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XXXXXX GROUP INTERNATIONAL, INC., as Issuer
THE XXXXXX GROUP INC., as Guarantor
and
FLEET NATIONAL BANK, as Trustee
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INDENTURE
Dated as of October 1, 1996
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$500,000,000
Senior Guaranteed Notes
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Incorporation by Reference of Trust Indenture Act . . . . . . 16
1.03. Rules of Construction . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
THE SENIOR NOTES
2.01. Issuance of Senior Notes. . . . . . . . . . . . . . . . . . . 17
2.02. Restrictive Legends . . . . . . . . . . . . . . . . . . . . . 19
2.03. Execution and Authentication. . . . . . . . . . . . . . . . . 20
2.04. Registrar and Paying Agent. . . . . . . . . . . . . . . . . . 20
2.05. Paying Agent To Hold Money in Trust . . . . . . . . . . . . . 20
2.06. Noteholder Lists. . . . . . . . . . . . . . . . . . . . . . . 21
2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 21
2.08. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . 21
2.09. Book-Entry Provisions for Global Note . . . . . . . . . . . . 22
2.10. Special Transfer Provisions.. . . . . . . . . . . . . . . . . 23
2.11. Form of Certificates to Be Delivered. . . . . . . . . . . . . 24
2.12. Outstanding Senior Notes. . . . . . . . . . . . . . . . . . . 25
2.13. Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . 26
2.14. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . 26
2.15. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 26
2.16. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . 26
2.17. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . 27
2.18. Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE THREE
REDEMPTION OF SENIOR NOTES
3.01. Notices to the Trustee. . . . . . . . . . . . . . . . . . . . 27
3.02. Selection of Senior Notes To Be Redeemed. . . . . . . . . . . 27
3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 27
3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . . . 28
3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 28
3.06. Senior Notes Redeemed or Purchased in Part. . . . . . . . . . 29
ARTICLE FOUR
COVENANTS
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
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4.01. Payment of Senior Notes . . . . . . . . . . . . . . . . . . . 29
4.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . 29
4.03. Corporate Existence . . . . . . . . . . . . . . . . . . . . . 30
4.04. Payment of Taxes and Other Claims . . . . . . . . . . . . . . 30
4.05. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law . . . . . . . . . . . . . . . . . . . . . 30
4.06. Compliance Certificate. . . . . . . . . . . . . . . . . . . . 31
4.07. Limitation on Indebtedness. . . . . . . . . . . . . . . . . . 31
4.08. Limitation on Restricted Payments . . . . . . . . . . . . . . 32
4.09. Limitation on Issuances and Sale of Preferred Stock by
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . 34
4.10. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . 34
4.11. Change of Control . . . . . . . . . . . . . . . . . . . . . . 34
4.12. Disposition of Proceeds of Asset Sales. . . . . . . . . . . . 36
4.13. Limitation on Transactions with Interested Persons. . . . . . 38
4.14. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . . . . 39
4.15. Limitations on Sale-Leaseback Transactions. . . . . . . . . . 39
4.16. Limitation on Applicability of Certain Covenants. . . . . . . 39
4.17 Commission Reports. . . . . . . . . . . . . . . . . . . . . . 40
4.18. Rule 144A Information Requirement . . . . . . . . . . . . . . 40
4.19. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . 40
ARTICLE FIVE
SUCCESSOR CORPORATION
5.01. When LGII May Merge, etc. . . . . . . . . . . . . . . . . . . 40
5.02. Successor Substituted.. . . . . . . . . . . . . . . . . . . . 41
ARTICLE SIX
REMEDIES
6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 42
6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . 43
6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . 44
6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 44
6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . 44
6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 45
6.07. Right of Holders To Receive Payment . . . . . . . . . . . . . 45
6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . . . . 45
6.09. Trustee May File Proofs of Claims . . . . . . . . . . . . . . 46
6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 46
6.12. Restoration of Rights and Remedies. . . . . . . . . . . . . . 46
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE SEVEN
TRUSTEE
7.01. Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 48
7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . . 48
7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . 48
7.05. Notice of Default . . . . . . . . . . . . . . . . . . . . . . 49
7.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 49
7.07. Reports by Trustee to Holders . . . . . . . . . . . . . . . . 49
7.08. Compensation and Indemnity. . . . . . . . . . . . . . . . . . 49
7.09. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . 50
7.10. Successor Trustee by Merger, etc. . . . . . . . . . . . . . . 51
7.11. Eligibility; Disqualification . . . . . . . . . . . . . . . . 51
7.12. Preferential Collection of Claims Against LGII. . . . . . . . 51
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
8.01. Termination of the Obligations of LGII and the Guarantor. . . 51
8.02. Legal Defeasance and Covenant Defeasance. . . . . . . . . . . 52
8.03. Application of Trust Money. . . . . . . . . . . . . . . . . . 55
8.04. Repayment to LGII or Guarantor. . . . . . . . . . . . . . . . 55
8.05. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 55
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.01. Without Consent of Holders. . . . . . . . . . . . . . . . . . 56
9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . 56
9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . 57
9.04. Revocation and Effect of Consents . . . . . . . . . . . . . . 57
9.05. Notation on or Exchange of Senior Notes . . . . . . . . . . . 58
9.06. Trustee May Sign Amendments, etc. . . . . . . . . . . . . . . 58
ARTICLE TEN
GUARANTEE OF SENIOR NOTES
10.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.02. Execution and Delivery of Guarantee . . . . . . . . . . . . . 59
10.03. Interest Act (Canada).. . . . . . . . . . . . . . . . . . . . 60
ARTICLE ELEVEN
MISCELLANEOUS
11.01. Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . 60
11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.03. Communication by Holders with Other Holders . . . . . . . . . 61
11.04. Certificate and Opinion as to Conditions Precedent. . . . . . 61
11.05. Statements Required in Certificate or Opinion . . . . . . . . 61
11.06. Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . 62
11.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 62
11.08. Consent to Service of Process.. . . . . . . . . . . . . . . . 62
11.09. No Interpretation of Other Agreements . . . . . . . . . . . . 62
11.10. No Recourse Against Others. . . . . . . . . . . . . . . . . . 62
11.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 63
11.12. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . 63
11.13. Separability. . . . . . . . . . . . . . . . . . . . . . . . . 63
11.14. Table of Contents, Headings, etc. . . . . . . . . . . . . . . 63
11.15. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 63
SIGNATURES
EXHIBIT A Form of Global Note
EXHIBIT B Form of Physical Note
EXHIBIT C Form of Senior Guarantee
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
iv
INDENTURE, dated as of October 1, 1996, between Xxxxxx Group
International, Inc., a Delaware corporation ("LGII"), The Xxxxxx Group Inc., a
body corporate organized under and governed by the laws of the Province of
British Columbia, Canada (the "Guarantor") and Fleet National Bank, a national
banking association as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and, except as otherwise provided herein, for the equal and ratable
benefit of the Holders of LGII's Guaranteed Senior Notes (the "Senior Notes"),
guaranteed by the Guarantor.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01. DEFINITIONS.
"1996 Revolving Credit Facility" means the $750,000,000 Credit
Agreement, dated as of May 15, 1996, among LGII, as borrower, TLGI, as
guarantor, the lenders named therein, as the lenders, Xxxxxxx, 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.
"Agent Members" shall have the meaning set forth in Section 2.09.
"Asset Acquisition" means (a) an Investment by the Guarantor or any
Restricted Subsidiary of the Guarantor (including, without limitation, LGII) in
any other person pursuant to which such person shall become a Restricted
Subsidiary of the Guarantor, or shall be merged with or into the Guarantor or
any Restricted Subsidiary of the Guarantor, (b) the acquisition by the Guarantor
or any Restricted Subsidiary of the Guarantor of the assets of any person (other
than a Restricted Subsidiary of the Guarantor) which constitute all or
substantially all of the assets of such person or (c) the acquisition by the
Guarantor or any Restricted Subsidiary of the Guarantor of any division or line
of business of any person (other than a Restricted Subsidiary of the Guarantor).
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease or other disposition to any person other than the Guarantor or a
Restricted Subsidiary of the Guarantor (including, without limitation, LGII), in
one or a series of related transactions, of (a) any Capital Stock of any
Restricted Subsidiary of the Guarantor (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 the Guarantor or any Restricted Subsidiary of the Guarantor; or (c)
any other properties or assets of the Guarantor or any Restricted Subsidiary of
the Guarantor 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 the Guarantor)
by the Guarantor or any of its Restricted Subsidiaries in one or a series of
related transactions in respect of which the Guarantor or such Restricted
Subsidiary receives cash or property with an
aggregate Fair Market Value of $2,000,000 or less; and (ii) any sale, issuance,
conveyance, transfer, lease or other disposition of properties or assets that is
governed by the provisions of Article IV.
"Asset Sale Offer" shall have the meaning set forth in Section 4.12.
"Asset Sale Offer Price" shall have the meaning set forth in
Section 4.12.
"Asset Sale Purchase Date" shall have the meaning set forth in
Section 4.12.
"Attributable Value" means, as to any particular lease under which any
person is at the time liable other than a Capitalized Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such person under such lease during the
initial term thereof as determined in accordance with GAAP, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capitalized Lease
Obligation with a like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated. "Attributable Value" means,
as to a Capitalized Lease Obligation under which any person is at the time
liable and at any date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a balance sheet of
such person in accordance with GAAP.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar law for the relief of debtors.
"Board of Directors" means the board of directors of LGII or the
Guarantor, as the case may be, or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of LGII or the Guarantor, as the case may
be, to have been duly adopted by the Board of Directors of LGII or the
Guarantor, as the case may be, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
State of New York or the city in which the Corporate Trust Office is located,
are authorized or obligated by law, regulation or executive order to close.
