
such security or indemnity as any of them may require to hold each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to TLGI and the Trustee and any agent of TLGI or the Trustee
evidence to the Trustee's satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
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Every substitute Security of any series issued pursuant to the
provisions of this Section 2.11 by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of TLGI, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement, payment or
conversion of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement
payment or conversion of negotiable instruments or other securities without
their surrender.
Section 2.12 CANCELLATION OF SECURITIES; DISPOSITION THEREOF. All
Securities surrendered for payment, purchase, redemption, registration of
transfer, exchange or conversion, or for credit against any payment in respect
of a sinking or analogous fund, if surrendered to TLGI or any agent of TLGI or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee or its agent
shall dispose of cancelled Securities held by it, or hold such Securities in
accordance with its standard retention policy, and deliver a certificate of
disposition or retention to TLGI. If TLGI or its agent shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee or its agent for cancellation.
Section 2.13. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, TLGI may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by TLGI with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
Temporary Security shall be executed by TLGI and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without reasonable delay TLGI shall
execute and shall furnish definitive Securities of such series and thereupon
temporary Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by TLGI for that
purpose pursuant to Section 4.02 and the Trustee shall authenticate and deliver
in exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations. Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.01.
Section 2.14. DEFAULTED INTEREST. If TLGI defaults on a payment of
interest on the Securities of any series, 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. TLGI 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, TLGI shall mail to each Holder a notice that states
the special
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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. TLGI in issuing the Securities of each
series may use a "CUSIP" number with respect to each such series (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 Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. TLGI will promptly notify the Trustee of any change in the
CUSIP number.
Section 2.16. DEPOSIT OF MONEYS. Whenever TLGI shall have one or
more Paying Agents, it will, on or before each due date of the principal of or
interest, if any, on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal or
interest, if any, and (unless such Paying Agent is the Trustee) TLGI will
promptly notify the Trustee of its action or failure so to act.
ARTICLE THREE
SECURITYHOLDERS LIST AND REPORTS BY XXXX AND THE TRUSTEE
Section 3.01 TLGI TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. TLGI and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Securities of each series as of a date not
more than 15 days prior to the time such information is furnished;
(a) semiannually and not more than 15 days after each March 1 and
September 1; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by TLGI of any such request;
provided that if and so long as Trustee shall be the Registrar for such series,
such list shall not be required to be furnished.
Section 3.02 PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS LISTS.
(a) The Trustee shall preserve, in current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 3.01, and (ii) received by it in its capacity of
Registrar or Paying Agent for such series, if so acting, and shall otherwise
comply with TIA Section 312(a). The Trustee may destroy any list furnished to
it as provided in Section 3.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "APPLICANTS") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a
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particular series (in which case the applicants must all hold Securities of such
series) or with Holders of all Securities with respect to their rights under
this Indenture or under such Securities, and such application is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 3.02, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 3.02, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified
in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 3.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or, if, after entry of an order sustaining one or more of such
objection, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order to
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with TLGI and the Trustee that neither TLGI nor the Trustee nor
any agent of TLGI or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section 3.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under such subsection (b).
Section 3.03 REPORTS BY TLGI.:
(a) to file with the Trustee, within 15 days after TLGI is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which TLGI may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if TLGI
is not required to file information, documents or reports pursuant to either of
such Sections, then to file with the Trustee and the Commission,
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in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of debt security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations presented from time to time by the Commission, such
additional information, documents and reports with respect to compliance by TLGI
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 7.07, such summaries of any information, documents and
reports required to be filed by TLGI pursuant to subsections (a) and (b) of this
Section 3.03 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) xxxxxxx to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his knowledge of TLGI's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
ARTICLE FOUR
COVENANTS
TLGI hereby covenants as follows, from and after the Closing Date and
continuing so long as any amount remains unpaid on any Securities:
Section 4.01. PAYMENT OF SECURITIES. TLGI covenants and agrees that
it will duly and punctually pay, or cause to be paid, the principal of and
interest on the Securities of each series on the dates and in the manner
provided in the Securities 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 TLGI, a Subsidiary of TLGI 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 Securities pursuant to the terms of this Indenture.
TLGI covenants and agrees that it will pay interest on overdue
principal at the rate and in the manner provided in the Securities; 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. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any
of the Securities are Outstanding, TLGI will maintain in each Place of Payment,
an office or agency where the Securities may be presented for payment ("PAYING
AGENT"), an office or agency where the Securities may be presented for
registration of transfer and for exchange ("REGISTRAR") and, if applicable, an
office or agency where the Securities may be presented for conversion
("CONVERSION AGENT") as in this Indenture provided, and an office or agency
where notices and demands to or upon TLGI in respect of the Securities or of
this Indenture may be served. In case TLGI shall at any time fail to maintain
any such office or agency, or
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shall fail to give notice to the Trustee of any change in the location thereof,
presentation may be made and notice and demand may be served in respect of the
Securities or of this Indenture at the Corporate Trust Office. TLGI hereby
initially designates the Corporate Trust Office for each such purpose and
appoints the Trustee as Registrar, Paying Agent, Conversion Agent and as the
agent upon whom notices and demands may be served with respect to the
Securities.
Section 4.03. CORPORATE EXISTENCE. Subject to, and except as
otherwise provided in, Article Five, TLGI shall do or cause to be done all
things necessary to and will cause each Restricted Subsidiary to, preserve and
keep in full force and effect the corporate or partnership existence and rights
(charter and statutory), licenses and/or franchises of TLGI and the Restricted
Subsidiaries (including, without limitation, LGII); PROVIDED, HOWEVER, that TLGI
and the Restricted Subsidiaries shall not be required to preserve any such
rights, licenses or franchises if the Board of Directors of TLGI shall
reasonably determine that (x) the preservation thereof is no longer desirable in
the conduct of the business of TLGI and its Subsidiaries taken as a whole and
(y) the loss thereof is not materially adverse to either TLGI and its
Subsidiaries taken as a whole or to the ability of TLGI to otherwise satisfy its
obligations hereunder.
Section 4.04. PAYMENT OF TAXES AND OTHER CLAIMS. TLGI 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 TLGI or any of its Restricted Subsidiaries (including, without
limitation, LGII) or upon the income, profits or property of TLGI or any of
its Restricted Subsidiaries, and (b) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien upon the property
of TLGI or any Restricted Subsidiary of TLGI; PROVIDED, HOWEVER, that TLGI
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 adverse in any material respect to TLGI.
Section 4.05. MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND
RECORDS; COMPLIANCE WITH LAW.
(a) TLGI shall, and shall cause each of its Restricted Subsidiaries
(including, without limitation, LGII) to, cause all properties and assets to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment, and shall cause to
be made all necessary repairs, renewals, replacements, additions, betterments
and improvements thereto, as shall be reasonably necessary for the proper
conduct of its business; PROVIDED, HOWEVER, that nothing in this Section 4.05(a)
shall prevent TLGI 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 the Board of Directors of TLGI or such
Restricted Subsidiary, desirable in the conduct of its business and if such
discontinuance is not materially adverse to either TLGI and its Subsidiaries
taken as a whole or the ability of LGII or TLGI to otherwise satisfy its
obligations hereunder.
(b) TLGI shall, and shall cause each of its Restricted Subsidiaries
(including, without limitation, LGII) to, maintain with financially sound and
reputable insurers such insurance as may be required by law (other than with
respect to any environmental impairment liability insurance not commercially
available) and such other insurance to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly situated (which
may include self-insurance in the same form as is customarily maintained by
companies similarly situated).
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(c) TLGI shall, and shall cause each of its Restricted Subsidiaries
(including, without limitation, LGII) to, keep proper books of record and
account, in which full and correct entries shall be made of all business and
financial transactions of TLGI and each Restricted Subsidiary of TLGI and
reflect on its financial statements adequate accruals and appropriations to
reserves, all in accordance with GAAP consistently applied to TLGI and its
Subsidiaries taken as a whole.
(d) TLGI shall and shall cause each of its Restricted Subsidiaries
(including, without limitation, LGII) to comply with all statutes, laws,
ordinances, or government rules and regulations to which it is subject,
non-compliance with which would materially adversely affect the business,
earnings, properties, assets or condition (financial or otherwise) of TLGI and
its Subsidiaries taken as a whole.
Section 4.06. COMPLIANCE CERTIFICATE.
(a) TLGI will deliver to the Trustee within 60 days after the end of
each of TLGI's first three fiscal quarters and within 90 days after the end of
TLGI's fiscal year an Officers' Certificate stating whether or not the signers
know of any Default or Event of Default under this Indenture by TLGI or LGII or
an event which, with notice or lapse of time or both, would constitute a default
by TLGI or 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 TLGI beginning after the Issue
Date. TLGI shall also deliver a certificate to the Trustee at least annually
from its principal executive, financial or accounting officer as to his or her
knowledge of LGII's and TLGI's compliance with all conditions and covenants
under this Indenture and LGII's, such compliance to be determined without regard
to any period of grace or requirement of notice provided herein or therein.
(b) TLGI shall deliver to the Trustee within 90 days after the end
of each fiscal year a written statement by XXXX's independent chartered
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default or Event of Default under this Indenture or an event which, with
notice or lapse of time or both, would constitute a default under any Pari
Passu Indebtedness has come to their attention and, if such a Default, Event
of Default or a default under any Pari Passu Indebtedness has come to their
attention, specifying the nature and period of existence thereof; PROVIDED,
HOWEVER, that, without any restriction as to the scope of the audit
examination, such independent certified public accountants shall not be
liable by reason of any failure to obtain knowledge of any such Default,
Event of Default or a default under any Pari Passu Indebtedness that would
not be disclosed in the course of an audit examination conducted in
accordance with GAAP.
(c) TLGI will deliver to the Trustee as soon as possible, and in any
event within 10 days after TLGI becomes aware or should reasonably have become
aware of the occurrence of any Default, Event of Default or an event which, with
notice or lapse of time or both, would constitute a default by TLGI, as the case
may be, under any Indebtedness, an Officers' Certificate specifying such
Default, Event of Default or default and what action TLGI is taking or proposes
to take with respect thereto.
Section 4.07. LIMITATION ON INDEBTEDNESS.
TLGI will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
create, incur, issue, assume, guarantee or in any manner become directly or
indirectly liable, contingently or otherwise, for the payment of (collectively,
to "INCUR") any
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Indebtedness (including, without limitation, any Acquired Indebtedness) other
than Permitted Indebtedness. Notwithstanding the foregoing limitations, TLGI and
LGII (and any Wholly-Owned Subsidiary with respect to Seller Financing
Indebtedness) will be permitted to incur Indebtedness (including, without
limitation, Acquired Indebtedness) if at the time of such incurrence, and after
giving PRO FORMA effect thereto, the Consolidated Fixed Charge Coverage Ratio of
TLGI is at least equal to 2.25 : 1.
Section 4.08. LIMITATION ON RESTRICTED PAYMENTS.