"Canadian Revolver" means CDN $50,000,000 Operating Credit Agreement
dated August 15, 1994, as amended on July 15, 1996, among The Xxxxxx Group Inc.,
Xxxxxx Group International, Inc. and Royal Bank of Canada.
"Canadian Term Loan" means CDN $35,000,000 Credit Agreement dated as
of January 12, 1995 between The Xxxxxx Group Inc. and Xxxxxx Group
International, Inc. and Dresdner Bank Canada.
"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.
2
"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 the Guarantor or any
Restricted Subsidiary (including, without limitation, LGII) which were obtained
by the Guarantor 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.
"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 the Guarantor 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 the
Guarantor or LGII; (b) the Guarantor 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, the Guarantor or
LGII, in any such event pursuant to a transaction in which the outstanding
Voting Stock of the Guarantor 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 the Guarantor 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 the Guarantor 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 the Guarantor or LGII (together with any new directors whose
election by such Board of Directors
3
or whose nomination for election by the shareholders or stockholders of the
Guarantor 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 the Guarantor or LGII then in office; or (d) the Guarantor
or LGII is liquidated or dissolved or adopts a plan of liquidation other than a
liquidation of LGII into the Guarantor.
"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, the Guarantor, LGII
and various other Subsidiaries.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution of the Indenture
such Commission is not existing and performing the applicable duties now
assigned to it, then the body or bodies performing such duties at such time.
"Common Stock" means, with respect to any person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Consolidated Cash Flow Available for Fixed Charges" means, with
respect to any person for any period, (A) the sum of, without duplication, the
amounts for such period, taken as a single accounting period, of
(a) Consolidated Net Income, (b) 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
4
rate of interest on such Indebtedness in effect on the Transaction Date; and
(ii) if interest on any Indebtedness actually incurred on the Transaction Date
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Reference Period. If such person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third person,
the above clause shall give effect to the incurrence of such guaranteed
Indebtedness as if such person or such Restricted Subsidiary had directly
incurred or otherwise assumed such guaranteed Indebtedness. For purposes of
this calculation, a Material Asset Acquisition is an Asset Acquisition which is
deemed by such person to be material for such purposes or which has a purchase
price of $30,000,000 or more and a Material Asset Sale is one or more Asset
Sales which relate to assets with an aggregate value of more than $30,000,000.
"Consolidated Fixed Charges" means, with respect to any person for any
period, the sum of, without duplication, the amounts for such period of
(i) Consolidated Interest Expense and (ii) the product of (a) the aggregate
amount of dividends and other distributions paid or accrued during such period
in respect of Preferred Stock and Redeemable Capital Stock of such person and
its Restricted Subsidiaries on a consolidated basis and (b) a multiplier, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such person,
expressed as a decimal; PROVIDED, HOWEVER, that the multiplier in clause (b)
shall be one if such dividend or other distribution is fully tax deductible.
"Consolidated Income Tax Expense" means, with respect to any person
for any period, the provision for federal, state, local and foreign income taxes
of such person and its Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any person for
any period, without duplication, the sum of (i) the interest expense of such
person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation,
(a) any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations, (c) the interest portion of any deferred payment
obligation, (d) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and (e) all
accrued interest and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any person, for any
period, the consolidated net income (or loss) of such person and its Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses, (ii) the portion of 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, (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 and (vii) in the case of the year ended December
31, 1995, losses in respect of the Gulf National and Provident Litigation
Expenses.
"Consolidated Net Tangible Assets" of the Guarantor as at any date
means the total amount of assets of the Guarantor and its Restricted
Subsidiaries, less applicable reserves, on a consolidated basis as of the
5
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 the Guarantor and
its Restricted Subsidiaries as at the end of the fiscal quarter immediately
preceding such date.
"Consolidated Net Worth" means, with respect to any person at any
date, the consolidated stockholders' equity of such person less the amount of
such stockholders' equity attributable to Redeemable Capital Stock of such
person and its Restricted Subsidiaries, as determined in accordance with GAAP.
"Consolidation" means, with respect to any person, the consolidation
of the accounts of such person and each of its Subsidiaries if and to the extent
the accounts of such person and each of its Restricted Subsidiaries would
normally be consolidated with those of such person, all in accordance with GAAP.
The term "consolidated" shall have a meaning correlative to the foregoing.
"Control" means, with respect to any specified person, the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is located in Hartford,
Connecticut.
"covenant defeasance" shall have the meaning set forth in
Section 8.02.
"Credit Agreements" means the 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 the
Guarantor or any of its Restricted Subsidiaries against fluctuations in currency
values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depositary Trust Company, its nominees and
their respective successors.
"Event of Default" has the meaning set forth under Section 6.01
herein.
"Excess Proceeds" shall have the meaning set forth in Section 4.12.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" refers to any Exchange Notes containing terms
substantially identical to the Initial Notes (except that (i) such Exchange
Notes shall not contain terms with respect to transfer restrictions and
6
shall be registered under the Securities Act, and (ii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) that are issued and exchanged for the Initial Notes in accordance
with the Exchange Offer, as provided for in the Registration Rights Agreement.
"Exchange Offer" means the offer by LGII to the Holders of the Initial
Notes to exchange all of the Initial Notes for Exchange Notes, as provided for
in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction; PROVIDED, HOWEVER, that with
respect to any transaction which involves an asset or assets in excess of
$5,000,000, such determination shall be evidenced by a Board Resolution of the
Guarantor delivered to the Trustee.
"GAAP" means accounting principles generally accepted in Canada
consistently applied until such time as the Guarantor or LGII shall prepare
their respective books of record in accordance with accounting principles
generally accepted in the United States ("U.S. GAAP") at which time and all
times thereafter GAAP shall mean U.S. GAAP consistently applied.
"Global Note" shall have the meaning set forth in Section 2.01.
"Guarantee" shall mean the guarantee of the Senior Notes by the
Guarantor created pursuant to Article 10.
"Guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Guarantor" shall mean The Xxxxxx Group, Inc., and shall include any
successor replacing such Guarantor pursuant to the provisions hereof, and
thereafter means such successor.
"Gulf National and Provident Litigation Expenses" means expenses of up
to $200,000,000 recorded by the Guarantor in its consolidated financial
statements for the year ended December 31, 1995 in connection with the conduct
and settlement of lawsuits brought against the Guarantor by (i) X.X. X'Xxxxx,
Xx., Gulf National Insurance Company and certain affiliates thereof before the
courts of the State of Mississippi and (ii) Provident American Corporation and a
subsidiary thereof before the United States District Court for the Eastern
District of Pennsylvania.
"Holder" or "Noteholder" means the person in whose name a Senior Note
is registered on the Registrar's books.
"Indebtedness" means, with respect to any person, without duplication,
(a) all liabilities of such person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business and
which are not overdue by more than 90 days, but excluding, without limitation,
all obligations, contingent or otherwise, of such
7
person in connection with any undrawn letters of credit, banker's acceptance or
other similar credit transaction, (b) all obligations of such person evidenced
by bonds, notes, debentures or other similar instruments, (c) all indebtedness
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such person, (e) all Indebtedness referred to in the
preceding clauses of other persons and all dividends of other persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (f) all guarantees of Indebtedness referred to in this
definition by such person, (g) all Redeemable Capital Stock of such person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all obligations under or in respect of
Currency Agreements and Interest Rate Protection Obligations of such person,
(i) any Preferred Stock of any Restricted Subsidiary of such person valued at
the sum of (without duplication) (A) the liquidation preference thereof, (B) any
mandatory redemption payment obligations in respect thereof and (C) accrued
dividends thereon, and (j) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (a) through (i) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
the provisions hereof, and if such price is based upon, or measured by, the fair
market value of such Redeemable Capital Stock, such fair market value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock. For purposes of this definition, the term
"Indebtedness" shall not include (i) Indebtedness of a Wholly-Owned Subsidiary
owed to and held by the Guarantor, LGII or another Wholly-Owned Subsidiary, in
each case which is not subordinate in right of payment to any Indebtedness of
such Subsidiary, except that (a) any transfer of such Indebtedness by the
Guarantor, LGII or a Wholly-Owned Subsidiary (other than to the Guarantor, LGII
or to a Wholly-Owned Subsidiary) and (b) the sale, transfer or other disposition
by the Guarantor, LGII or any Restricted Subsidiary of the Guarantor or LGII of
Capital Stock of a Wholly-Owned Subsidiary which is owed Indebtedness of another
Wholly-Owned Subsidiary such that it ceases to be a Wholly-Owned Subsidiary of
the Guarantor or LGII shall, in each case, be an incurrence of Indebtedness by
such Restricted Subsidiary subject to the other provisions hereof; and (ii)
Indebtedness of the Guarantor or LGII owed to and held by a Wholly-Owned
Subsidiary of the Guarantor or LGII which is unsecured and subordinate in right
of payment to the payment and performance of the Guarantor's or LGII's
obligations under the provisions hereof and the Senior Notes except that (a) any
transfer of such Indebtedness by a Wholly-Owned Subsidiary of the Guarantor or
LGII (other than to another Wholly-Owned Subsidiary of the Guarantor or LGII)
and (b) the sale, transfer or other disposition by the Guarantor or LGII or any
Restricted Subsidiary of the Guarantor or LGII of Capital Stock of a Wholly-
Owned Subsidiary which holds Indebtedness of the Guarantor or LGII such that it
ceases to be a Wholly-Owned Subsidiary shall, in each case, be an incurrence of
Indebtedness by the Guarantor or LGII, as the case may be, subject to the other
provisions hereof.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time, and shall include the form and terms of particular series of
Senior Notes established as contemplated hereby.
"Independent Financial Advisor" means a firm (i) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Guarantor or LGII and (ii) which, in the
judgment of the Board of Directors of the Guarantor, is otherwise independent
and qualified to perform the task for which it is to be engaged.
8
"Initial Notes" refers to Senior Notes initially issued under this
Indenture and distributed in transactions exempt from registration under the
Securities Act prior to the exchange of such Senior Notes for Exchange Notes.
"interest" means, with respect to any Senior Note, the amount of all
interest accruing on such Senior Note, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.01(f) and (g)
or which would have accrued but for any such event, whether or not such claims
are allowable under applicable law.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Senior Notes, as set forth therein.
"Interest Rate Protection Agreement" means any arrangement with any
other person whereby, directly or indirectly, such person is entitled to receive
from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic
payments made by such person calculated by applying a fixed or a floating rate
of interest on the same notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements.
"Interest Rate Protection Obligations" means the obligations of any
person under any Interest Rate Protection Agreement.
"Investment" means, with respect to any person, any direct or indirect
loan or other extension of credit or capital contribution to (by means of any
transfer of cash or other 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 the Guarantor and its Restricted
Subsidiaries (including, without limitation, LGII) in the ordinary course of
business in accordance with normal trade practices of the Guarantor 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.
"legal defeasance" shall have the meaning set forth in Section 8.02.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A person shall be deemed to own subject to a Lien any property which such
person has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement.
"Maturity Date" means, with respect to any Senior Note, the date on
which any principal of such Senior Note becomes due and payable as therein or
herein provided, whether at the Stated Maturity with respect to such principal
or by declaration of acceleration, call for redemption or purchase or otherwise.
"Measurement Date" means 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 the Guarantor, the banks listed therein and Wachovia
Bank of Georgia, N.A., as agent.
9
"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 the Guarantor or any Restricted Subsidiary of the
Guarantor (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 the Guarantor or any
Restricted Subsidiary of the Guarantor) owning a beneficial interest in the
assets subject to the Asset Sale and (iv) appropriate amounts to be provided by
the Guarantor or any Restricted Subsidiary of the Guarantor, as the case may be,
as a reserve required in accordance with GAAP against any liabilities associated
with such Asset Sale and retained by the Guarantor or any Restricted Subsidiary
of the Guarantor, 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 LGII or the
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of LGII or the
Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to LGII.
"Pari Passu Indebtedness" means Indebtedness of LGII or the Guarantor
which ranks PARI PASSU in right of payment with the Senior Notes or the
Guarantee, as the case may be.
"Paying Agent" has the meaning set forth in Section 2.04, except that,
for the purposes of Section 4.11 and Section 4.12 and Articles Three and Eight,
the Paying Agent shall not be LGII or a Subsidiary of LGII or any of their
respective Affiliates.
"Permitted Holders" mean (i) Xxxxxxx Xxxxxx and Xxxx Xxxxxx, taken
together, and (ii) in the case of LGII, the Guarantor.
"Permitted Indebtedness" means, without duplication, each of the
following:
(a) the Series 3 Senior Notes, the Series 4 Senior Notes and
Indebtedness of the Guarantor evidenced by its Guarantee with respect to
the Series 3 Senior Notes and the Series 4 Senior Notes;
(b) Indebtedness of the Guarantor and its Restricted Subsidiaries
(including, without limitation, LGII) outstanding on the Issue Date (other
than Indebtedness under the Credit Agreements);
(c) Indebtedness of the Guarantor or LGII, as the case may be, under
the Credit Agreements in an aggregate principal amount at any one time
outstanding not to exceed $750,000,000
10
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 the Guarantor
covering Indebtedness of the Guarantor and its Restricted Subsidiaries
(including, without limitation, LGII); (ii) Interest Rate Protection
Obligations of any Restricted Subsidiary of the Guarantor covering
Indebtedness of such Restricted Subsidiary; PROVIDED, HOWEVER, that, in the
case of either clause (i) or (ii), (x) any Indebtedness to which any such
Interest Rate Protection Obligations relate bears interest at fluctuating
interest rates and is otherwise permitted to be incurred under this
covenant and (y) the notional principal amount of any such Interest Rate
Protection Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations relate;
(e) Indebtedness under Currency Agreements; PROVIDED, HOWEVER, that
in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Guarantor 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 the Guarantor and its Restricted Subsidiaries
(including, without limitation, LGII) represented by letters of credit for
the account of the Guarantor 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 the Guarantor 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 the Guarantor the proceeds of which are used
solely to refinance (whether by amendment, renewal, extension or refunding)
Indebtedness of the Guarantor and its Restricted Subsidiaries (including,
without limitation, LGII) and (ii) Indebtedness of any Restricted
Subsidiary of the Guarantor 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 the Guarantor as necessary to
accomplish such refinancing by means of a tender offer or privately
negotiated purchase, plus the amount of expenses in connection
11
therewith, (y) in the case of Indebtedness incurred by the Guarantor
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 the Guarantor (including (a) LGII and (b) any
person that pursuant to such Investment becomes a Wholly-Owned Subsidiary of the
Guarantor) and any person that is merged or consolidated with or into, or
transfers or conveys all or substantially all of its assets to, the Guarantor or
any Wholly-Owned Subsidiary of the Guarantor at the time such Investment is
made; (ii) Investments in Cash Equivalents; (iii) Investments in Currency
Agreements on commercially reasonable terms entered into by the Guarantor or any
of its Restricted Subsidiaries in the ordinary course of business in connection
with the operations of the business of the Guarantor or its Restricted
Subsidiaries to hedge against fluctuations in foreign exchange rates; (iv) loans
or advances to officers, employees or consultants of the Guarantor and its
Restricted Subsidiaries for travel and moving expenses in the ordinary course of
business for bona fide business purposes of the Guarantor and its Restricted
Subsidiaries; (v) other loans or advances to officers, employees or consultants
of the Guarantor and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes of the Guarantor 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 the Guarantor 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
the Guarantor or any of its Restricted Subsidiaries, or for other liabilities or
obligations of such other person to the Guarantor 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 the Guarantor or any of its Restricted
Subsidiaries in the ordinary course of business in connection with the
operations of the Guarantor and its Restricted Subsidiaries to hedge against
fluctuations in interest rates; and (viii) Investments of funds received by the
Guarantor 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 the Guarantor or such Restricted Subsidiary, as the
case may be, and which funds do not constitute assets or liabilities of the
Guarantor 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
the Guarantor and its Restricted Subsidiaries.
"Permitted Liens" means the following types of Liens:
(a) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Guarantor 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);
12
(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 the Guarantor
or any of its Restricted Subsidiaries (including, without limitation,
LGII);
(f) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;
(g) any Lien existing on any asset of any corporation at the time
such corporation becomes a Restricted Subsidiary and not created in
contemplation of such event;
(h) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset; PROVIDED, that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion
thereof;
(i) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Guarantor 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 the Guarantor 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, charitable
foundation, unincorporated organization, government or any agency or political
subdivision thereof.
"Physical Note" shall have the meaning set forth in Section 2.01.
"Predecessor Notes" means, with respect to any particular Senior Note,
every previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purposes of this
definition, any Senior Notes authenticated and delivered under Section 2.08
hereof in exchange for mutilated Notes or in lieu of lost, destroyed or stolen
Senior Notes, shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Senior Notes.
13
"Preferred Securities" means, with respect to a Special Finance
Subsidiary, any securities of such Subsidiary treated for accounting purposes as
an equity security that has preferential rights to any other security of such
person with respect to dividends or redemptions or upon liquidation.
"Preferred Stock" means, with respect to any person, any Capital Stock
of such person that has preferential rights to any other Capital Stock of such
person with respect to dividends or redemptions or upon liquidation and any
Preferred Securities.
"principal" means, with respect to any debt security, the principal of
the security plus, when appropriate, the premium, if any, on the security and
any interest on overdue principal.
"Private Placement Legend" shall have the meaning set forth in Section
2.02.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Redeemable Capital Stock" means any shares of any class or series of
Capital Stock that, either by the terms thereof, by the terms of any security
into which it is convertible or exchangeable or by contract or otherwise, is or
upon the happening of an event or passage of time would be, required to be
redeemed prior to the Stated Maturity with respect to the principal of any
Senior Note or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to any such Stated Maturity.
"Redemption Date" means, with respect to any Senior Note to be
redeemed, the date fixed by LGII for such redemption pursuant to this Indenture
and the terms of the Senior Notes.
"Redemption Price" means, with respect to any Senior Note to be
redeemed, the price fixed for such redemption pursuant to the terms of this
Indenture and the Senior Notes.
"Registrar" has the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of October 4, 1996, among LGII, the Guarantor and the
Initial Purchasers.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Related Obligor" has the meaning set forth in Section 4.08.
"Restricted Payments" has the meaning set forth in Section 4.08.
"Restricted Subsidiary" means any Subsidiary of the Guarantor 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.
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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.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Seller Financing Indebtedness" means a purchase money Indebtedness
issued to the seller of a business or other assets for, and not in excess of,
the purchase price thereof.
"Senior Notes" means the securities that are issued under this
Indenture, as amended or supplemented from time to time pursuant to this
Indenture.
"Series 3 Exchange Notes" has the meaning given in Section 2.01.
"Series 3 Initial Notes" means the $125,000,000 aggregate principal
amount of LGII's 7 3/4% Series 3 Senior Guaranteed Notes due 2001 issued
pursuant to this Indenture on October 4, 1996.
"Series 3 Senior Notes" means the $125,000,000 aggregate principal
amount of LGII's Series 3 Senior Guaranteed Notes dated October 4, 1996, which
are divided into two sub-series of Senior Notes: the Series 3 Initial Notes and
the Series 3 Exchange Notes.
"Series 4 Exchange Notes" has the meaning given in Section 2.01.
"Series 4 Initial Notes" means the $225,000,000 aggregate principal
amount of LGII's 8 1/4% Series 4 Senior Guaranteed Notes due 2003 issued
pursuant to this Indenture on October 4, 1996.