TLGI will not, and will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to, directly or indirectly:
(a) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of TLGI 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 TLGI or any of its Restricted
Subsidiaries (other than (x) dividends or distributions payable solely in
Capital Stock of TLGI (other than Redeemable Capital Stock) or in options,
warrants or other rights to purchase Capital Stock of TLGI (other than
Redeemable Capital Stock) and (y) dividends or other distributions to the extent
declared or paid to TLGI or any Wholly-Owned Subsidiary of TLGI),
(b) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of TLGI or any of its Restricted Subsidiaries (other
than any such Capital Stock of a Wholly-Owned Subsidiary of TLGI),
(c) make any principal payment on, or purchase, defease, repurchase,
redeem or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment, scheduled sinking fund payment or other Stated
Maturity, any Indebtedness that is subordinate or junior in right of payment to
the Securities or Pari Passu Indebtedness (other than any such subordinated or
Pari Passu Indebtedness owned by TLGI or a Wholly-Owned Subsidiary of TLGI), or
(d) make any Investment (other than any Permitted Investment) in any
person, (such payments or Investments described in the preceding clauses (a),
(b), (c) and (d) are collectively referred to as "RESTRICTED PAYMENTS"), unless,
at the time of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, shall be the Fair
Market Value on the date of such Restricted Payment of the asset(s) proposed to
be transferred by TLGI 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, TLGI would be able to incur $1.00 of
additional Indebtedness pursuant to Section 4.07 (assuming a market rate of
interest with respect to such additional Indebtedness) and (C) the aggregate
amount of all Restricted Payments declared or made from and after the
Measurement Date would not exceed the sum of (1) 50% of the aggregate
Consolidated Net Income of TLGI accrued on a cumulative basis during the period
beginning on the first day of the fiscal quarter of TLGI during which the
Measurement Date occurs and ending on the last day of the fiscal quarter of TLGI
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 TLGI for such period shall be a deficit, minus 100%
of such deficit) PLUS (2) the aggregate net cash proceeds received by TLGI or
LGII (without duplication) either (x) as capital contributions to TLGI or LGII
(without duplication) after the Measurement Date from any person (other than
TLGI, LGII or a Restricted Subsidiary of TLGI or LGII, as the case may be) or
(y) from the issuance or sale of Capital Stock (excluding Redeemable Capital
Stock, but including Capital Stock issued upon the conversion of convertible
Indebtedness or from the exercise of
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options, warrants or rights to purchase Capital Stock (other than Redeemable
Capital Stock)) of TLGI or LGII (without duplication) to any person (other than
to TLGI, LGII or a Restricted Subsidiary of TLGI or LGII, as the case may be)
after the Measurement Date PLUS (3) in the case of the disposition or repayment
of any Investment constituting a Restricted Payment made after the Measurement
Date (excluding any Investment described in clause (v) of the following
paragraph), an amount equal to the lesser of the return of capital with respect
to such Investment and the cost of such Investment less, in either case, the
cost of the disposition of such Investment PLUS (4) the sum of $15,000,000. For
purposes of the preceding clause (C)(2), the value of the aggregate net proceeds
received by TLGI or LGII (without duplication) upon the issuance of Capital
Stock upon the conversion of convertible Indebtedness or upon the exercise of
options, warrants or rights will be the net cash proceeds received upon the
issuance of such Indebtedness, options, warrants or rights plus the incremental
cash amount received by TLGI or LGII (without duplication) upon the conversion
or exercise thereof.
None of the foregoing provisions will prohibit (i) the payment of any
dividend within 60 days after the date of its declaration, if at the date of
declaration such payment would be permitted by the foregoing paragraph; (ii) so
long as no Default or Event of Default shall have occurred and be continuing,
the redemption, repurchase or other acquisition or retirement of any shares of
any class of Capital Stock of TLGI or any Restricted Subsidiary of TLGI in
exchange for, or out of the net cash proceeds of, a substantially concurrent (x)
capital contribution to TLGI or LGII from any person (other than a Related
Obligor) or (y) issue and sale of other shares of Capital Stock (other than
Redeemable Capital Stock) of TLGI or LGII to any person (other than to a Related
Obligor); (iii) so long as no Default or Event of Default shall have occurred
and be continuing, any redemption, repurchase or other acquisition or retirement
of Indebtedness that is subordinate or junior in right of payment to the
Securities by exchange for, or out of the net cash proceeds of, a substantially
concurrent (x) capital contribution to TLGI or LGII from any person (other than
a Related Obligor) or (y) issue and sale of (1) Capital Stock (other than
Redeemable Capital Stock) of TLGI or LGII to any person (other than a Related
Obligor); PROVIDED, HOWEVER, that the amount of any such net proceeds that are
utilized for any such redemption, repurchase or other acquisition or retirement
shall be excluded from clause (C)(2) of the preceding paragraph; or (2)
Indebtedness of TLGI or LGII issued to any person (other than a Related
Obligor), so long as such Indebtedness is Pari Passu Indebtedness or
Indebtedness that is subordinate or junior in right of payment to the Securities
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 TLGI or LGII from any person (other than a Related
Obligor) or (y) issue and sale of (1) Capital Stock (other than Redeemable
Capital Stock) of TLGI or LGII to any person (other than a Related Obligor);
PROVIDED, HOWEVER, that the amount of any such net proceeds that are utilized
for any such redemption, repurchase or other acquisition or retirement shall be
excluded from clause (C)(2) of the preceding paragraph; or (2) Indebtedness of
TLGI or LGII issued to any person (other than a Related Obligor), so long as
such Indebtedness is Pari Passu Indebtedness or Indebtedness that is subordinate
or junior in right of payment to the Securities in the same manner and at least
to the same extent as the Indebtedness so purchased, exchanged, redeemed,
acquired or retired; (v) Investments constituting Restricted Payments made as a
result of the receipt of consideration that consists of cash or Cash Equivalents
from any Asset Sale made pursuant to and in compliance with Section 4.12;
(vi) so long as no Default or Event of Default has occurred and is continuing,
repurchases by TLGI of common stock of TLGI from employees of TLGI or their
authorized representatives upon the death, disability or termination of
employment of such employees, in an aggregate amount not exceeding $10,000,000
in any calendar year; (vii) Investments constituting Restricted Payments that
are permitted by subparagraphs (iv) and (v) of the proviso to Section 4.13; and
(viii) the declaration or the payment of dividends on, or the scheduled
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purchase or redemption of, the Preferred Securities of a Special Finance
Subsidiary or the Series C Preferred Shares, of TLGI. In computing the amount of
Restricted Payments previously made for purposes of clause (C) of the preceding
paragraph, Restricted Payments made under the preceding clauses (v), (vi) and
(vii) shall be included and those under clauses (i), (ii), (iii), (iv) and
(viii) shall not be so included. For purposes of this Section 4.08 only, the
term "RELATED OBLIGOR" shall mean TLGI or a Restricted Subsidiary of TLGI.
Section 4.09. LIMITATION ON ISSUANCES AND SALE OF PREFERRED STOCK BY
RESTRICTED SUBSIDIARIES.
TLGI (a) will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to issue any Preferred Stock (other than
(i) Preferred Stock issued to TLGI or a Wholly-Owned Subsidiary of TLGI and (ii)
Preferred Securities of a Special Finance Subsidiary); and (b) will not permit
any person to own any Preferred Stock of any Restricted Subsidiary of TLGI
(other than (i) Preferred Stock owned by TLGI or a Wholly-Owned Subsidiary of
TLGI and (ii) Preferred Securities of a Special Finance Subsidiary); PROVIDED,
HOWEVER, that this covenant shall not prohibit the issuance and sale of (x) all,
but not less than all, of the issued and outstanding Capital Stock of any
Restricted Subsidiary of TLGI owned by TLGI 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.
Section 4.10. LIMITATION ON LIENS.
TLGI will not, and will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to, create, incur, assume or suffer to
exist any Liens of any kind against or upon any of its property or assets, or
any proceeds therefrom where the aggregate amount of Indebtedness secured by any
such Liens, together with the aggregate amount of property subject to any
Sale-Leaseback Transactions of TLGI and its Restricted Subsidiaries (other than
Permitted Sale-Leaseback Transactions), exceeds 10% of TLGI's Consolidated Net
Worth, unless (x) in the case of Liens securing Indebtedness that is subordinate
or junior in right of payment to the Securities, the Securities are secured by a
Lien on such property, assets or proceeds that is senior in priority to such
Liens and (y) in all other cases, the Securities are equally and ratably secured
except for (a) Liens existing as at the Measurement Date; (b) Liens securing the
Securities; (c) Liens in favor of TLGI, LGII or any Wholly-Owned Subsidiary;
(d) Liens securing Indebtedness which is incurred to refinance Indebtedness
which has been secured by a Lien permitted under the provisions of this
Indenture and which has been incurred in accordance with the provisions of the
Indenture; PROVIDED, HOWEVER, that such Liens do not extend to or cover any
property or assets of TLGI or any of its Restricted Subsidiaries not securing
the Indebtedness so refinanced; and (e) Permitted Liens.
Section 4.11. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, TLGI 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 Securities of each series properly tendered and not withdrawn at a
purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") equal to 101% of the
principal amount thereof (or, in the case of an Original Issue Discount
Security, the principal thereof (including any amount in respect of original
issue discount) plus accrued and unpaid interest, if any, to the Change of
Control Purchase Date. The Change of Control Offer is required to remain open
for at least 20 Business Days and until the close of business on the Change of
Control Purchase Date.
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Notice of a Change of Control Offer shall be mailed by TLGI not later
than the 30th day after the date of occurrence of the Change of Control to the
Holders of Securities 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 Securities 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 Security, the Change of Control Purchase Date and the date on
which the Change of Control Offer expires;
(c) that any Security not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless TLGI shall default in the payment of the purchase
price, any Security 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 Securities purchased pursuant to a
Change of Control Offer will be required to surrender their Securities 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 TLGI and reasonably acceptable to the Trustee
and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York City
time, on the Change of Control Purchase Date, a tested telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Securities the Holder delivered for purchase, the Security certificate
number (if any) and a statement that such Holder is withdrawing its election to
have such Securities purchased;
(g) that Holders whose Securities are purchased only in part will be
issued Securities equal in principal amount to the unpurchased portion of the
Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) information concerning the business of TLGI, the most recent
annual and quarterly reports of TLGI filed with the Commission pursuant to the
Exchange Act (or, if TLGI is not then permitted to file any such reports with
the Commission, the comparable reports prepared pursuant to Section 4.17), a
description of material developments in the business of TLGI, information with
respect to PRO FORMA historical financial information after giving effect to
such Change of Control and such other information concerning the circumstances
and relevant facts regarding such Change of Control Offer as would be material
to a Holder of Securities in connection with the decision of such Holder as to
whether or not it should tender Securities pursuant to the Change of Control
Offer.
On the Change of Control Purchase Date, TLGI shall (i) accept for
payment Securities or portions thereof validly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Securities or
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portions thereof so tendered and accepted and (iii) deliver to the Trustee the
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by TLGI.
The Paying Agent shall promptly mail or deliver to the Holders of Securities 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 Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by TLGI to the
Holder thereof. TLGI 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.
TLGI 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 TLGI and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.
TLGI 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 Securities pursuant to a Change of Control
Offer.
Section 4.12. DISPOSITION OF PROCEEDS OF ASSET SALES.
(a) TLGI will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) or First Capital Life
Insurance Company of Louisiana, National Capital Life Insurance Company,
Security Industrial Insurance Company, Security Industrial Fire Insurance
Company or any successors to such Subsidiaries to, make any Asset Sale unless
(a) TLGI or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the shares or assets sold or otherwise disposed of and (b) at least 75%
of such consideration consists of cash or Cash Equivalents. To the extent the
Net Cash Proceeds of any Asset Sale are not required to be applied to repay, and
permanently reduce the commitments under, the Credit Agreements (as required by
the terms thereof) or any other Pari Passu Indebtedness, or are not so applied,
TLGI or such Restricted Subsidiary, as the case may be, may, within 180 days of
such Asset Sale, apply such Net Cash Proceeds to an investment in properties and
assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of TLGI
and its Restricted Subsidiaries existing on the Issue Date or in businesses
reasonably related thereto ("REPLACEMENT ASSETS"). Any Net Cash Proceeds from
any Asset Sale that are neither used to repay, and permanently reduce the
commitments under, the Credit Agreements nor invested in Replacement Assets
within the 180-day period described above constitute "EXCESS PROCEEDS" subject
to disposition as provided below.
(b) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000, after satisfying any similar purchase obligations of TLGI or LGII
under Senior Debt instruments outstanding as of the Issue Date, TLGI shall make
an offer to purchase (an "ASSET SALE OFFER"), from all holders of each series of
the Securities, not more than 40 Business Days thereafter, an aggregate
principal amount of Securities equal to such Excess Proceeds, at a price in
cash equal to 100% of the outstanding principal amount thereof (or, in the case
of an Original Issue Discount Security, the principal thereof (including any
amount in respect of original issue discount) plus accrued and unpaid interest,
if any, to the purchase date (the "ASSET SALE OFFER PRICE).
(c) Notice of an Asset Sale Offer shall be mailed by TLGI to all
Holders of Securities not less than 20 Business Days nor more than 40 Business
Days before the Asset Sale Purchase Date at
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their last registered address with a copy to the Trustee and the Paying Agent.