"Series 4 Senior Notes" means the $225,000,000 aggregate principal
amount of LGII's Series 4 Senior Guaranteed Notes dated October 4, 1996, which
are divided into two sub-series of Senior Notes: the Series 4 Initial Notes and
the Series 4 Exchange Notes.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"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 the Guarantor and whose sole liabilities
are Preferred Securities the proceeds from the sale of which are or have been
advanced to LGII or the Guarantor.
"Stated Maturity" means, when used with respect to any Senior Note or
any installment of interest thereon, the date specified in such Senior Note as
the fixed date on which the principal of such Senior Note or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Subsidiary" means, with respect to any person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such person, by one or more Subsidiaries of such person or
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by such person and one or more Subsidiaries thereof and (ii) any other person
(other than a corporation), including, without limitation, a joint venture, in
which such person, one or more Subsidiaries thereof or such person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other person performing
similar functions). For purposes of this definition, any directors' qualifying
shares or investments by foreign nationals mandated by applicable law shall be
disregarded in determining the ownership of a Subsidiary.
"Surviving Entity" shall have the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the Issue Date.
"Trust Officer" means any officer in the Corporate Trust
Administration of the Trustee or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces such party (or any previous successor) in accordance with the
provisions of this Indenture, and thereafter means such successor.
"U.S. Government Obligations" shall have the meaning set forth in
Section 8.02.
"Unrestricted Subsidiary" means (i) First Capital Life Insurance
Company of Louisiana, National Capital Life Insurance Company, Security
Industrial Insurance Company, Security Industrial Fire Insurance Company or any
successors to such Subsidiaries or (ii) a Subsidiary of the Guarantor declared
by the Board of Directors of the Guarantor 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 the
Guarantor 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
the Guarantor 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 the Guarantor 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 the
Guarantor of which 100% of the outstanding Capital Stock is owned by the
Guarantor or one or more Wholly-Owned Subsidiaries of
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the Guarantor or by the Guarantor and one or more Wholly-Owned Subsidiaries of
the Guarantor, 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 the Guarantor or one or more
Wholly-Owned Subsidiaries of the Guarantor or by the Guarantor and one or more
Wholly-Owned Subsidiaries of the Guarantor, including LGII. For purposes of
this definition, any directors' qualifying shares or investments by foreign
nationals mandated by applicable law shall be disregarded in determining the
ownership of a Subsidiary.
1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Senior Notes and the Guarantee;
"INDENTURE SECURITY HOLDER" means a Noteholder or Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means LGII, the Guarantor or any
other obligor on the Senior Notes or the Guarantee.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
1.03. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) words in the singular include the plural, and words in the plural
include the singular.
(b) "or" is not exclusive;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(e) all references to "$" or "dollars" shall refer to the lawful
currency of the United States of America.
ARTICLE TWO
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THE SENIOR NOTES
2.01. ISSUANCE OF SENIOR NOTES.
The aggregate principal amount of Senior Notes which may be
outstanding at any time under this Indenture may not exceed $500,000,000 at any
time, except to the extent permitted by Section 2.08. The Senior Notes may be
issued in one or more series. Upon the execution and delivery of this Indenture
and the Guarantee, Series 3 Senior Notes in an aggregate principal amount of
$125,000,000 and Series 4 Senior Notes in an aggregate principal amount of
$225,000,000 may be executed by LGII and delivered to the Trustee for
authentication. From time to time thereafter LGII may, without limitation, also
issue additional Senior Notes of the same tenor as the Series 3 Senior Notes or
the Series 4 Senior Notes, as the case may be, under this Indenture so that such
additional Senior Notes, together with either the Series 3 Senior Notes or the
Series 4 Senior Notes, as the case may be, shall form a single series; PROVIDED
that with respect to any such additional Senior Notes the Issue Date may be the
date of the purchase and sale of such additional Senior Notes and interest
thereon shall accrue as and from the Issue Date thereof.
The Series 3 Senior Notes are divided into the following two sub-
series, which collectively form one series of Senior Notes: (i) LGII's 7 3/4%
Series 3 Senior Guaranteed Notes due 2001, issued on October 4, 1996 (the
"Series 3 Initial Notes") and (ii) LGII's 7 3/4% Series 3 Senior Guaranteed
Notes (Registered) due 2001 (the "Series 3 Exchange Notes"). A Holder of Series
3 Initial Notes, upon surrender of the certificate representing such Series 3
Initial Notes pursuant to the Exchange Offer, shall be entitled to receive in
exchange therefor a certificate representing Series 3 Exchange Notes, which
shall evidence the same debt as had been evidenced by the Series 3 Initial Notes
so surrendered. Absent repurchase, the aggregate principal amount of Series 3
Senior Notes shall be $125,000,000, irrespective of whether all, some or none of
the Series 3 Initial Notes are exchanged in the Exchange Offer.
The Series 4 Senior Notes are divided into the following two sub-
series, which collectively form one series of Senior Notes: (i) LGII's 8 1/4%
Series 4 Senior Guaranteed Notes due 2003, issued on October 4, 1996 (the
"Series 4 Initial Notes") and (ii) LGII's 8 3/4% Series 4 Guaranteed Notes
(Registered) due 2003 (the "Series 4 Exchange Notes"). A Holder of Series 4
Initial Notes, upon surrender of the certificate representing such Series 4
Initial Notes pursuant to the Exchange Offer, shall be entitled to receive in
exchange therefor a certificate representing Series 4 Exchange Notes, which
shall evidence the same debt as had been evidenced by the Series 4 Initial Notes
so surrendered. Absent redemption or repurchase, the aggregate principal amount
of Series 4 Senior Notes shall be $225,000,000, irrespective of whether all,
some or none of the Series 4 Initial Notes are exchanged in the Exchange Offer.
The Senior Notes of each series and the Trustee's certificate of
authentication thereon shall be in substantially the form of Exhibits A and B
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable law
or with the rules of any securities exchange or as may, consistently herewith,
be determined by the Officers executing such Senior Notes, as evidenced by their
execution thereof. The Senior Notes of each series shall be issuable only in
registered form without coupons and only in denominations of $1,000 and integral
multiples thereof.
The definitive Senior Notes and the Guarantee shall be printed,
typewritten, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Senior Notes of such series may be listed, all
as determined by the officers executing such Senior Notes, as evidenced by their
execution of such Senior Notes. Each Senior Note shall be dated the date of its
authentication.
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Initial Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Senior Notes
substantially in the form set forth in Exhibit A hereto (the "Global Note")
deposited with, or on behalf of, the Depositary or with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Depositary or its nominee, or of the trustee, as custodian
for the Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold other than as described in the
preceding paragraph shall be issued in the form of permanent certificated Senior
Notes in registered form in substantially the form set forth in Exhibit B hereto
(the "Physical Notes"). Senior Notes issued pursuant to Section 2.09 in
exchange for interests in the Global Note shall be in the form of Physical
Notes.
The terms and provisions contained in the form of the Senior Notes,
annexed hereto as Exhibits A and B, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, LGII and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
2.02. RESTRICTIVE LEGENDS. Unless and until (i) an Initial Note
is sold under an effective Registration Statement or (ii) an Initial Note is
exchanged for an Exchange Note in connection with an effective Registration
Statement, in each case as provided for in the Registration Rights Agreement,
then the Global Note and each Physical Note shall bear the legend set forth
below (the "Private Placement Legend") on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
THE TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
19
MADE TO CEDE & CO. TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.09
AND 2.10 OF THE INDENTURE.
2.03. EXECUTION AND AUTHENTICATION.
Two Officers shall execute the Senior Notes of each series on behalf
of LGII by either manual or facsimile signature. LGII's seal shall be
impressed, affixed, imprinted or reproduced on the Senior Notes.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time the Trustee authenticates the Senior Note or at any time
thereafter, the Senior Note shall be valid nevertheless.
A Senior Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Senior Note.
Such signature shall be conclusive evidence that the Senior Note has been
authenticated under this Indenture.
The Trustee shall authenticate Senior Notes for original issue upon
receipt of an Officers' Certificate signed by two Officers of LGII directing the
Trustee to authenticate the Senior Notes and certifying that all conditions
precedent to the issuance of the Senior Notes contained herein have been
complied with.
With the prior written approval of LGII, the Trustee may appoint an
authenticating agent acceptable to LGII to authenticate Senior Notes. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Senior Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. Such authenticating agent shall have the same rights as the Trustee in
any dealings hereunder with LGII or with any of LGII's Affiliates.
2.04. REGISTRAR AND PAYING AGENT.
LGII shall maintain an office or agency (which shall be located in the
Borough of Manhattan, The City of New York, State of New York) where Senior
Notes of each series may be presented for registration of transfer or for
exchange (the "Registrar"), an office or agency (which shall be located in the
Borough of Manhattan, The City of New York, State of New York) where Senior
Notes may be presented for payment of principal, premium, if any, and interest
(the "Paying Agent") and an office or agency where notices and demands to or
upon LGII in respect of the Senior Notes and this Indenture may be served. The
Registrar shall keep a register of the Senior Notes and of their transfer and
exchange. LGII may have one or more co-Registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent.
Except as otherwise expressly provided in this Indenture, LGII or any Affiliate
thereof may act as Paying Agent.
LGII shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Registrar or Paying Agent. LGII shall notify the
Trustee of the name and address of any such Registrar or Paying Agent. If LGII
fails to maintain a Registrar, Paying Agent or
20
agent for service of notices and demands, or fails to give the foregoing notice,
the Trustee shall act as such and shall be entitled to appropriate compensation
in accordance with Section 7.08.
LGII initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Senior Notes.
2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of,
or interest on, the Senior Notes (whether such money has been distributed to it
by LGII or any other obligor on the Senior Notes), and LGII (or any other
obligor on the Senior Notes) and the Paying Agent shall notify the Trustee of
any default by LGII (or any other obligor on the Senior Notes) in making any
such payment. If LGII or an Affiliate of LGII acts as Paying Agent, it shall
segregate the money and hold it as a separate trust fund. LGII at any time may
require a Paying Agent to distribute all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any Payment Default with respect to the Senior Notes, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds distributed. Upon doing
so, the Paying Agent (other than an obligor on the Senior Notes or the
Guarantee) shall have no further liability for the money so paid over to the
Trustee.
2.06. NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, LGII shall furnish to the Trustee at least ten Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
2.07. TRANSFER AND EXCHANGE.
When Senior Notes of any series are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Senior Notes or to
exchange such Senior Notes for an equal principal amount of Senior Notes of
other authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; PROVIDED, HOWEVER, that the Senior Notes surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to LGII and the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing. To permit registrations of transfers and exchanges, LGII shall
execute and the Trustee shall authenticate Senior Notes at the Registrar's or
co-Registrar's request. No service charge shall be made for any transfer,
exchange or redemption, but LGII may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Sections 2.02, 2.07, 2.10, 4.12,
4.13 or 9.05). The Registrar or co-Registrar shall not be required to register
the transfer of or exchange of any Senior Note (i) during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Senior Notes and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Senior Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry system maintained by the
21
Holder of such Global Note (or its agent), and that ownership of a beneficial
interest in the Senior Note shall be required to be reflected in a book entry.
2.08. REPLACEMENT NOTES.
If a mutilated Senior Note is surrendered to the Trustee or if the
Holder of a Senior Note claims that the Senior Note has been lost, destroyed or
wrongfully taken, LGII shall issue and the Trustee shall authenticate a
replacement Senior Note if the Trustee's requirements are satisfied. If
required by the Trustee or LGII, such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both LGII and the Trustee, to
protect LGII, the Trustee or any Paying Agent or Registrar from any loss which
any of them may suffer if a Senior Note is replaced. LGII may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Senior Note,
including reasonable fees and expenses of counsel. Every replacement Senior
Note is an additional obligation of LGII and the Guarantor.
2.09. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE. (a) The Global Note
initially shall (i) be registered in the name of the Depositary for such Global
Note or the nominee of such Depositary, (ii) be deposited with, or on behalf of,
the Depositary or with the Trustee, as custodian for such Depositary, and (iii)
bear legends as set forth in Section 2.02. Members of, or participants in, the
Depositary ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depositary, or the
Trustee as its custodian, or under the Global Note, and the Depositary may be
treated by LGII, the Trustee and any agent of LGII or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent LGII, the Trustee or any agent of
LGII or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Senior Note.
(b) Transfers of the Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in the Global Note
may be transferred in accordance with the rules and procedures of the Depositary
and the provisions of Section 2.10. In addition, Physical Notes shall be issued
to all beneficial owners in exchange for their beneficial interests in the
Global Note if (i) the Depositary notifies LGII that it is unwilling or unable
to continue as Depositary for the Global Note and a successor depositary is not
appointed by LGII within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary.
(c) In connection with any transfer of a portion of the beneficial
interest in the Global Note pursuant to Section 2.09(b) to beneficial owners who
are required to hold Physical Notes, the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of the Global Note
in an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and LGII shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to Section 2.09(b), the Global Note shall be deemed
to be surrendered to the Trustee for cancellation, and LGII shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the Global Note an
equal aggregate principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in the
Global Note pursuant to subsection (c) or subsection (d) of this Section shall,
except as otherwise provided by paragraph (d) of Section
22
2.10, bear the applicable legend regarding transfer restrictions applicable to
the Physical Notes set forth in Section 2.02.
(f) The Holder of the Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Senior Notes.
(g) QIBs that are beneficial owners of interests in a Global Note may
receive Physical Notes (which shall bear the Private Placement Legend if
required by Section 2.02) in accordance with the procedures of the Depositary.
In connection with the execution, authentication and delivery of such Physical
Notes, the Registrar shall reflect on its books and records a decrease in the
principal amount of the relevant Global Note equal to the principal amount of
such Physical Notes and LGII shall execute and the Trustee shall authenticate
and deliver one or more Physical Notes having an equal aggregate principal
amount.
2.10. SPECIAL TRANSFER PROVISIONS. Unless and until (i) an
Initial Note is sold under an effective Registration Statement, or (ii) an
Initial Note is exchanged for an Exchange Note in connection with the Exchange
Offer, in each case pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Note to any institutional "accredited investor"
(as defined in subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act) that is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Note, whether or not such Initial Note bears the Private Placement
Legend, if (x) the requested transfer is at least three years after
the original issue date of the Initial Notes or (y) the proposed
transferee has delivered to the Registrar a certificate substantially
in the form set forth in Section 2.11; and
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the certificate and opinion, if any, required by paragraph (i)
and (y) instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of
the Global Note in an amount equal to the principal amount of the
beneficial interest in the Global Note to be transferred, and LGII
shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Physical Note to a QIB
(excluding Non-U.S. Persons):
(i) If the Senior Note to be transferred consists of (A)
Physical Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Initial Note stating, or has otherwise
advised LGII and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Senior Note
stating, or has otherwise advised LGII and the Registrar in writing,
that it is a QIB, that it is purchasing the Senior Note for its own
account or an account with respect to which it exercises sole
investment discretion (the beneficial owner of which is a QIB) and
that it and any such sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding LGII
as it has requested pursuant to Rule 144A or has determined
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not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (B) an
interest in the Global Note, the transfer of such interest may be
affected only through the book entry system maintained by the
Depositary.
(ii) If the proposed transferor is an Agent Member, and the
Initial Note to be transferred consists of Physical Notes, upon
receipt by the Registrar of the documents referred to in clause (i)
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount at maturity
of the Global Note in an amount equal to the principal amount at
maturity of the Physical Notes to be transferred, and the Trustee
shall cancel the Physical Note so transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Senior Notes not bearing the Private Placement
Legend, the Registrar shall deliver Senior Notes that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement of
Senior Notes bearing the Private Placement Legend, the Registrar shall deliver
only Senior Notes that bear the Private Placement Legend unless the condition of
paragraph (a)(i)(x) of this Section 2.10 exists or (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to LGII and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Senior Note bearing the
Private Placement Legend, each Holder of such a Senior Note acknowledges the
restrictions on transfer of such Senior Note set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Senior Note
only as provided in this Indenture.
The Registrar shall retain until such time as no Senior Notes remain
Outstanding copies of all letters, notices and other written communications
received pursuant to Section 2.09 or this Section 2.10. LGII shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
2.11. FORM OF CERTIFICATES TO BE DELIVERED.
Form of Certificate to be Delivered in Connection with Transfers to
Non-QIB Institutional Accredited Investors.
Xxxxxx Group International, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx
Xxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We are delivering this letter in connection with our proposed purchase
of Senior Guaranteed Notes (the "Senior Notes") of Xxxxxx Group International,
Inc. a Delaware corporation ("LGII"), guaranteed by The Xxxxxx Group Inc., a
body corporate under the laws of the Province of British Columbia. We hereby
confirm that:
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(i) we are an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act") (an "Accredited Investor");
(ii) any purchase of Senior Notes by us will be for our own account
or for the account of one or more other Accredited Investors as to which we
exercise sole investment discretion;
(iii) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing Senior Notes and we and any accounts for which we are acting are
able to bear the economic risks of and an entire loss of our or their
investment in the Senior Notes;
(iv) we are not acquiring Senior Notes with a view to any
distribution thereof in a transaction that would violate the Securities Act
or the securities laws of any state of the United States or any other
applicable jurisdiction; PROVIDED that the disposition of our property and
the property of any accounts for which we are acting as fiduciary shall
remain at all times within our and their control; and
(v) we acknowledge that the Senior Notes have not been registered
under the Securities Act and that none of the Senior Notes may be offered
or sold within the United States or to, or for the benefit of, U.S. persons
except as set forth below.
We agree, on our own behalf and on behalf of each account for which we
acquire any Senior Notes, that, for a period of three years after the original
issuance of the Senior Notes, such Senior Notes may be offered, resold, pledged
or otherwise transferred only (i) to LGII or any of its subsidiaries, (ii)
inside the United States to a person whom we reasonably believe to be a
qualified institutional buyer (as defined in Rule 144A under the Securities Act)
in compliance with Rule 144A under the Securities Act, (iii) inside the United
States to a person we reasonably believe to be an Accredited Investor that,
prior to such transfer, furnished to the trustee under the Indenture relating to
the Senior Notes (the "Trustee") a signed letter containing certain
representations and agreements (a form of which can be obtained from the
Trustee), (iv) pursuant to the exemption from registration provided by Rule 144
under the Securities Act (if available), or (v) pursuant to an effective
registration statement under the Securities Act, and, in each case, in
accordance with any applicable securities laws of any state of the United
States.
We understand that the Trustee will not be required to accept for
registration of transfer any Senior Notes acquired by us, except upon
presentation of evidence satisfactory to LGII and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that
the Senior Notes purchased by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
substance of this paragraph. We further agree to provide to any person
acquiring any of the Senior Notes from us a notice advising such person that
resales of the Senior Notes are restricted as stated herein and that
certificates representing the Senior Notes will bear a legend to that effect.
We acknowledge that you, LGII, the Trustee and others will rely upon
our acknowledgments, representations and agreements set forth herein, and we
agree to notify you promptly in writing if any of our acknowledgments,
representations or agreements herein cease to be accurate and complete.
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as a fiduciary or agent.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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_______________________________________
(Name of Purchaser)
By: ________________________________
Name:
Title:
Address:
2.12. OUTSTANDING SENIOR NOTES.
Senior Notes outstanding at any time are all the Senior Notes that
have been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Senior Note does not cease to be outstanding because LGII or any
of its Affiliates holds the Senior Note.