The Asset Sale Offer shall remain open from the time of mailing for at least 20
Business Days and until at least 5:00 p.m., New York City time, on the Asset
Sale Purchase Date. The notice, which shall govern the terms of the Asset Sale
Offer, shall include such disclosures as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.12;
(2) the Asset Sale Offer Price (including the amount of accrued
interest, if any) for each Security, the Asset Sale Purchase Date and the date
on which the Asset Sale Offer expires;
(3) that any Security not tendered or accepted for payment will
continue to accrue interest in accordance with the terms thereof;
(4) that, unless LGII shall default in the payment of the Asset Sale
Offer Price, any Security accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have Securities purchased pursuant to an
Asset Sale Offer will be required to surrender their Securities 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;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on the
Asset Sale Purchase Date, a tested telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Securities the
Holder delivered for purchase, the Security certificate number (if any) and a
statement that such Holder is withdrawing its election to have such Securities
purchased;
(7) that if Securities in a principal amount in excess of the
Holder's PRO RATA share of the amount of Excess Proceeds are tendered pursuant
to the Asset Sale Offer, LGII shall purchase Securities on a PRO RATA basis
among the Securities tendered (with such adjustments as may be deemed
appropriate by LGII so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities are purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
(9) the instructions that Holders must follow in order to tender
their Securities; and
(10) information concerning the business of TLGI, the most recent
annual and quarterly reports of TLGI filed with the Commission pursuant to the
Exchange Act (or, if TLGI is not permitted to file any such reports with the
Commission, the comparable reports prepared pursuant to Section 4.17), a
description of material developments in the business of LGII and TLGI,
information with respect to PRO FORMA historical financial information after
giving effect to such Asset Sale and Asset Sale Offer and such other information
concerning the circumstances and relevant facts regarding such Asset Sale Offer
as would be material to a Holder of Securities in connection with the decision
of such Holder as to whether or not it should tender Securities pursuant to the
Asset Sale Offer.
(11) On the Asset Sale Purchase Date, TLGI shall (i) accept for
payment, on a PRO RATA basis, Securities or portions thereof tendered pursuant
to the Asset Sale Offer, (ii) deposit with the
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Paying Agent money, in immediately available funds, in an amount sufficient to
pay the Asset Sale Offer Price of all Securities or portions thereof so tendered
and accepted and (iii) deliver to the Trustee the Securities so accepted
together with an Officers' Certificate setting forth the Securities or portions
thereof tendered to and accepted for payment by TLGI. The Paying Agent shall
promptly mail or deliver to Holders of Securities 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 Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by TLGI to the
Holder thereof. TLGI will publicly announce the results of the Asset Sale Offer
not later than the first Business Day following the Asset Sale Purchase Date.
To the extent that the aggregate principal amount of Securities tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, TLGI or LGII,
as the case may be, may use such deficiency for general corporate purposes. Upon
completion of such Asset Sale Offer, the amount of Excess Proceeds shall be
reset to zero. For purposes of this Section 4.12, the Trustee shall act as
Paying Agent.
(12) TLGI 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 Securities pursuant to the
Asset Sale Offer.
Section 4.13. LIMITATION ON TRANSACTIONS WITH INTERESTED PERSONS.
TLGI will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or
indirectly, enter into or suffer to exist any transaction or series of
related transactions (including, without limitation, the sale, transfer,
disposition, purchase, exchange or lease of assets, property or services)
with, or for the benefit of, any Affiliate of TLGI or any beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is exercisable
immediately, after the passage of time or upon the happening of an event) of
5% or more of the Common Shares at any time outstanding ("INTERESTED
PERSONS"), unless (a) such transaction or series of related transactions are
on terms that are no less favorable to TLGI 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 TLGI or
Interested Persons, (b) with respect to a transaction or series of
transactions involving aggregate payments or value equal to or greater than
$10,000,000, TLGI has obtained a written opinion from an Independent
Financial Advisor stating that the terms of such transaction or series of
transactions are fair to TLGI or its Restricted Subsidiary, as the case may
be, from a financial point of view and (c) with respect to a transaction or
series of transactions involving aggregate payments or value equal to or
greater than $2,500,000, TLGI shall have delivered an Officer's Certificate
to the Trustee certifying that such transaction or series of transactions
comply with the preceding clause (a) and, if applicable, certifying that the
opinion referred to in the preceding clause (b) has been delivered and that
such transaction or series of transactions has been approved by a majority of
the Board of Directors of TLGI (including a majority of the disinterested
directors); PROVIDED, HOWEVER, that this covenant will not restrict TLGI from
(i) paying dividends in respect of its Capital Stock permitted under Section
4.08, (ii) paying reasonable and customary fees to directors of TLGI or any
Restricted Subsidiary who are not employees of TLGI or any Restricted
Subsidiary, (iii) entering into transactions with its Wholly-Owned
Subsidiaries or permitting its Wholly-Owned Subsidiaries from entering into
transactions with other Wholly-Owned Subsidiaries of TLGI, (iv) making loans
or advances to senior officers and directors of TLGI or any Restricted
Subsidiary not in excess of $6,000,000 in the aggregate at any one time
outstanding, (v) guaranteeing loans made to officers and other employees of
TLGI or any Restricted Subsidiaries in connection with TLGI's 1994 Management
Equity Investment Plan not in excess of $6,000,000 in the aggregate at any
tone time outstanding, (vi) making loans or advances to officers,
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employees or consultants of TLGI and its Restricted Subsidiaries for travel and
moving expenses in the ordinary course of business for bona fide business
purposes of TLGI and its Restricted Subsidiaries, (vii) making other loans or
advances to officers, employees or consultants of TLGI and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes
of TLGI and its Restricted Subsidiaries not in excess of $10,000,000 in the
aggregate at any one time outstanding, (viii) making payments to officers or
employees of TLGI or its Restricted Subsidiaries pursuant to obligations
undertaken, at a time when such persons were not officers or employees of TLGI
or its Restricted Subsidiaries, in connection with arms' length Asset
Acquisitions or (ix) declaring or paying dividends on, or purchasing or
redeeming, the Preferred Securities of a Special Finance Subsidiary.
Section 4.14. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
TLGI will not, and will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary of TLGI 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 TLGI or any other
Restricted Subsidiary of TLGI, (c) make loans or advances to, or any Investment
in, TLGI or any other Restricted Subsidiary of TLGI, (d) transfer any of its
properties or assets to TLGI or any other Restricted Subsidiary of TLGI or (e)
guarantee any Indebtedness of TLGI or any other Restricted Subsidiary of TLGI,
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 TLGI or any Restricted Subsidiary of
TLGI, (iii) customary restrictions on transfers of property subject to a Lien
permitted under the provisions of this Indenture which could not materially
adversely affect TLGI's ability to satisfy its obligations under the provisions
of this Indenture and the Securities, (iv) any agreement or other instrument of
a person acquired by TLGI or any Restricted Subsidiary of TLGI (or a Restricted
Subsidiary of such person) in existence at the time of such acquisition (but
not created in contemplation thereof), which encumbrance or restriction is not
applicable to any person, or the properties or assets of any person, other than
the person, or the properties or assets of the person, so acquired, (v)
provisions contained in any agreement or instrument relating to Indebtedness
which prohibit the transfer of all or substantially all of the assets of the
obligor thereunder unless the transferee shall assume the obligations of the
obligor under such agreement or instrument and (vi) encumbrances and
restrictions under Indebtedness in effect on the Issue Date (including under the
Securities) and encumbrances and restrictions in permitted refinancings or
replacements thereof which are no less favorable to the holders of the
Securities than those contained in the Indebtedness so refinanced or replaced.
Section 4.15. LIMITATIONS ON SALE-LEASEBACK TRANSACTIONS.
TLGI will not, and will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to, enter into any Sale-Leaseback
Transaction with respect to any property of TLGI or any of its Restricted
Subsidiaries where the aggregate amount of property subject to such
Sale-Leaseback Transactions, together with the aggregate amount of Liens
securing Indebtedness of TLGI and its Restricted Subsidiaries (other than
Permitted Liens), exceeds 10% of TLGI's Consolidated Net Worth. Notwithstanding
the foregoing, TLGI and its Restricted Subsidiaries may enter into
Sale-Leaseback Transactions ("PERMITTED SALE-LEASEBACK TRANSACTIONS") with
respect to property acquired or constructed after the Issue Date; PROVIDED that
(a) the Attributable Value of such Sale-Leaseback Transaction shall be deemed to
be Indebtedness of TLGI or such Restricted Subsidiary, as the case may be, and
(b) after giving PRO FORMA effect to any such Sale-Leaseback Transaction and the
foregoing clause (a), TLGI would be able
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to incur $1.00 of additional Indebtedness pursuant to 4.07 (assuming a market
rate of interest with respect to such additional Indebtedness).
Section 4.16. LIMITATION ON APPLICABILITY OF CERTAIN COVENANTS.
During any period of time that (i) the ratings assigned to the
Securities by each of S&P and Xxxxx'x (collectively, the "RATING AGENCIES") are
no less than BBB-and Baa3, respectively (the "INVESTMENT GRADE RATINGS"), and
(ii) no Default or Event of Default has occurred and is continuing, TLGI and its
Restricted Subsidiaries (including, without limitation, LGII) will not be
subject to the covenants contained in Sections 4.07, 4.08, 4.09, 4.12, 4.13 and
4.14 (collectively, the "SUSPENDED COVENANTS"). If one or both Rating Agencies
withdraws its rating or downgrades its Investment Grade Rating, then thereafter
TLGI and its Restricted Subsidiaries will be subject, on a prospective basis, to
the Suspended Covenants (until the Rating Agencies have again assigned
Investment Grade Ratings to the Securities) and compliance with the Suspended
Covenants with respect to Restricted Payments made after the time of such
withdrawal or downgrade will be calculated in accordance with the covenant
contained in Section 4.07 as if such covenant had been in effect at all times
after the Measurement Date.
Section 4.17 COMMISSION REPORTS.
TLGI 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
TLGI has a class of securities registered under the Exchange Act. In accordance
with the provisions of TIA Section 314(a), TLGI 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 TLGI
would have been required to make such filing), copies of such reports. TLGI
also shall comply with the other provisions of TIA Section 314(a). In addition,
TLGI 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 TLGI'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 TLGI is no longer subject to the reporting requirements
of the Exchange Act, it will furnish to the Holders or beneficial holders of the
Securities and prospective purchasers of the Securities designated by the
holders of the Securities, 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.
TLGI covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury
law or other law which would prohibit or forgive TLGI from paying all or any
portion of the principal of, premium, if any, or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) TLGI hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
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ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. WHEN TLGI OR LGII MAY MERGE, ETC.
(a) TLGI will not, and will not permit LGII to, in any transaction or
series of transactions, merge or consolidate with or into, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any person or persons, and TLGI will
not permit any of its Restricted Subsidiaries (including, without limitation,
LGII) to enter into any such transaction or series of transactions if such
transaction or series of transactions, in the aggregate, would result in a sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of TLGI or LGII or TLGI and its
Restricted Subsidiaries, taken as a whole, or LGII and its Restricted
Subsidiaries, taken as a whole, to any other person or persons, unless at the
time of and after giving effect thereto (a) either (i) if the transaction or
series of transactions is a merger or consolidation, TLGI or LGII or the
Restricted Subsidiary, as the case may be, shall be the surviving person of such
merger or consolidation, or (ii) the person formed by such consolidation or into
which TLGI or such Restricted Subsidiary, as the case may be, is merged or to
which the properties and assets of TLGI, LGII or such Restricted Subsidiary, as
the case may be, are transferred (any such surviving person or transferee person
being the "SURVIVING ENTITY") shall be a corporation organized and existing
under the laws of the United States of America, any state thereof, the District
of Columbia, Canada or any province thereof and shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest on all the Securities and the performance and
observance of every covenant and obligation of this Indenture and the Securities
on the part of TLGI to be performed or observed and, in each case, this
Indenture shall remain in full force and effect; (b) immediately before and
immediately after giving effect to such transaction or series of transactions on
a PRO FORMA basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), no Default or Event of Default shall have occurred
and be continuing and TLGI, LGII or the Surviving Entity, as the case may be,
after giving effect to such transaction or series of transactions on a PRO FORMA
basis (including, without limitation, any Indebtedness incurred or anticipated
to be incurred in connection with or in respect of such transaction or series of
transactions), could incur $1.00 of additional Indebtedness pursuant to Section
4.07 (assuming a market rate of interest with respect to such additional
Indebtedness); (c) immediately after giving effect to such transaction or series
of transactions on a PRO FORMA basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), the Consolidated Net
Worth of TLGI, LGII or the Surviving Entity, as the case may be, is at least
equal to the Consolidated Net Worth of TLGI or LGII, as the case may be,
immediately before such transaction or series of transactions; and (d) TLGI 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 TLGI or LGII, as the case may be, with
respect to periods subsequent to the effective time of such merger,
consolidation or transfer of assets.