If a Senior Note is replaced pursuant to Section 2.07 (other than a
mutilated Senior Note surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Senior
Note is held by a BONA FIDE purchaser. A mutilated Senior Note ceases to be
outstanding upon surrender of such Senior Note and replacement thereof pursuant
to Section 2.07.
If on a Redemption Date or a Maturity Date the Paying Agent (other
than LGII or an Affiliate of LGII) holds cash or U.S. Government Obligations
sufficient to pay all of the principal and interest due on the Senior Notes
payable on that date, and is not prohibited from paying such cash or U.S.
Government Obligations to the Holders of such Senior Notes pursuant to the terms
of this Indenture, then on and after that date such Senior Notes cease to be
outstanding and interest on them shall cease to accrue.
2.13. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by LGII or any of its Affiliates shall be disregarded, except that, for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Senior Notes that the Trustee knows
or has reason to know are so owned shall be disregarded.
2.14. TEMPORARY NOTES.
Until definitive Senior Notes are prepared and ready for delivery,
LGII may prepare and the Trustee shall authenticate temporary Senior Notes.
Temporary Senior Notes shall be substantially in the form of definitive Senior
Notes but may have variations that LGII considers appropriate for temporary
Senior Notes. Without unreasonable delay, LGII shall prepare and the Trustee
shall authenticate definitive Senior Notes in exchange for temporary Senior
Notes. Until such exchange, temporary Senior Notes shall be entitled to the
same rights, benefits and privileges as definitive Senior Notes.
2.15. CANCELLATION.
LGII at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Senior Notes surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than LGII or an Affiliate of LGII), and no one else, shall promptly
cancel and, at the written direction of LGII, shall dispose of all Senior Notes
surrendered for transfer, exchange, payment or cancellation. Subject to
Section 2.08, LGII may
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not issue new Senior Notes to replace Senior Notes that it has paid or delivered
to the Trustee for cancellation. If LGII shall acquire any of the Senior Notes,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Senior Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.15.
2.16. DEFAULTED INTEREST.
If LGII defaults on a payment of interest on the Senior Notes 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.
LGII shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 15 days before such special record date,
LGII shall mail to each Holder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
2.17. CUSIP NUMBER.
LGII in issuing the Senior Notes 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 Senior Notes, and that reliance may be placed
only on the other identification numbers printed on the Senior Notes. LGII will
promptly notify the Trustee of any change in the CUSIP number.
2.18. DEPOSIT OF MONEYS.
On or before each Interest Payment Date and Maturity Date, LGII shall
deposit with the Trustee or Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date or Maturity
Date, as the case may be.
ARTICLE THREE
REDEMPTION OF SENIOR NOTES
3.01. NOTICES TO THE TRUSTEE
Each series of Senior Notes may provide that such series of Senior
Notes is redeemable in whole or in part at the option of LGII. If LGII is
permitted to redeem Senior Notes of any series pursuant to the terms of such
series of Senior Notes, it shall notify the Trustee of the Redemption Date and
principal amount of Senior Notes to be redeemed.
LGII shall notify the Trustee by an Officer's Certificate, stating
that such redemption will comply with the provisions hereof and of such series
of Senior Notes, of any redemption at least 45 days before the Redemption date.
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3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all the Senior Notes of any series are to be redeemed,
the particular Senior Notes or portions thereof to be redeemed shall be selected
from the outstanding Senior Notes of such series not previously called for
redemption either (x) pro rata, by lot or by such other method as the Trustee
considers to be fair and appropriate or (y) in such manner as complies with the
requirements of the principal national securities exchange, if any, on which the
Senior Notes being redeemed are listed. The amounts to be redeemed shall be
equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify LGII and the Registrar in writing of
the Senior Notes selected for redemption and, in the case of any Senior Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Senior Notes shall relate, in
the case of any Senior Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Senior Note which has been or is to be
redeemed.
3.03. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Senior Notes to be redeemed, at the address of such
Holder appearing in the Senior Note register maintained by the Registrar.
All notices of redemption shall identify the Senior Notes to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(c) that, unless LGII defaults in making the redemption payment,
interest on Senior Notes called for redemption ceases to accrue
on and after the Redemption Date, and the only remaining right of
the Holders of such Senior Notes is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Senior
Notes redeemed;
(d) if any Senior Note is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple
thereof) of such Senior Note to be redeemed and that on and after
the Redemption Date, upon surrender for cancellation of such
original Senior Note to the Paying Agent, a new Senior Note or
Senior Notes in the aggregate principal amount equal to the
unredeemed portion thereof will be issued without charge to the
Holder;
(e) that Senior Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
(f) the CUSIP number, if any, relating to such Senior Notes, but no
representation is made as to the correctness or accuracy of any
such CUSIP numbers; and
(g) the paragraph of the Senior Notes pursuant to which the Senior
Notes are being redeemed.
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Notice of redemption of Senior Notes to be redeemed at the election of
LGII shall be given by LGII or, at LGII's written request, by the Trustee in the
name and at the expense of LGII.
3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Senior Notes called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Senior Notes called for
redemption shall be paid at the Redemption Price plus accrued and unpaid
interest to the Redemption Date.
3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, LGII shall deposit with the Paying
Agent an amount of money in same day funds sufficient to pay the Redemption
Price of, and accrued interest on, all the Senior Notes or portions thereof
which are to be redeemed on that date, other than Senior Notes or portions
thereof called for redemption on that date which have been delivered by LGII of
the Trustee for cancellation.
If LGII complies with the preceding paragraph, then, unless LGII
defaults in the payment of such Redemption Price, interest on the Senior Notes
to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Senior Notes are presented for payment. If any Senior Note
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal, premium, if any, and, to the extent lawful, accrued
and unpaid interest thereon shall, until paid, bear interest from the Redemption
Date at the rate provided in the Senior Notes.
3.06. SENIOR NOTES REDEEMED OR PURCHASED IN PART.
Upon surrender to the Paying Agent of a Senior Note which is to be
redeemed in part, LGII shall execute, the Guarantor shall Guarantee and the
Trustee shall authenticate and deliver to the Holder of such Senior Note without
service charge, a new Senior Note or Senior Notes (accompanied by a notation of
Guarantee duly endorsed by the Guarantor), of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange
for, the unredeemed portion of the principal of the Senior Note so surrendered
that is not redeemed.
ARTICLE FOUR
COVENANTS
Each of LGII and the Guarantor hereby jointly and severally covenant
as follows, from and after the Closing Date and continuing so long as any amount
remains unpaid on any Senior Note:
4.01. PAYMENT OF SENIOR NOTES.
Each of LGII and the Guarantor will pay, or cause to be paid, the
principal of and interest on the Senior Notes of each series on the dates and in
the manner provided in the Senior Notes and this Indenture. An installment of
principal or interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than LGII, the Guarantor, a Subsidiary of LGII, the
Guarantor 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 Senior Notes pursuant to
the terms of this Indenture.
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LGII or the Guarantor, as the case may be, will pay interest on
overdue principal at the rate and in the manner provided in the Senior Notes; it
shall pay interest on overdue installments of interest at the same rate and in
the same manner, to the extent lawful.
4.02. MAINTENANCE OF OFFICE OR AGENCY.
LGII will maintain in the Borough of Manhattan, The City of New York,
an office or agency where Senior Notes of each series may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon LGII in respect of the Senior Notes and this
Indenture may be served. LGII will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time LGII shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 11.02.
LGII may also from time to time designate one or more other offices or
agencies where the Senior Notes may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve LGII
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. LGII will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
LGII hereby initially designates the office of the Trustee located at
Shawmut Trust Company of New York, c/o First Chicago Trust Co. of New York, 00
Xxxx Xxxxxx, 0xx Xxxxx, Window No. 2, in the Borough of Xxxxxxxxx, Xxxx xx Xxx
Xxxx 00000, as such office of LGII in accordance with this Section 4.02.
4.03. CORPORATE EXISTENCE.
Subject to Article Five, each of LGII and the Guarantor 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 the Guarantor and the Restricted Subsidiaries (including, without
limitation, LGII); PROVIDED, HOWEVER, that the Guarantor and the Restricted
Subsidiaries shall not be required to preserve any such rights, licenses or
franchises if the Board of Directors of the Guarantor shall reasonably determine
that (x) the preservation thereof is no longer desirable in the conduct of the
business of the Guarantor and its Subsidiaries taken as a whole and (y) the loss
thereof is not materially adverse to either the Guarantor and its Subsidiaries
taken as a whole or to the ability of LGII or the Guarantor to otherwise satisfy
its obligations hereunder.
4.04. PAYMENT OF TAXES AND OTHER CLAIMS.
Each of LGII and the Guarantor 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 the Guarantor or any
of its Restricted Subsidiaries (including, without limitation, LGII) or upon the
income, profits or property of the Guarantor 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 the Guarantor or any
Restricted Subsidiary of the Guarantor; PROVIDED, HOWEVER, that neither LGII nor
the Guarantor shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim the amount, applicability
or validity of which is being contested in good faith by appropriate proceedings
and for which adequate provision has been made or where the failure to effect
such payment or discharge is not adverse in any material respect to the
Guarantor.
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4.05. MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND RECORDS;
COMPLIANCE WITH LAW.
(a) Each of LGII and the Guarantor 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 the Guarantor 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 the Guarantor or such Restricted Subsidiary, desirable in
the conduct of its business and if such discontinuance is not materially adverse
to either the Guarantor and its Subsidiaries taken as a whole or the ability of
LGII or the Guarantor to otherwise satisfy its obligations hereunder.
(b) Each of LGII and the Guarantor shall, and shall cause each of its
Restricted Subsidiaries (including, without limitation, LGII) to, maintain with
financially sound and reputable insurers such insurance as may be required by
law (other than with respect to any environmental impairment liability insurance
not commercially available) and such other insurance to such extent and against
such hazards and liabilities, as is customarily maintained by companies
similarly situated (which may include self-insurance in the same form as is
customarily maintained by companies similarly situated).