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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 TLGI or LGII in accordance with Section 5.01 hereof,
the successor person or persons formed by such consolidation or into which
TLGI 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, TLGI under
this Indenture and the Securities with the same effect as if such successor
had been named as TLGI 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 TLGI with respect to periods subsequent to the effective time of such
merger, consolidation or transfer of assets.
ARTICLE SIX
REMEDIES
Section 6.01. EVENTS OF DEFAULT. "EVENT OF DEFAULT", wherever used
herein with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default), unless it is
earlier inapplicable to a particular series or is specifically deleted or
modified in or pursuant to the Board Resolutions or supplemental indenture
establishing such series of Securities or in the form of Security for such
series:
(a) default in the payment of the principal of or premium, if any, on
the Securities of such series as and when the same shall become due and payable
(upon maturity, acceleration, optional redemption, required purchase, scheduled
principal payment, by declaration or otherwise); or
(b) default in the payment of any installment of interest upon any of
the Securities of such series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(c) failure on the part of TLGI duly to observe or perform any other
term, covenant or agreement contained in the Securities of such series or
pursuant to the provisions of this Indenture (other than Defaults specified in
clause (a) or (b) above) and such Default continues for a period of 60 days
after the date on which written notice of such Default requiring TLGI to remedy
the same shall have been given (i) to TLGI by the Trustee by registered mail, or
(ii) to TLGI and the Trustee by Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding; or
(d) default or defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which
TLGI or any Restricted Subsidiary of TLGI (including, without limitation,
LGII) then has outstanding Indebtedness in excess of $20,000,000 (including
Securities of another series), individually or in the aggregate, and either
(i) such Indebtedness is already due and payable in full or (ii) such default
or defaults have resulted in the acceleration of the maturity of such
Indebtedness; or
(e) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the payment of
money in excess of $20,000,000, either individually or in the aggregate, shall
be entered against TLGI or any Restricted Subsidiary of TLGI
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(including, without limitation, LGII) or any of their respective properties and
shall not be discharged or bonded against or stayed and there shall have been a
period of 60 days after the date on which any period for appeal has expired and
during which a stay of enforcement of such judgment, order or decree, shall not
be in effect; or
(f) either (i) the collateral agent under the Collateral Agreement or
(ii) any holder of at least $20,000,000 in aggregate principal amount of
Indebtedness of TLGI or any of its Restricted Subsidiaries (including, without
limitation, LGII) shall commence judicial proceedings to foreclose upon assets
of TLGI or any of its Restricted Subsidiaries having an aggregate Fair Market
Value, individually or in the aggregate, in excess of $20,000,000 or shall have
exercised any right under applicable law or applicable security documents to
take ownership of any such assets in lieu of foreclosure; or
(g) TLGI or any Significant Subsidiary of TLGI pursuant to or under
or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding;
(2) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(3) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(4) makes a general assignment for the benefit of its creditors; or
(5) shall generally not pay its debts when such debts become due or
shall admit in writing its inability to pay its debts generally; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against TLGI or any Significant Subsidiary of TLGI
in an involuntary case or proceeding,
(2) appoints a Custodian of TLGI or any Significant Subsidiary of
TLGI for all or substantially all of its properties, or
(3) orders the liquidation of TLGI or any Significant Subsidiary of
TLGI,
and in each case the order or decree remains unstayed and in effect for 60 days;
or
(i) any other Event of Default provided with respect to the
Securities of such series; or
(j) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to the Securities of such series, as and
when such obligation shall become due and payable.
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
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Officer at the Corporate Trust Office of the Trustee by LGII, TLGI, 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)) occurs and is continuing with
respect to the Securities of any series then Outstanding, the Trustee, by
written notice to TLGI, or the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, by written notice
to the Trustee and TLGI, may declare the principal amount (or, if the
Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all the Securities of such series, premium, if any, and accrued
and unpaid interest, if any, on all of the Securities of such series to be
due and payable immediately, upon which declaration, all amounts payable in
respect of the Securities of such series shall be immediately due and
payable. If an Event of Default specified in Section 6.01(g) or 6.01(h)
occurs and is continuing, then the unpaid principal amount (or, if the
Securities of any series then Outstanding are Original Issue Discount
Securities, such portion of the principal amounts as may be specified in the
terms of each such series), premium, if any, and accrued and unpaid interest
on all Securities of each series then outstanding shall IPSO FACTO become and
be immediately due and payable without any declaration or other act by the
Trustee or any Securityholder.
After a declaration of acceleration hereunder with respect to
Securities of any series, 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 Securities of such series, by
written notice to TLGI and the Trustee, may rescind and annul such
declaration and its consequences if (a) TLGI 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
Securities of such series, (iii) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Securities of such series, and (iv) to the extent that payment of such
interest is lawful, interest upon overdue interest and overdue principal
which has become due otherwise than by such declaration of acceleration at
the rate borne by the Securities of such series; (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 Securities of such series that has
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 6.04; but no such rescission and annulment
shall extent to or shall affect any subsequent default, or shall impair any
right consequent thereon.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right subsequent therein.
Section 6.03. OTHER REMEDIES.
TLGI covenants that (a) if default shall be made in the payment of
any installment of interest upon any of the Securities of any series then
Outstanding as and when the same shall become due and payable, and such
default shall have continued for a period of 30 days, or (b) if default shall
be made in the payment of the principal of any of the Securities of such
series as and when the same shall have become due and payable, whether at
maturity of the Securities of such series or upon redemption or by
declaration or otherwise, then, upon demand of the Trustee, TLGI will pay to
the Trustee, for the benefit of the Holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities of
such series for principal or interest, if any, or both, as the case may be,
with interest upon the overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) upon
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the overdue installments of interest, if any, at the rate borne by the
Securities of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred
by the Trustee hereunder other than through its negligence or bad faith.
If TLGI shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against TLGI or any other obligor on the Securities of such series
and collect in the manner provided by law out of the property of TLGI or any
other obligor on the Securities of such series, wherever situated, the moneys
adjudged or decreed to be payable.
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 Securities or to
enforce the performance of any provision of the Securities or this Indenture.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suits or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
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 Securities of such series by notice to the
Trustee may, on behalf of the Holders of all the Securities of any such series,
waive any existing Default or Event of Default and its consequences, except a
Default or Event of Default specified in Section 6.01(a) or (b) or in respect of
any provision hereof which cannot be modified or amended without the consent of
the Holder so affected pursuant to Section 9.02. When a Default or Event of
Default is so waived, it shall be deemed cured and shall cease to exist.
Section 6.05. DIRECTION OF PROCEEDINGS; WAIVER OF DEFAULTS BY
MAJORITY OF SECURITYHOLDERS. The Holders of a majority in aggregate principal
amount of the Securities of any series then Outstanding 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 with respect to Securities of such series; PROVIDED, HOWEVER, that the
Trustee may refuse to follow any direction (a) that conflicts with any rule of
law or this Indenture, (b) that the Trustee determines may be unduly prejudicial
to the rights of another Noteholder, or (c) that may expose the Trustee to
personal liability unless the Trustee has been provided reasonable indemnity
against any loss or expense caused by its following such direction; and
PROVIDED, FURTHER, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. The Holders of a
majority in aggregate principal amount of the Securities of any series then
Outstanding may on behalf of the Holders of all of the Securities of such series
waive any past default or Event of Default hereunder and its consequences except
a default in the payment of interest, if any, on, or the principal of, the
Securities of such series. The provisions of Section 316(a)(1)(B) of the Trust
Indenture Act of 1939 are expressly excluded herefrom. Upon any such waiver
TLGI, the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of
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Default or impair any right consequent thereon. Whenever any default or Event
or Default hereunder shall have been waived as permitted by this Section 6.05,
said default or Event of Default shall for all purposes of the Securities and
this Indenture be deemed to have been cured and to be not continuing.
Section 6.06. LIMITATION ON SUITS. No Holder of any Securities of
any series then Outstanding shall have any right by virtue of or by availing of
any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture of the
Securities or for the appointment of a receiver or trustee or similar official,
or for any other remedy hereunder or thereunder, unless: (1) the Holder gives
written notice to the Trustee of a continuing Event of Default; (2) the Holders
of at least 25% in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request to the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder; (3) such
Holder or Holders offer and, if requested, provide to the Trustee reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; (4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; and (5) during such 60-day period
the Holders of a majority in aggregate principal amount of the Securities of
such series then Outstanding do not give the Trustee a direction which is
inconsistent with the request; it being understood and intended, and being
expressly covenanted by the Holder of every Security of such series with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as to
any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Section 6.07. RIGHT OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provisions in this Indenture, the right of any Holder of any Security
to receive payment of the principal of and interest, if any, on such Security,
on or after the respective due dates expressed in such Security, or, if
applicable, to convert such Security as provided in Article Thirteen, or to
institute suit for the enforcement of any such payment on or after such
respective dates or for the enforcement of any such right to convert shall not
be impaired or affected without the consent of such 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 TLGI or any other obligor on the Securities 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 Securities 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 in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to TLGI (or any other obligor on the Securities of such
series), its or their creditors or its or 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
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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 Securities 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. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.10 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the trustee pursuant to Section 7.08 except as a result of its
negligence or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of the
installments of such interest, if any, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, if any, at the rate borne by the Securities of
such series, such payment to be made ratably to the Persons entitled
thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series for
principal (including any premium, if any) and interest, if any, with
interest on the overdue principal and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest, if
any, at the rate borne by the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amounts so due and
unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest, or of any other installment of interest, or of any Security over
any other Security, ratably to the aggregate of such principal such series
for principal (including any premium, if any) and accrued and unpaid
interest; and
FOURTH: To the payment of any surplus then remaining to TLGI, its
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by TLGI to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of TLGI shall be entitled, in case of a default hereunder, to any
benefit of this Indenture, except after prior payment in full of the principal
of all Securities of any series then Outstanding and of all claims for interest
not so transferred, pledged, kept alive, extended, purchased or funded.
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The Trustee, upon prior written notice to TLGI, may fix a record date
and payment date for any payment to Noteholders pursuant to this Section 6.10.
Section 6.11. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, 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, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.11 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders, holding in the aggregate more than ten percent in
principal amount of the Securities of any series then Outstanding, or to any
suit instituted by any Securityholders for the enforcement of the payment of the
principal of, or interest, if any, on any Security against TLGI on or after the
due date expressed in such Security or for the enforcement of the right to
convert any Security in accordance with Article Thirteen. The provisions of
Section 315(e) of the Trust Indenture Act of 1939 are expressly excluded
herefrom.
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 Security 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, TLGI, 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.
Section 6.13. REMEDIES CUMULATIVE AND CONTINUING. All powers and
remedies given by this Article Six to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
Provisions of Section 6.06, every power and remedy given by this Article Six or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
ARTICLE SEVEN
TRUSTEE
Section 7.01. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT.
(a) In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
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their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred;
(1) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations 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 the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case
of any such statements, certificates or opinions which by any
provision hereof are specifically required to be furnished by 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;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 6.05 relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
(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. CERTAIN RIGHTS OF THE TRUSTEE. Subject to Section 7.01
hereof and the provisions of TIA Section 315:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee need not investigate any fact or
matter stated in the document.
(b) any request, direction, order or demand of TLGI mentioned herein
shall be sufficiently evidenced by an Officer's Certificate or Issue Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of TLGI, and
before the Trustee acts or refrains from acting, it may consult with counsel and
may require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Sections 11.04 and 11.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(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
written advice or Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance thereon in
accordance with the advice or Opinion of Counsel.
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or documentation requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by
TLGI or, if paid by the Trustee or any predecessor Trustee, shall be repaid by
TLGI upon demand, and the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(g) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 6.01), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby.
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Section 7.03. TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS,
ETC.
The Trustee, any Paying Agent, Registrar or any other agent of TLGI or
the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 7.11 and 7.12 and TIA Sections
310 and 311, may otherwise deal with TLGI 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
Securities or of any prospectus used to sell the Securities, it shall not be
accountable for the use or application by TLGI of any of the Securities or of
the proceeds thereof, 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 Securities other than the Trustee's
certificate of authentication.
Section 7.05. NOTICE OF DEFAULT. The Trustee shall, within 90 days
after the occurrence of a Default or an Event of Default , with respect to
Securities of any series then Outstanding, mail to all Holders of Securities of
such series, as the names and the addresses of such Holders appear upon the
Security register, notice of all Default or Event of Default known to the
Trustee with respect to such series, unless such defaults shall have been cured
before the giving of such notice; PROVIDED, HOWEVER, that, except in the case of
a Default in the payment of the principal of, premium, if any, or interest on
any of the Securities, or in the payment or satisfaction of any sinking fund or
other purchase obligation, 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. Subject to the provisions of
Section 8.04 hereof, 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. Neither the Trustee nor any agent of TLGI or the
Trustee shall be under any liability for interest on any moneys received by it
hereunder, except as the Trustee may agree with TLGI.
Section 7.07. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA Section 313(a) shall have occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such May 15 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to TLGI and filed with the Commission and each securities exchange, if
any, on which the Securities are listed.
TLGI shall notify the Trustee in writing if the Securities become
listed on any securities exchange.
Section 7.08. COMPENSATION AND INDEMNITY.
TLGI covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and TLGI covenants and agrees to pay or reimburse the
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Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursements or advance as may arise from its negligence or bad faith.
TLGI also covenants to indemnify the Trustee and each predecessor
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and its rights or duties hereunder, including the costs and expenses
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify TLGI promptly of any claim asserted against
the Trustee for which it may seek indemnity. TLGI shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and TLGI shall pay the reasonable fees and expenses of such counsel.
TLGI need not pay for any settlement made without its prior written consent.
TLGI 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 TLGI in this Section 7.08, the
Trustee shall have a Lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except funds held in trust
for the benefit of the Holders of particular Securities to pay principal of,
premium, if any, or interest on particular Securities, and the Securities are
hereby subordinated to such senior claim. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section
6.01 or in connection with Article Six hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for the
services in connection therewith are intended to constitute expenses of
administration under any bankruptcy law.
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 TLGI 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 TLGI pursuant to Article Eight and/or the termination of
this Indenture.
Section 7.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to TLGI and by mailing notice of such
resignation to the Holders of then Outstanding Securities of each series
affected at their addresses as they shall appear on the registry books. Upon
receiving such notice of resignation, TLGI shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for
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the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
7.13 with respect to any series of Securities after written request
therefor by TLGI or by any Securityholder who has been a bona fide Holder
of a Security or Securities of such series at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.11 and shall fail to resign after written request
therefor by TLGI or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, TLGI may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.9, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deed proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to TLGI the evidence provided
for in Section 7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 7.09 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
7.14.
Section 7.10. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.13 and eligible
under the provisions of Section 7.11, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
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In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of Trustee shall
have; provided that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 7.11. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any state or the District of Columbia having a combined capital
and surplus of at least $50,000,000 and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal, state or District of Columbia authority, or a corporation or other
Person permitted to act as trustee by the Commission. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 7.11, 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. No obligor upon the
Securities or any Affiliates of such obligor shall serve as Trustee upon the
Securities. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.11, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.09.
Section 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST TLGI.
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.
Section 7.13 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest (as
defined in subsection (c)), then within 90 days after ascertaining that it has
such conflicting interest, and if the default (as defined in subsection (c)) to
which such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall
either eliminate such conflicting interest or, except as otherwise provided
below, resign, and TLGI shall take prompt steps to have a successor appointed in
the manner provided in Section 7.09.
(b) If the Trustee shall fail to comply with the provisions of
subsection (a), the Trustee shall, within 10 days after the expiration of such
90-day period, transmit notice of such failure to the Securityholders in the
manner and to the extent provided in Section 4.4 and, subject to the provisions
of Section 5.9, unless the Trustee's duty to resign is stayed as provided below,
any Securityholder who has been a bond fide holder of Securities for at least
six months may, on behalf of himself and all other similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee, and the
appointment of a successor, if the Trustee fails, after written request thereof
by such Securityholder, to comply with the provisions of subsection (a).
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Except in the case of a default in the payment of the principal of or
interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 7.13 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(ii) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of Holders of the Securities.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. Any
resignation of the Trustee shall become effecting only upon the appointment of
a successor trustee in accordance with the provisions of Section 7.09 and such
successor's acceptance of such an appointment.
(c) For the purposes of this Section 7.13, the Trustee shall be
deemed to have a conflicting interest with respect to Securities of any series
if the Securities of such series are in default (as determined in accordance
with the provisions of Section 5.1, but exclusive of any period of grace or
requirement of notice) and
(i) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any other series or is a trustee under another
indenture under which any other securities, or certificates of interest or
participation in any other securities, of TLGI are outstanding, unless such
other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture; provided
that there shall be excluded from the operation of this paragraph, this
Indenture with respect to the Securities of any other series and there
shall also be so excluded any other indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of TLGI are outstanding if (x) this Indenture is and, if
applicable, this Indenture and any series issued pursuant to this Indenture
and such other indenture or indentures are wholly unsecured and rank
equally, and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act of 1939, unless the Commission shall have
found and declared by order pursuant to Section 305(b) or Section 307(c) of
the Trust Indenture Act of 1939, that differences exist between the
provisions of this Indenture with respect to Securities of such series and
one or more other series, or the provisions of this Indenture and the
provisions of such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to Securities
to such series and such other series or under this Indenture or such other
indenture or indentures, or (y) TLGI shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to Securities
of such series and such other series, or under this Indenture and such
other indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to Securities of such series and such
other series, or under this Indenture and such other indentures;
(ii) the Trustee or any of its directors or executive officers is an
underwriter for TLGI;
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(iii) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common control
with an underwriters for TLGI;
(iv) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of TLGI,
or of an underwriter (other than the Trustee itself) for TLGI who is
currently engaged in the business of underwriting, except that (x) one
individual may be a director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both, of TLGI, but may
not be at the same time an executive officer or both the Trustee and TLGI;
(y) if and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of TLGI, and (z) the
Trustee may be designated by TLGI or by any underwriter for TLGI to act in
the capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent, or depositary, or in any other similar capacity, or,
subject to the provisions of subsection (c)(i) of this Section, to act as
trustee, whether under an indenture or otherwise;
(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by TLGI or by any director, partner or executive
officer thereof, or 20% or of such voting securities is beneficially owned,
collectively, by any two or more of such person; or 10% or more of the
voting securities of the Trustee is beneficially owned either by an
underwriter for TLGI or by any director, partner, or executive officer
thereof, or is beneficially owned, collectively, by any two or more such
persons;
(vi) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, (x) 5% or more of the
voting securities of 10% or more of any other class of security of TLGI,
not including the Securities issued under this Indenture and securities
issued under any other indenture under which the Trustee is also trustee,
or (y) 10% or more of any class of security of an underwriter for TLGI;
(vii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10% or
more of the voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, TLGI;
(viii)the Trustee is the beneficial owner of, or holds as collateral
Security for an obligation which is in default, 10% or more of any class
of security of any person who, to the knowledge of the Trustees, owns 50%
or more of the voting securities of TLGI;
(ix) the Trustee owns on the date of default (as determined in
accordance with the provisions of Section 5.1, but exclusive of any period
of grace or requirement of notice) or on any anniversary of such default
while such default remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or more
of the voting securities, or of any class security, of any person, the
beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraphs (vi), (vii) or (viii)
of this subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator, or
testamentary trustee of an estate which included them, the provisions of
the preceding sentence shall not apply, for a period of two years from the
date of such acquisition, to the extent that such securities included in
such estate do not exceed 25% of such voting securities of 25% of any such
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class of security. Promptly after the dates of any such default and
annually in each succeeding year that the Securities remain in default, the
Trustee shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If TLGI fails to make payment
in full of principal of or interest on any of the Securities when and as
the same becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of this holdings of such
Securities in any of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph, all such Securities so held by the
Trustee, with sole or joint control over such Securities vested in it,
shall, but only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of paragraphs
(vi), (vii) and (viii) of this subsection; or
(x) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 6.13(b), the Trustee shall or shall become
creditor of TLGI.
For purposes of subsection (c)(i), the term "series of securities" or
"series" means a series, class or group of securities issuable under an
indenture pursuant to whose terms holders of one such series may vote to direct
the Trustee, or otherwise take action pursuant to a vote of such holders,
separately from holders of another such series; provided, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in subsections (c)(v) to (ix),
inclusive, of this Section 7.13 shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control of the purposes
of subsections (c)(iii) or (vii) of this Section 7.13.
For the purposes of subsections (c)(vi), (vii), (viii) and (ix) of
this Section 7.13, only,
(i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies, or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness;
(ii) an obligation shall be deemed to be in default when a default in
payment of principal shall have continued for 30 days or more and shall not
have been cured; and
(iii) the Trustee shall not be deemed to be the owner or holder of
(x) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (y) any Security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (z) any security
which it holds as agent for collection, or as custodian, escrow agent, or
depositary, or in any similar representative capacity.
Except as provided above, the word "security" or "securities" as used
in this Section 7.13 shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation
in any profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
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instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant to right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section 7.13:
(i) the term "underwriter" when used with reference to TLGI shall
mean every person who, within a one year period prior to the time as of
which the determination is made, was an underwriter of any security of TLGI
outstanding at the time of the determination;
(ii) the term "director" shall mean any director of a corporation or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated;
(iii) the term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof; as used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security;
(iv) the term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any Security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustee or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person;
(v) the term "Issuer" shall mean any obligor upon the Securities;
and
(vi) the term "executive officer" shall mean the president, every
vice president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentage of voting securities and other securities
specified in this Section 7.13 shall be calculated in accordance with the
following provisions:
(i) a specified percentage of the voting securities of the Trustee,
TLGI or any other person referred to in this Section 7.13 (each of whom is
referred to in this Section 7.13 (each of whom is referred to as a "person"
in this paragraph) means such amount of the outstanding voting securities
of such person as entitled the holder or holders thereof to cast such
specified percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in the
direction or management of the affairs of such person;
(ii) a specified percentage of a class of securities of a person
means such percentage amount of securities of the class outstanding;
(iii) the term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the number
of shares if relating to capital shares, and the number of units if
relating to any other kind of Security;
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(iv) the term "outstanding" means issued and not held by or for the
account for TLGI; the following securities shall not be deemed within the
meaning of this definition;
(A) securities of an issuer held in a sinking fund relating to
securities of TLGI of the same class;
(B) securities of an issuer held in a sinking fund relating to
another class of securities of TLGI, if the obligation evidenced by
such other class of securities is not in default as to principal or
interest or otherwise;
(C) securities pledged by TLGI thereof as security for an
obligation of TLGI not in default as to principal or interest or
otherwise; and
(D) securities held in escrow if placed in escrow by TLGI
thereof; provided, that any voting securities of an issuer shall be
deemed outstanding if any person other than TLGI is entitled to
exercise the voting rights thereof; and
(v) a security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided that, in the case of
secured evidences of indebtedness, all of which are issued under the single
indenture, differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such series
different classes and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity
dates thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
Section 7.14 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to TLGI and to its predecessor to an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective as such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, when like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of TLGI or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section 8.04, pay over
to the successor trustee all moneys at time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor
trustee, XXXX shall execute any and all instruments in writing for more fully
and certainly vesting in and confirming to such successor trustee all rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 7.08.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, TLGI, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
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indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 7.14 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 7.13 and eligible under the provisions of Section 7.11.
Upon acceptance of appointment by any successor trustee as provided in
this Section 7.14, TLGI shall give notice thereof to the Holders of Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 7.09. If TLGI fails to give such notice within ten days
after acceptance of appointment by the successor trustee, the successor trustees
shall cause such notice to be given at the expense of TLGI.