(c) Each of LGII and the Guarantor 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 the Guarantor and each Restricted
Subsidiary of the Guarantor and reflect on its financial statements adequate
accruals and appropriations to reserves, all in accordance with GAAP
consistently applied to the Guarantor and its Subsidiaries taken as a whole.
(d) Each of LGII and the Guarantor 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
the Guarantor and its Subsidiaries taken as a whole.
4.06. COMPLIANCE CERTIFICATE.
(a) Each of LGII and the Guarantor will deliver to the Trustee within
60 days after the end of each of the Guarantor's first three fiscal quarters and
within 90 days after the end of the Guarantor's fiscal year an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default under this Indenture by LGII or the Guarantor or an event which, with
notice or lapse of time or both, would constitute a default by LGII or the
Guarantor 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 the Guarantor beginning after the Issue
Date. The Guarantor shall also deliver a certificate to the Trustee at least
annually from its principal executive, financial or accounting officer as to his
or her knowledge of LGII's and the Guarantor'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) The Guarantor shall deliver to the Trustee within 90 days after
the end of each fiscal year a written statement by LGII's and the Guarantor's
independent chartered accountants stating (A) that their
31
audit examination has included a review of the terms of this Indenture and the
Senior Notes as they relate to accounting matters, and (B) whether, in
connection with their audit examination, any Default or Event of Default under
this Indenture or an event which, with notice or lapse of time or both, would
constitute a default under any Pari Passu Indebtedness has come to their
attention and, if such a Default, Event of Default or a default under any Pari
Passu Indebtedness has come to their attention, specifying the nature and period
of existence thereof; PROVIDED, HOWEVER, that, without any restriction as to the
scope of the audit examination, such independent certified public accountants
shall not be liable by reason of any failure to obtain knowledge of any such
Default, Event of Default or a default under any Pari Passu Indebtedness that
would not be disclosed in the course of an audit examination conducted in
accordance with GAAP.
(c) Each of LGII and the Guarantor will deliver to the Trustee as
soon as possible, and in any event within 10 days after LGII and/or the
Guarantor, as the case may be, becomes aware or should reasonably have become
aware of the occurrence of any Default, Event of Default or an event which, with
notice or lapse of time or both, would constitute a default by LGII and/or the
Guarantor, as the case may be, under any Indebtedness, an Officers' Certificate
specifying such Default, Event of Default or default and what action LGII and/or
the Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
4.07. LIMITATION ON INDEBTEDNESS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
create, incur, issue, assume, guarantee or in any manner become directly or
indirectly liable, contingently or otherwise, for the payment of (collectively,
to "incur") any Indebtedness (including, without limitation, any Acquired
Indebtedness) other than Permitted Indebtedness. Notwithstanding the foregoing
limitations, the Guarantor 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 the Guarantor is at least equal to
2.25 : 1.
4.08. LIMITATION ON RESTRICTED PAYMENTS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly:
(a) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Guarantor 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 the Guarantor or
any of its Restricted Subsidiaries (other than (x) dividends or
distributions payable solely in Capital Stock of the Guarantor (other than
Redeemable Capital Stock) or in options, warrants or other rights to
purchase Capital Stock of the Guarantor (other than Redeemable Capital
Stock) and (y) dividends or other distributions to the extent declared or
paid to the Guarantor or any Wholly-Owned Subsidiary of the Guarantor),
(b) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Guarantor or any of its Restricted
Subsidiaries (other than any such Capital Stock of a Wholly-Owned
Subsidiary of the Guarantor),
(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 Senior Notes or Pari Passu Indebtedness (other than any such
subordinated or Pari Passu Indebtedness owned by the Guarantor or a
Wholly-Owned Subsidiary of the Guarantor), or
32
(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 the Guarantor 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, the Guarantor 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 the Guarantor accrued on a cumulative basis during
the period beginning on the first day of the fiscal quarter of the Guarantor
during which the Measurement Date occurs and ending on the last day of the
fiscal quarter of the Guarantor 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 the Guarantor for
such period shall be a deficit, minus 100% of such deficit) PLUS (2) the
aggregate net cash proceeds received by the Guarantor or LGII (without
duplication) either (x) as capital contributions to the Guarantor or LGII
(without duplication) after the Measurement Date from any person (other than the
Guarantor, LGII or a Restricted Subsidiary of the Guarantor or LGII, as the case
may be) or (y) from the issuance or sale of Capital Stock (excluding Redeemable
Capital Stock, but including Capital Stock issued upon the conversion of
convertible Indebtedness or from the exercise of options, warrants or rights to
purchase Capital Stock (other than Redeemable Capital Stock)) of the Guarantor
or LGII (without duplication) to any person (other than to the Guarantor, LGII
or a Restricted Subsidiary of the Guarantor 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
the Guarantor 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 the Guarantor 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 the Guarantor, LGII or any Restricted Subsidiary
of the Guarantor or LGII in exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to the Guarantor 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 the Guarantor 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 Senior Notes and the Guarantee
by exchange for, or out of the net cash proceeds of, a substantially concurrent
(x) capital contribution to the Guarantor 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 the Guarantor 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 the Guarantor or LGII issued to any person (other than a
Related Obligor), so long as such Indebtedness is Pari Passu
33
Indebtedness or Indebtedness that is subordinate or junior in right of payment
to the Senior Notes and the Guarantee in the same manner and at least to the
same extent as the Indebtedness so purchased, exchanged, redeemed, acquired or
retired; (iv) so long as no Default or Event of Default shall have occurred and
be continuing, any redemption, repurchase or other acquisition or retirement of
Pari Passu Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to the Guarantor 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 the Guarantor 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 the Guarantor 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 Senior Notes and the Guarantee in the same manner and at least to the
same extent as the Indebtedness so purchased, exchanged, redeemed, acquired or
retired; (v) Investments constituting Restricted Payments made as a result of
the receipt of consideration that consists of cash or Cash Equivalents from any
Asset Sale made pursuant to and in compliance with Section 4.12; (vi) so long as
no Default or Event of Default has occurred and is continuing, repurchases by
the Guarantor of Common Stock of the Guarantor from employees of the Guarantor
or their authorized representatives upon the death, disability or termination of
employment of such employees, in an aggregate amount not exceeding $10,000,000
in any calendar year; (vii) Investments constituting Restricted Payments that
are permitted by subparagraphs (iv) and (v) of the proviso to Section 4.13; and
(viii) the declaration or the payment of dividends on, or the scheduled purchase
or redemption of, the Preferred Securities of a Special Finance Subsidiary or
the Series C Preferred Shares, of the Guarantor. 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 the Guarantor, LGII or a Restricted Subsidiary
of the Guarantor or LGII.
4.09. LIMITATION ON ISSUANCES AND SALE OF PREFERRED STOCK BY
RESTRICTED SUBSIDIARIES.
The Guarantor (a) will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to issue any Preferred Stock (other than
(i) Preferred Stock issued to the Guarantor or a Wholly-Owned Subsidiary of the
Guarantor 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 the Guarantor (other than (i) Preferred Stock owned by the
Guarantor or a Wholly-Owned Subsidiary of the Guarantor 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
the Guarantor owned by the Guarantor or any of its Restricted Subsidiaries in
compliance with the other provisions of this Indenture or (y) directors'
qualifying shares or investments by foreign nationals mandated by applicable
law.
4.10. LIMITATION ON LIENS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, create, incur, assume or
suffer to exist any Liens of any kind against or upon any of its property or
assets, or any proceeds therefrom where the aggregate amount of Indebtedness
secured by any such Liens, together with the aggregate amount of property
subject to any Sale-Leaseback Transactions of the Guarantor and its Restricted
Subsidiaries (other than Permitted Sale-Leaseback Transactions), exceeds 10% of
the Guarantor's Consolidated Net Worth, unless (x) in the case of Liens securing
Indebtedness that is subordinate or junior in right of payment to the Senior
Notes, the Senior Notes are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens and (y) in all other cases,
the Senior Notes are equally and ratably secured except for (a) Liens existing
as at the Measurement Date; (b) Liens securing the Senior Notes or the
34
Guarantee; (c) Liens in favor of the Guarantor, 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 the Guarantor or any of its Restricted Subsidiaries not
securing the Indebtedness so refinanced; and (e) Permitted Liens.
4.11. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, LGII will be, and the
Guarantor will ensure that LGII will be, obligated to make an offer to purchase
(a "Change of Control Offer"), and shall purchase, on a Business Day (the
"Change of Control Purchase Date") not more than 60 nor less than 30 days
following the occurrence of the Change of Control, all of the then outstanding
Senior Notes 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 plus accrued and unpaid interest, if any, to the Change of
Control Purchase Date. The Change of Control Offer is required to remain open
for at least 20 Business Days and until the close of business on the Change of
Control Purchase Date.