Section 7.15 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval TLGI an authenticating agent (the
"AUTHENTICATING AGENT") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.11.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a certificate of authentication
executed on behalf of the Trustee by such authenticating Agent. Such
authenticating Agent shall at all times be a corporation organized and doing
business under the laws the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,00,000 (determined
as provided in Section 7.11 with respect to the Trustee) and subject to
supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to TLGI. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to TLGI.
Upon receiving such notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 7.15 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to TLGI and TLGI shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.02. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. XXXX agrees to pay to
the Authenticating Agent for such series from time to time
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reasonable compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee.
Sections 7.02, 7.03, 7.04 and 10.03 shall be applicable to any
Authenticating Agent.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 SATISFACTION AND DISCHARGE OF INDENTURE. (A) If at any
time (a) TLGI shall have paid or caused to be paid the principal of and
interest, if any, on all the Securities Outstanding (other than Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.11) as and when the same shall have become due and
payable, or (b) TLGI shall have delivered to the Trustee for cancellation all
Securities theretofore authenticated (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.11); and if, in any such case, TLGI shall also pay or cause to be paid
all other sums payable hereunder by XXXX, then this Indenture shall cease to be
of further effect, and the Trustee, on demand of TLGI accompanied by an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the satisfaction and discharge contemplated by
this provision have been complied with, and at the cost and expense of TLGI,
shall execute proper instruments acknowledging such satisfaction and discharging
this Indenture. XXXX agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred, and to compensate the Trustee for
any services thereafter reasonably and properly rendered, by the Trustee in
connection with this Indenture or the Securities.
(B) If at any time (a) TLGI shall have paid or caused to be paid the
principal of and interest, if any, on all the Securities of any series
Outstanding (other than Securities of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section 2.11)
as and when the same shall have become due and payable, or (b) TLGI shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.11), or (c) in the case of any series of Securities with respect to
which the exact amount described in clause (ii) below can be determined at the
time of making the deposit referred to in such clause (ii), (i) all the
Securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) TLGI shall have irrevocably deposited or caused to be
deposited with the Trustee as funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of Securities of such
series, cash in an amount (other than moneys repaid by the Trustee or any Paying
Agent to TLGI in accordance with Section 8.04) or direct obligations of the
United States of America, backed by its full faith and credit ("U.S. GOVERNMENT
OBLIGATIONS"), maturing as to principal and interest, if any, at such times and
in such amounts as will insure the availability of cash, or 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 (A) the principal of and interest, if any, on
all Securities of such series on each date that such principal or interest, if
any, is due and payable, and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series; then TLGI shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of such
series on the date of the deposit referred to in clause (ii) above and the
provisions of this Indenture with respect to the Securities of such series shall
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no longer be in effect (except, in the case of clause (c) of this Section
8.01(B), as to (i) rights of registration of transfer and exchange of Securities
of such series, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of Securities of such
series to receive payments of principal thereof and interest, if any, thereon
upon the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders of Securities of such series to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, (vi) the
obligations of TLGI under Section 4.02 with respect to Securities of such series
and (vii) the obligations of TLGI under Article Thirteen) and the Trustee, on
demand of TLGI accompanied by an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of TLGI, shall
execute proper instruments acknowledging the same.
(C) The following provisions shall apply to the Securities of each
series (other than Securities that are convertible into Common Stock) unless
specifically otherwise provided in a Board Resolution, Officer's Certificate or
indenture supplement hereto provided pursuant to Section 2.01. In addition to
discharge of this Indenture pursuant to the next preceding paragraph, in the
case of any series of Securities with respect to which the exact amount
described in subparagraph (a) below can be determined at the time of making the
deposit referred to in such subparagraph (a), TLGI shall be deemed to have paid
and discharged the entire indebtedness on all the Securities of such a series on
the 91st day after the date of the deposit referred to in subparagraph (a)
below, and the provisions of this Indenture with respect to the Securities of
such series shall no longer be in effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
of Securities of such series to receive mandatory sinking fund payments, if any,
(iv) the rights, obligations, duties and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them, (vi) the obligations of TLGI under Section 4.02 with respect to
Securities of such series and (vii) the obligations of TLGI under Article
Thirteen) and the Trustee, on demand of TLGI accompanied by an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with, and at the
cost and expense of TLGI, shall execute proper instruments acknowledging the
same, if
(a) with reference to this provision TLGI has irrevocably deposited
or caused to be irrevocably deposited with the Trustee as funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of Securities of such series (i) cash in an amount, or (ii)
U.S. Government Obligations, maturing as to principal and interest, if
any, at such times and in such amounts as will insure the availability of
cash, or (iii) 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 (A) the
principal of and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, if due and payable, and (B)
any mandatory sinking fund payments on the dates on which such payments are
due and payable in accordance with the terms of this Indenture and the
Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which TLGI is a
party or by which it is bound; and
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(c) TLGI has delivered to the Trustee an Opinion of Counsel based on
the fact that (x) TLGI has received from, or there has been published by,
the Internal Revenue Service a ruling or (y), since the date hereof, there
has been a change in the applicable United States federal income tax law,
in either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the
same amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred.
Section 8.02. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS; REPAYMENT.
TLGI shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.01 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 Securities of such
series.
Anything in Section 8.01 to the contrary notwithstanding, the Trustee
shall deliver or pay to TLGI from time to time upon the request, in writing, by
TLGI any money or U.S. Government Obligations held by it as provided in
Section 8.01 above which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
Section 8.03. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT
OF SECURITIES. Subject to Section 8.04, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 8.01 shall be held
in trust, and such moneys and all moneys from such U.S. Government Obligations
shall be applied by it to the payment, either directly or through any Paying
Agent (including TLGI acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys need not be segregated from other funds except to the extent
required by law. The Trustee and any Paying Agent shall promptly pay to TLGI,
upon the written request of TLGI, any excess moneys or U.S. Government
Obligations held by them at any time, including all moneys deposited with the
Trustee pursuant to Section 8.01(B) and held by it or any Paying Agent for the
payment of Securities subsequently converted.
Section 8.04. REPAYMENT TO TLGI.
Subject to Sections 7.08 and 8.01, the Trustee shall promptly pay to
TLGI, upon receipt by the Trustee of an Officers' Certificate, any excess money,
determined in accordance with Section 8.01 or 8.02, held by it at any time. Any
moneys deposited with or paid to the Trustee or any Paying Agent for the payment
of the principal of or interest, if any, on any Security of any series and not
applied but remaining unclaimed for two years after the date upon which such
principal or interest, if any, shall have become due and payable, shall, upon
the written request of TLGI and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to TLGI by the Trustee for such series or such Paying Agent, and the
Holder of the Securities of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to TLGI for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease.
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In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys then held by any Paying
Agent under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of TLGI, be repaid to it or paid to the Trustee
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
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 TLGI's obligations under this Indenture and the Securities of such
series 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 TLGI has made any payment of principal of, premium,
if any, or interest on any Securities of such series because of the
reinstatement of its obligations, TLGI shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS.
TLGI, when authorized by a resolution of the Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of the execution thereof) for one or more of the following purposes:
(a) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provisions as to TLGI may deem
necessary or desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities;
(b) to evidence the succession of another corporation to TLGI, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of TLGI pursuant to Article Five;
(c) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02 and to provide for adjustment of conversion
rights pursuant to Section 13.05;
(d) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the
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provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, pursuant to
the requirements of Section 7.14; and
(f) to add to the covenants of TLGI such further covenants,
restrictions, conditions or provisions as TLGI and the Trustee shall consider to
be for the protection of the Holders of all or any series of Securities (and if
such covenants, restrictions, conditions or provisions are to be for the
protection of less than all series of Securities, stating that the same are
expressly being included solely for the protection of such series), and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided, in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such Event of Default.
The Trustee is hereby authorized to join with TLGI in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 9.01 may be executed without the consent of the Holders of any of the
Securities then Outstanding, notwithstanding any of the provisions of Section
9.02.
Notwithstanding the above, the Trustee and TLGI may not make any
change that adversely affects the rights of any Holders hereunder. TLGI shall
be required to deliver to the Trustee an Opinion of Counsel stating that any
such change made pursuant to paragraph (a) or (f) of this Section 9.01 does not
adversely affect the rights of any Holder.
Section 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS.
With the consent (evidenced as provided in Article Ten) of the Holders
of not less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, TLGI, when
authorized by a resolution of the Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest, if
any, thereon (or, in the case of an Original Issue Discount Security, reduce the
rate of accrual of original issue discount thereon), or reduce or alter the
method of computation of any amount payable on redemption, repayment or purchase
by the Company thereof (or the time at which any such redemption, repayment or
purchase may be made), or make the principal thereof (including any amount in
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respect of original issue discount), or interest, if any, thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms of the Securities, or reduce the portion of the principal amount
of an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 6.01 or the amount
thereof provable in bankruptcy pursuant to Section 6.02, or impair or affect the
right of any Securityholder to institute suit for the payment or conversion
thereof or materially and adversely affect the right to convert the Securities
in accordance herewith or, if the Securities provide therefor, any right of
repayment or purchase at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 9.02 to permit the Trustee and
TLGI to execute supplemental indentures pursuant to Sections 5.01, 9.01 and
13.05.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of TLGI, accompanied by a copy of a resolution of the
Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
secretary or an assistant secretary of TLGI authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities and aforesaid and other documents,
if any required by Section 10.01, the Trustee shall join with TLGI in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by TLGI and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.02, the
Trustee shall give notice thereof to the Holders of then Outstanding Securities
of each series affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the Security
register. Any failure of TLGI to give such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment of or supplement to this Indenture, or each series of
the Securities shall comply with the TIA as then in effect.
Section 9.04. EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective
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rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, TLGI and the Holders of Securities of each series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes and every Holder of Securities of each series affected thereby
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security
of any series, the Trustee shall (in accordance with the specific direction of
TLGI) request the Holder of the Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of TLGI) in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken by Securityholders and return
it to the Holder. Alternatively, if TLGI or the Trustee so determines, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and TLGI, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by TLGI, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
Failure to make the appropriate notation or issue a new Security 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 Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture, that it is
not inconsistent herewith and that it will be valid and binding upon TLGI in
accordance with its terms.
ARTICLE TEN
CONCERNING THE SECURITYHOLDERS
Section 10.01 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 7.01 and 7.02) conclusive in favor of the Trustee and
TLGI, if made in the manner provided in this Article Ten.
Section 10.02 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 7.01 and 7.02, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following manner:
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(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
Section 10.03 HOLDERS TO BE TREATED AS OWNERS. TLGI, the Trustee and
any agent of TLGI or the Trustee may deem and treat the Person in whose name any
Security shall be registered upon the Security register for such series as the
absolute owner of such Security (whether not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest, if any, on such Security and for
all other purposes; and neither TLGI nor the Trustee nor any agent of TLGI or
the Trustee shall be affected by any notice to the contrary.
Section 10.04 SECURITIES OWNED BY TLGI DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by TLGI or
any other obligor on the Securities with respect to which such determination is
being made or by any Affiliate of TLGI or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not TLGI or any other
obligor upon the Securities or any Affiliate of TLGI or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, TLGI shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by TLGI to be owned or held by or for the account of
any of the above described Persons; and, subject to Sections 7.01 and 7.02, the
Trustee shall be entitled to accept such Officer's Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purposes of any such determination.
Section 10.05 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 10.01,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Ten, revoke such action so far
as concerns such Security, provided that such revocation shall not become
effective until three business days after such filing. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in
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regard thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon TLGI, the
Trustee and the Holders of all the Securities affected by such action.
Section 10.06 RECORD DATE FOR CONSENTS AND WAIVER. TLGI may, but
shall not be obligated to, direct the Trustee to establish a record date for
the purpose of determining the Persons entitled to (i) waive any past default
with respect to the Securities of such series in accordance with Section 6.05 of
this Indenture, (ii) consent to any supplemental indenture in accordance with
Section 9.02 of this Indenture, or (iii) waive compliance with any term,
condition or provision of any covenant hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and any such
Persons, shall be entitled to waive any such past default, consent to any such
supplemental indenture or waive compliance with any such term, condition or
provision, whether or not such Holder remains a Holder after such record date;
provided, however, that unless such waiver or consent is obtained from the
Holders, or duly designated proxies, of the requisite principal amount of
Outstanding Securities of such series prior to the date which is the 180th day
after such record date, any such waiver or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939.
If and to the extent that any provision of this Indenture Limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, or
is deemed applicable to this Indenture by virtue of the provisions of this Trust
Indenture Act of 1939, such required provision shall control.
Section 11.02. NOTICES.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on TLGI, or as required pursuant to the Trust Indenture Act of
1939, may be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of TLGI is filed by TLGI with the Trustee) to TLGI at 00 Xxxx
XxxxxXxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: ___________, with a
copy to: The Xxxxxx Group Inc., 0000 Xxxxxxx Xxx., Xxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx V56358. Any notice, direction, request or demand by TLGI or any Holder
of Securities to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with TLGI) to Fleet National Bank, 000 Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: ____________.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to
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receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Xxxxxx shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver. In case, by reason of the
suspension of or irregularities in regular mail service, it shall be
impracticable to mail any notice when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
sufficient notice.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
addressed as follows:
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 Securities.
The obligors, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
Section 11.04. OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN.
Upon any application or demand by TLGI to the Trustee to take any
action under any of the provisions of this Indenture, or as required pursuant to
the Trust Indenture Act of 1939, TLGI shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 3.03(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
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.
Any certificate, statement or opinion of an officer of TLGI may be
based, insofar as it related to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
TLGI, upon the certificate, statement or opinion of or representations by an
officer or officers of TLGI, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
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Any certificate, statement or opinion of an officer of TLGI or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant or firm of
accountants in the employ of TLGI, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations with respect to
the accounting matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm in independent.
Section 11.05. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS.
If the date of maturity of principal of or interest, if any, on the
Securities of any series or the date fixed for redemption, purchase or repayment
of any such Security or at the last date for conversion of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, if any, or principal need not
be made on such date and such conversion need not be made by such date, but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, purchase or
repayment or the last date of such conversion, and, in the case of payment, no
interest shall accrue for the period after such date.
Section 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
Section 11.07. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE, AND THE
SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF APPLICABLE FEDERAL LAW. The Trustee, TLGI and the Holders agree to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Indenture or the Securities.
Section 11.08. CONSENT TO SERVICE OF PROCESS.
TLGI irrevocably (a) agrees that any legal suit, action or proceeding
arising out of or based upon this Indenture and the Securities issued hereunder
may be instituted in any federal or state court located in the City of New York,
(b) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding, and
(c) submits to the nonexclusive jurisdiction of such courts in any such suit,
action or proceeding. TLGI has appointed Xxxxxx, Marrin, Xxxxxxx & Xxxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxx,
Esq., as its authorized agent (the "AUTHORIZED AGENT") upon whom process may be
served in any suit, action or proceeding arising out of or based on this
Indenture which may be instituted in any federal or state court located in The
City of New York, expressly consents to the jurisdiction of any such court in
respect of any suit, action or proceeding, and waives any other requirements of
or objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable. XXXX agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
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continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to TLGI
shall be deemed, in every respect, effective service of process upon TLGI.
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 TLGI or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 11.10. PARTNERS, INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF TLGI EXEMPT FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such or against any
past, present or future director, officer, employee, stockholder or Affiliate,
as such, of TLGI, or any partner of TLGI or of any successor, either directly or
through TLGI or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
Section 11.11. SUCCESSORS.
All agreements of TLGI in this Indenture and the Securities 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. SEVERABILITY.
In case any provision in this Indenture or the Securities 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. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND HOLDERS OF SENIOR INDEBTEDNESS AND OF SECURITIES.
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Nothing in this Indenture or in the Securities, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto
and their successors and the Holders of the Securities, any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provisions
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors, the holders of the Holders of the
Securities.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.01 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified, as contemplated by Section 2.01 for
Securities of such series.
Section 12.02 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of TLGI shall be given by mailing notice of such
redemption by first-class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest, if any, (or, in the
case of Original Issue Discount Securities, original issue discount) accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest, if any, thereon or on the portions thereof to
be redeemed (or, in the case of Original Issue Discount Securities, original
issue discount) will cease to accrue and, if applicable, shall also specify the
Conversion Price then in effect and the date on which the right to convert such
Securities or the portions thereof to be redeemed will expire. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of TLGI shall be given by TLGI or, at TLGI's request, by the Trustee
in the name and at the expense of TLGI.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.02, TLGI will deposit with the Trustee or
with one or more Paying Agents (or, if TLGI is acting as its own paying agent,
set aside, segregate and hold in trust as provided in Section 2.09) an amount of
money sufficient to redeem on the redemption date all the Outstanding Securities
of such series so called for redemption (other than those theretofore
surrendered for conversion into Common Stock and deemed not to be Outstanding
hereunder) at the appropriate redemption price, together with accrued interest,
if any,
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to the date fixed for redemption on all the Outstanding Securities of such
series so called for redemption (other than those theretofore surrendered for
conversion into Common Stock and deemed not to be Outstanding hereunder). If
any Security called for redemption is converted pursuant hereto, any moneys
deposited with the Trustee or any Paying Agent or so segregated and held in
trust for the redemption of such Security shall be paid to TLGI upon TLGI's
request, or, if then held by TLGI, shall be discharged from such trust. TLGI
will deliver to the Trustee at least 30 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee) an
Officer's Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of TLGI prior to the
expiration of any restriction on such redemption, TLGI shall deliver to the
Trustee, prior to the giving of any notice of redemption to Holders pursuant to
this Section 12.02, an Officer's Certificate stating that such restriction has
been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify TLGI in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series 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 the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed. If any Security selected for
partial redemption is surrendered for conversion after such selection, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Upon any redemption of less than all the
Securities of a series, for purposes of selection for redemption TLGI and the
Trustee may treat as Outstanding Securities surrendered for conversion during
the period of 15 days next preceding the mailing of a notice of redemption, and
need not treat as Outstanding any Security authenticated and delivered during
such period in exchange for the unconverted portion of any Security converted in
part during such period.
Section 12.03 PAYMENTS OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless TLGI shall default in the payment
of such Securities at the redemption price, together with interest, if any,
accrued to said date) interest (or, in the case of Original Issue Discount
Securities, original issue discount) on the Securities or portions of Securities
so called for redemption shall cease to accrue, and such Securities shall cease
from and after the date fixed for redemption (unless an earlier date shall be
specified in a Board Resolution, Officer's Certificate or executed supplemental
indenture referred to in Sections 2.02 and 2.01 by or pursuant to which the form
and terms of the Securities of such series were established) to be convertible
into Common Stock, and, except as provided in Sections 7.06 and 8.04, to be
entitled to any other benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by TLGI at the applicable redemption price,
together with interest, if any, accrued thereon on the date fixed for
redemption; provided that payment of interest, if any, becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.01 and 2.07 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security, and such Security shall remain convertible
into Common Stock until the redemption price of such Security (together with
such interest thereon) shall have been paid or duly provided for.
Upon presentation of any Security redeemed in part only, TLGI shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expenses of TLGI, a new Security or Securities of such
series and of like tenor, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
Section 12.04 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least 45 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) TLGI or (b) a Person specifically identified in
such written statement as an Affiliate of TLGI.
Section 12.05 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, TLGI may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by TLGI or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by TLGI and delivered to the Trustee for
cancellation pursuant to Section 2.12, (b) receive credit for Securities (not
previously so credited) converted into Common Stock and so delivered to the
Trustee for cancellation, (c) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section 2.09, or
(d) receive credit for Securities of such series (not previously so credited)
redeemed by TLGI through any optional redemption provision contained in the
terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, TLGI will deliver to the Trustee an Officer's Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured
or otherwise ceased to exist) and are continuing, and (d) stating whether or not
TLGI intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which TLGI intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in
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order for the Issue to be entitled to credit therefor as aforesaid which have
not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.12 to the Trustee with such Officer's
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officer's Certificate shall be irrevocable and upon its receipt by the
Trustee TLGI shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure to TLGI, on or before any such
60th day, to deliver such Officer's Certificate and Securities (subject to the
parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as such date, the irrevocable election of TLGI (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof, and (ii) that TLGI will make no
optional sinking fund payment with respect to such series as provided in this
Section 12.05.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 or a lesser sum if TLGI shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and TLGI makes no such request, then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.02, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by TLGI) inform TLGI of the
serial numbers of the Securities of such series (or portions thereof) so
selected. The Trustee, in the name and at the expense of TLGI (or TLGI, if it
shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 12.02 (and with the effect provided in Section 12.03) for the redemption
of Securities of such series in part at the option of TLGI. The amount of any
sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section 12.05. Any and all sinking fund moneys held
on the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of and interest, if any, on, the Securities of such series at
maturity.
On or before each sinking fund payment date, TLGI shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest, if
any, accrued to the date fixed for redemption of Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from TLGI a sum sufficient for such redemption. Except as aforesaid,
any moneys in the sinking fund for such series at the time when any such default
or Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Seven and held for the payment of
all such Securities. In case such Event of Default shall have been waived as
provided in
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Section 6.05 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
12.05 to the redemption of such Securities.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 13.01 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are
convertible into Common Stock or, if so provided in a Board Resolution,
Officer's Certificate or executed supplemental indenture referred to in Sections
2.01 and 2.02 by or pursuant to which the form and terms of the Securities of
such series were established, cash in lieu thereof, as and to the extent
provided by the terms of the Securities of such series.
Section 13.02 EXERCISE OF CONVERSION PRIVILEGE. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security to the Conversion Agent at any time during usual
business hours at its office or agency maintained for the purpose as provided in
this Indenture, accompanied by a fully executed written notice, in substantially
the form set forth on the reverse of the Security, that the Holder elects to
convert such Security or a stated portion thereof constituting a multiple of
$1,000 in principal amount, and, if such Security is surrendered for conversion
during the period between the close of business on any record date for such
Security and the opening of business on the related interest payment date (or on
such interest payment date), accompanied also by payment of an amount equal to
the interest payable on such interest payment date on the portion of the
principal amount of the Security being surrendered for conversion. Such notice
shall also state the name or names (and address) in which the certificate or
certificates for shares of common Stock shall be issued (or to whom payment in
cash in lieu of Common Stock shall be made). Securities surrendered for
conversion shall (if so required by TLGI or the Conversion Agent) be duly
endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to TLGI and the Conversion Agent duly executed by,
the Holder or his attorney duly authorized in writing. As promptly as
practicable after the receipt of such notice and the surrender of such Security
as aforesaid, TLGI shall, subject to the provisions of Section 13.07, issue and
deliver at such office or agency to such Holder, or on his written order, a
certificate or certificates for the number of all shares of Common Stock
issuable on conversion of such Security in accordance with the provisions of
such Security and cash, as provided in Section 13.03, in respect of any fraction
of a share of Common Stock otherwise issuable upon such conversion or, if so
provided in a Board Resolution, Officer's Certificate or executed supplemental
indenture referred to in Sections 2.01 and 2.02 by or pursuant to which the form
and terms of the Securities of such series were established, cash in lieu of
shares of Common Stock. Such conversion shall be at the Conversion Price in
effect, and shall be deemed to have been effected, immediately prior to the
close of business on the date (herein called the "DATE OF CONVERSION") on which
such notice in proper form shall have been received by the Conversion Agent and
such Security shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable, if any, upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that such surrender on any date
when the stock transfers books of TLGI shall be closed shall constitute the
Person or Persons in whose name or names the certificate or certificates for
such shares are to be issued, if any, as the record holder or holders thereof
for all purposes at the opening of business on the next succeeding day on which
such stock transfer books are open but such conversion shall nevertheless be at
the Conversion Price in effect at the close of business on the date when such
Security shall have been so surrendered with the conversion notice
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in proper form. In the case of conversion of a portion, but less than all, of a
Security, TLGI shall execute, and the Trustee shall authenticate and deliver to
the Holder thereof, at the expense of TLGI, a Security or Securities in the
aggregate principal amount of the unconverted portion of the Security
surrendered. Except as otherwise expressly provided in this Indenture, no
payment or adjustment shall be made for interest accrued on any Security (or
portion thereof) converted or for dividends or distributions on any Common Stock
issued upon conversion of any Security. The right, if any, of a Holder of any
Security to cause TLGI to redeem, purchase or repay such Security shall
terminate upon receipt by TLGI of any notice of conversion of such Security.
Section 13.03 FRACTIONAL INTERESTS. No fractions of shares or script
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fraction of a share of Common Stock would,
except for the provisions of this Section 13.03, be issuable on the conversion
of any Security or Securities, TLGI shall make payment in lieu thereof in cash
equal to the value of such fraction computed on the basis of the Last Sale Price
of one share of Common Stock on the most recent Trading Day prior to the Date of
Conversion. "LAST SALE PRICE" on any Trading Day shall mean (i) the closing
price regular way (or, if no closing price is reported the average of the bid
and asked prices) as reported on the New York Stock Exchange Composite Tape, or
(ii) if on such Trading Day the Common Stock is not listed or admitted to
trading on such exchange, the closing price regular way (or, if no closing price
is reported the average of the bid and asked prices) on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or (iii) if not listed or admitted to trading on any national securities
exchange on such Trading Day, then the average of the closing bid and asked
prices as reported through the National Association of Securities Dealers, Inc.
on its NASDAQ National Market System or NASDAQ System or a similar organization
if NASDAQ is no longer reporting information, or (iv) if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
such National Market System or NASDAQ System on such Trading Day, then the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by TLGI for that purpose or (v) if not quoted by any such organization on such
Trading Day, the fair value of such Common Stock on such Trading Day, as
determined by the Board of Directors. The term "TRADING DAY" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on any of the above-mentioned exchanges or in such
markets.
Section 13.04 ADJUSTMENT OF CONVERSION PRICE. The conversion price
or rate (herein called the "CONVERSION PRICE") for a series of Securities
shall be as set forth in a Board Resolution, Officer's Certificate or
executed supplemental indenture referred to in Sections 2.01 and 2.02 by or
pursuant to which the form and terms of the Securities of such series were
established, and, except as otherwise provided therein, shall be subject to
adjustment from time to time as follows:
(a) In case TLGI shall (1) pay a dividend or make a distribution in
shares of Common Stock on the Common Stock, (2) subdivide its outstanding
shares of Common Stock into a greater number of shares, (3) combine its
outstanding shares of Common Stock into a smaller number of shares,
(4) issue by reclassification of its Common Stock any shares of capital
stock of TLGI or (5) redeem any Associated Rights, the Conversion Price
in effect immediately prior to such action shall be adjusted so that the
Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other capital
stock of TLGI which he would have owned immediately following such action
had such Security been converted immediately prior thereto. An adjustment
made pursuant to this subsection (a) shall become
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effective immediately, except as provided in subsection (e) below, after
the record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If as a result of an
adjustment made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive
shares of two or more classes of capital stock (including shares of Common
Stock and other capital stock) of TLGI, the Board of Directors (whose
determination shall be conclusive and shall be described in a statement
filed with the Trustee) shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes of capital stock
or shares of Common Stock and other capital stock.
(b) In case TLGI shall issue rights or warrants to all holders of
Common Stock entitling them (for a period not exceeding 45 days from the
date of such issuance) to subscribe for or purchase shares of Common Stock
at price per share less than the current market price per share (as
determined pursuant to subsection (d) below) of the Common Stock on the
record date mentioned below, the Conversion Price shall be adjusted to a
price, computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date
of issuance of such rights or warrants by a fraction, of which
(2) the numerator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants,
immediately prior to such issuance, plus (B) the number of shares
which the aggregate offering price of the total number of shares so
offered for subscription or purchase would purchase at such current
market price (determined by multiplying such total number of shares by
the exercise price of such rights or warrants and dividing the product
so obtained by such current market price), and of which
(3) the denominator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants,
immediately prior to such issuance, plus (B) the number of additional
shares of Common Stock which are so offered for subscription or
purchase.
Such adjustment shall become effective immediately, except as provide
in subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case TLGI shall distribute to substantially all holders of
Common Stock, evidences of indebtedness, equity securities (including
equity interests in TLGI's Subsidiaries) other than Common Stock, or other
assets (other than cash dividends paid out of surplus of TLGI), or shall
distribute to substantially all holders of Common Stock rights or warrants
to subscribe for securities (other than those referred to in subsection (b)
above) then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d) below) of
the Common Stock on the record date mentioned below less then fair market
value (as determined by the Board of Directors, whose determination shall,
if made in good faith, be conclusive evidence of such fair market value) of
the portion of the assets so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of the Common
Stock. Such adjustment
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shall become effective immediately, except as provided in subsection (e)
below, after the record date for the determination of stockholders entitled
to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices for the 30 consecutive
Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 13.04 shall require that an
adjustment be made immediately following a record date, TLGI may elect to
defer the effectiveness of such adjustment (but in no event until a date
later than the effective time of the event giving rise to such adjustment),
in which case TLGI shall, with respect to any Security converted after such
record date and before such adjustment shall have become effective,
(i) defer paying any cash payment pursuant to Section 13.03 or issuing to
the Holder of such Security the number of shares of Common Stock and other
capital stock of TLGI issuable upon such conversion in excess of the number
of shares of Common Stock and other capital stock of TLGI issuable
thereupon only on the basis of the Conversion Price prior to adjustment,
and (ii) not later than five Business Days after such adjustment shall have
become effective, pay to such Holder the appropriate cash payment pursuant
to Section 13.03 and issue to such Holder the additional shares of Common
Stock and other capital stock of TLGI issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and, provided further, that
adjustment shall be required and made in accordance with the provisions of
this Article Thirteen (other than this subsection (f) not later than such
time as may be required in order to preserve the tax-free nature of a
distribution to the Holders of Securities or Common Stock. All
calculations under this Article Thirteen shall be made to the nearest cent
or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided,
TLGI shall promptly (i) file with the Trustee and each Conversion Agent an
Officer's Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (ii) mail or cause to be mailed a
notice of such adjustment to each Holder of Securities in the manner
provided in Section 11.04.
Anything in this Section 13.04 to the contrary notwithstanding, TLGI
shall be entitled to make such reductions in the Conversion Price, in addition
to those required by this Section 13.04, as it in its discretion shall determine
to be advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by TLGI
to its stockholders shall not be taxable.
Section 13.05 CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF
MERGER, CONSOLIDATION OR SALE OF ASSETS. If any of the following shall
occur, namely: (a) any consolidation or merger of TLGI as a result of which
the holders of Common Stock shall be entitled to receive stock, other
securities or other assets (including cash) with respect to or in exchange
for Common Stock; or (b) any sale, lease, exchange or other disposition of
all or substantially all of the property and assets of TLGI as an entirety,
then TLGI,
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or such successor or purchasing corporation, as the case may be, shall, as a
condition precedent to such consolidation, merger, sale, lease, exchange or
other disposition, execute and deliver to the Trustee a supplemental indenture
(which shall conform to the Trust Indenture Act of 1939 as in force at the date
of the execution thereof) providing that the Holder of each convertible Security
then Outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon or in connection with such consolidation, merger, sale, lease,
exchange or other disposition by a Holder of the number of shares of Common
Stock issuable upon conversion of such Security immediately prior to such
consolidation, merger, sale, lease, exchange or other disposition. Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
Thirteen. If, in the case of any such consolidation, merger, sale, lease,
exchange or other disposition, the stock or other securities and property
(including cash) receivable thereupon or in connection therewith by a holder of
shares of Common Stock includes shares of stock or other securities and property
(including cash) of a corporation other than the successor or purchasing
corporation, as the case may be, in such consolidation, merger, sale, lease,
exchange or other disposition, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing. The
provisions of this Section 13.05 shall similarly apply to successive
consolidations, mergers, sales, leases, exchanges or other dispositions.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities in the manner provided in Section 11.02.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale, lease, exchange or other disposition or to any adjustment to be
made with respect thereto, but, subject to the provisions of Sections 7.01 and
7.02, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officer's Certificate
(which TLGI shall be obligated to file with the Trustee prior to the execution
of any such supplemental indenture) with respect thereto.
Section 13.06 NOTICE OF CERTAIN EVENTS. If:
(a) TLGI shall declare a dividend (or any other distribution) payable
to the holders of Common Stock otherwise than in cash; or
(b) TLGI shall authorize the granting to all holders of Common Stock
of rights to subscribe for or purchase any shares of stock of any class or of
any other rights; or
(c) TLGI shall authorize any reclassification or change of the Common
Stock (other than a subdivision or combination of its outstanding shares of
Common Stock), or any consolidation or merger to which TLGI is a party and for
which approval of any stockholders of TLGI is required, or the sale, lease,
exchange or other disposition of all or substantially all the property and
assets of TLGI; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of TLGI;
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then, TLGI shall cause to be filed at the office or agency maintained for the
purpose of conversion of the Securities as provided in Section 4.02, and shall
cause to be mailed to each Holder of Securities, in the manner provided in
Section 11.02, at least 20 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one date
is specified), a notice stating the date on which (1) a record is expected to be
taken for the purpose of such dividend, distribution or rights, or if a record
is not to be taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights are to be determined, or
(2) such reclassification, change, consolidation, merger, sale, lease, exchange
or other disposition, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, lease, exchange or other
disposition, dissolution, liquidation or wind-up.
Section 13.07 TAXES ON CONVERSION. TLGI will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Common Stock on conversion of Securities
pursuant thereto; provided, however, that TLGI shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the Holder of
the Securities to be converted (or payment of cash in lieu thereof to a Person
other than such Holder) and no such issue or delivery (or payment) shall be made
unless and until the Person requesting such issue or delivery (or payment) has
paid to TLGI the amount of any such tax or has established, to the satisfaction
of TLGI, that such tax has been paid. TLGI extends no protection with respect
to any other taxes imposed in connection with conversion of Securities.
Section 13.08 TLGI TO PROVIDE STOCK. TLGI shall reserve, free from
preemptive rights, out of its authorized but unissued shares, sufficient shares
to provide for the conversion of convertible Securities from time to time as
such Securities are presented for conversion; provided, however, that nothing
contained herein shall be construed to preclude TLGI from satisfying its
obligations in respect to the conversion of Securities by delivery of
repurchased shares of Common Stock which are held in the treasury of TLGI.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of
any governmental authority under any federal or state law before such shares
may be validly issued or delivered upon conversion, then TLGI covenants that
it will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be; provided, however, that
nothing in this Section 13.08 shall be deemed to affect in any way the
obligations of TLGI to convert Securities into Common Stock as provided in
this Article Thirteen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, TLGI
will take all corporate action which may, in the opinion of counsel, be
necessary in order that TLGI may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
TLGI covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and non-assessable
by TLGI and free of preemptive rights.
Section 13.09 DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee, any Conversion Agent nor any agent of either shall at any
time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
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Conversion Price, or with respect to the Officer's Certificate referred to in
Section 13.04(g), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee, any Conversion Agent nor any agent of either shall be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property (including cash), which may at any time
be issued or delivered upon the conversion of any Security; and neither the
Trustee, any Conversion Agent nor any agent of either makes any representation
with respect thereto. Neither the Trustee, any Conversion Agent nor any agent
of either shall be responsible for any failure of TLGI to issue, register the
transfer of or delivery any shares of Common Stock or stock certificates or
other securities or property (including cash) upon the surrender of any Security
for the purpose of conversion or, subject to Sections 7.01 and 7.02, to comply
with any of the covenants of TLGI contained in this Article Thirteen.
Section 13.10 RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES. Any funds which at any time shall have been deposited by TLGI or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of and interest, if any, on any of the Securities and which shall not
be required for such purposes because of the conversion of such Securities, as
provided in this Indenture, shall forthwith after such conversion be repaid to
TLGI by the Trustee or such Paying Agent.
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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.
THE XXXXXX GROUP INC.
By:
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Name:
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Title:
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[CORPORATE SEAL]
Attest:
By:
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Title:
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FLEET NATIONAL BANK, as Trustee
By:
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Name:
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Title:
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[CORPORATE SEAL]
Attest:
By:
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Title:
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