Notice of a Change of Control Offer shall be mailed by LGII not later
than the 30th day after the date of occurrence of the Change of Control to the
Holders of Senior Notes at their last registered addresses with a copy to the
Trustee and the Paying Agent. The Change of Control Offer shall remain open
from the time of mailing for at least 20 Business Days and until 5:00 p.m., New
York City time, on the Change of Control Purchase Date. The notice, which shall
govern the terms of the Change of Control Offer, shall include such disclosures
as are required by law and shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.11 and that all Senior Notes validly tendered into the Change of
Control Offer and not withdrawn will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Senior Note, the Change of Control Purchase Date and the date
on which the Change of Control Offer expires;
(c) that any Senior Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless LGII shall default in the payment of the purchase
price, any Senior Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Purchase Date;
(e) that Holders electing to have Senior Notes purchased pursuant to
a Change of Control Offer will be required to surrender their Senior Notes
to the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Change of Control Purchase Date and must
complete any form of letter of transmittal proposed by LGII and reasonably
acceptable to the Trustee and the Paying Agent;
(f) that Holders of Senior Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a tested telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Senior Notes the Holder delivered for purchase, the
Senior Note certificate number (if any) and a statement that such Holder is
withdrawing its election to have such Senior Notes purchased;
35
(g) that Holders whose Senior Notes are purchased only in part will
be issued Senior Notes equal in principal amount to the unpurchased portion
of the Senior Notes surrendered;
(h) the instructions that Holders must follow in order to tender
their Senior Notes; and
(i) information concerning the business of LGII and the Guarantor,
the most recent annual and quarterly reports of the Guarantor filed with
the Commission pursuant to the Exchange Act (or, if the Guarantor is not
then permitted to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 4.17), a description of material
developments in the business of LGII and the Guarantor, 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 Senior Notes in connection with the
decision of such Holder as to whether or not it should tender Senior Notes
pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, LGII shall (i) accept for
payment Senior Notes or portions thereof validly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Senior Notes or
portions thereof so tendered and accepted and (iii) deliver to the Trustee the
Senior Notes so accepted together with an Officers' Certificate setting forth
the Senior Notes or portions thereof tendered to and accepted for payment by
LGII. The Paying Agent shall promptly mail or deliver to the Holders of Senior
Notes so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Senior Note equal in principal amount to any unpurchased portion of the Senior
Note surrendered. Any Senior Notes not so accepted shall be promptly mailed or
delivered by LGII to the Holder thereof. LGII will publicly announce the
results of the Change of Control Offer not later than the first Business Day
following the Change of Control Purchase Date.
If a Change of Control occurs and LGII fails to pay the Purchase Price
for all Senior Notes properly tendered and not withdrawn, the Guarantor will be
obliged to purchase all such Senior Notes at the Change of Control Purchase
Price on the Change of Control Purchase Date in compliance with the requirements
applicable to a Change of Control Offer made by LGII.
LGII shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in a
manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by LGII and purchases all Senior
Notes validly tendered and not withdrawn under such Change of Control Offer.
LGII and the Guarantor 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 Senior Notes pursuant to a
Change of Control Offer.
4.12. DISPOSITION OF PROCEEDS OF ASSET SALES.
(a) The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) or First Capital Life
Insurance Company of Louisiana, National Capital Life Insurance Company,
Security Industrial Insurance Company, Security Industrial Fire Insurance
Company or any successors to such Subsidiaries to, make any Asset Sale unless
(a) the Guarantor 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,
36
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, the Guarantor 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 the Guarantor 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, the Guarantor shall cause LGII to make an offer to purchase (an
"Asset Sale Offer"), from all holders of each series of the Senior Notes, not
more than 40 Business Days thereafter, an aggregate principal amount of Senior
Notes equal to such Excess Proceeds, at a price in cash equal to 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
to the purchase date (the Asset Sale Offer Price").
(c) Notice of an Asset Sale Offer shall be mailed by LGII to all
Holders of Senior Notes not less than 20 Business Days nor more than 40
Business Days before the Asset Sale Purchase Date at their last registered
address with a copy to the Trustee and the Paying Agent. The Asset Sale Offer
shall remain open from the time of mailing for at least 20 Business Days and
until at least 5:00 p.m., New York City time, on the Asset Sale Purchase Date.
The notice, which shall govern the terms of the Asset Sale Offer, shall include
such disclosures as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.12;
(2) the Asset Sale Offer Price (including the amount of accrued
interest, if any) for each Senior Note, the Asset Sale Purchase Date and
the date on which the Asset Sale Offer expires;
(3) that any Senior Note not tendered or accepted for payment will
continue to accrue interest in accordance with the terms thereof;
(4) that, unless LGII shall default in the payment of the Asset Sale
Offer Price, any Senior Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Purchase
Date;
(5) that Holders electing to have Senior Notes purchased pursuant to
an Asset Sale Offer will be required to surrender their Senior Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the Asset Sale Purchase Date and must complete any form
of letter of transmittal proposed by LGII and reasonably acceptable to the
Trustee and the Paying Agent;
(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 Senior Notes
the Holder delivered for purchase, the Senior Note certificate number (if
any) and a statement that such Holder is withdrawing its election to have
such Senior Notes purchased;
(7) that if Senior Notes in a principal amount in excess of the
Holder's PRO RATA share of the amount of Excess Proceeds are tendered
pursuant to the Asset Sale Offer, LGII shall purchase Senior Notes on a PRO
RATA basis among the Senior Notes tendered (with such adjustments as may be
deemed
37
appropriate by LGII so that only Senior Notes in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Senior Notes are purchased only in part will
be issued new Senior Notes equal in principal amount to the unpurchased
portion of the Senior Notes surrendered;
(9) the instructions that Holders must follow in order to tender
their Senior Notes; and
(10) information concerning the business of LGII and the Guarantor,
the most recent annual and quarterly reports of the Guarantor filed with
the Commission pursuant to the Exchange Act (or, if the Guarantor 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 the Guarantor, 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 Senior Notes in connection with
the decision of such Holder as to whether or not it should tender Senior
Notes pursuant to the Asset Sale Offer.
(11) On the Asset Sale Purchase Date, LGII shall (i) accept for
payment, on a PRO RATA basis, Senior Notes or portions thereof tendered
pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent money,
in immediately available funds, in an amount sufficient to pay the Asset
Sale Offer Price of all Senior Notes or portions thereof so tendered and
accepted and (iii) deliver to the Trustee the Senior Notes so accepted
together with an Officers' Certificate setting forth the Senior Notes or
portions thereof tendered to and accepted for payment by LGII. The Paying
Agent shall promptly mail or deliver to Holders of Senior Notes so accepted
payment in an amount equal to the Asset Sale Offer Price, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new
Senior Note equal in principal amount to any unpurchased portion of the
Senior Note surrendered. Any Senior Notes not so accepted shall be
promptly mailed or delivered by LGII to the Holder thereof. LGII will
publicly announce the results of the Asset Sale Offer not later than the
first Business Day following the Asset Sale Purchase Date. To the extent
that the aggregate principal amount of Senior Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, LGII or the Guarantor,
as the case may be, may use such deficiency for general corporate purposes.
Upon completion of such Asset Sale Offer, the amount of Excess Proceeds
shall be reset to zero. For purposes of this Section 4.12, the Trustee
shall act as Paying Agent.
(12) LGII and the Guarantor 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 Senior
Notes pursuant to the Asset Sale Offer.
4.13. LIMITATION ON TRANSACTIONS WITH INTERESTED PERSONS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
enter into or suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, transfer, disposition, purchase,
exchange or lease of assets, property or services) with, or for the benefit of,
any Affiliate of the Guarantor 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 the
Guarantor or such Restricted Subsidiary, as the case may be, than those
38
which could have been obtained in a comparable transaction at such time from
persons who are not Affiliates of the Guarantor 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, the Guarantor has
obtained a written opinion from an Independent Financial Advisor stating that
the terms of such transaction or series of transactions are fair to the
Guarantor 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,
the Guarantor 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 the Guarantor (including a majority of the disinterested
directors); PROVIDED, HOWEVER, that this covenant will not restrict the
Guarantor from (i) paying dividends in respect of its Capital Stock permitted
under Section 4.08, (ii) paying reasonable and customary fees to directors of
the Guarantor or any Restricted Subsidiary who are not employees of the
Guarantor 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 the Guarantor, (iv) making loans or advances to senior
officers and directors of the Guarantor 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 the Guarantor or
any Restricted Subsidiaries in connection with the Guarantor'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, employees or consultants of the Guarantor and its Restricted
Subsidiaries for travel and moving expenses in the ordinary course of
business for bona fide business purposes of the Guarantor and its Restricted
Subsidiaries, (vii) making other loans or advances to officers, employees or
consultants of the Guarantor and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes of the Guarantor 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 the
Guarantor or its Restricted Subsidiaries pursuant to obligations undertaken,
at a time when such persons were not officers or employees of the Guarantor
or its Restricted Subsidiaries, in connection with arms' length Asset
Acquisitions or (ix) declaring or paying dividends on, or purchasing or
redeeming, the Preferred Securities of a Special Finance Subsidiary.
4.14. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Restricted Subsidiary of the Guarantor 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 the Guarantor or any
other Restricted Subsidiary of the Guarantor, (c) make loans or advances to, or
any Investment in, the Guarantor or any other Restricted Subsidiary of the
Guarantor, (d) transfer any of its properties or assets to the Guarantor or any
other Restricted Subsidiary of the Guarantor or (e) guarantee any Indebtedness
of the Guarantor or any other Restricted Subsidiary of the Guarantor, 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 the Guarantor or any Restricted Subsidiary of
the Guarantor, (iii) customary restrictions on transfers of property subject to
a Lien permitted under the provisions of this Indenture which could not
materially adversely affect the Guarantor's ability to satisfy its obligations
under the provisions of this Indenture and the Senior Notes, (iv) any agreement
or other instrument of a person acquired by the Guarantor or any Restricted
Subsidiary of the Guarantor (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
39
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 Senior Notes) and encumbrances and
restrictions in permitted refinancings or replacements thereof which are no less
favorable to the holders of the Senior Notes than those contained in the
Indebtedness so refinanced or replaced.
4.15. LIMITATIONS ON SALE-LEASEBACK TRANSACTIONS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, enter into any
Sale-Leaseback Transaction with respect to any property of the Guarantor 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 the Guarantor and its Restricted Subsidiaries (other
than Permitted Liens), exceeds 10% of the Guarantor's Consolidated Net Worth.
Notwithstanding the foregoing, the Guarantor 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 the Guarantor 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), the Guarantor
would be able to incur $1.00 of additional Indebtedness pursuant to 4.07
(assuming a market rate of interest with respect to such additional
Indebtedness).
4.16. LIMITATION ON APPLICABILITY OF CERTAIN COVENANTS.
During any period of time that (i) the ratings assigned to the Senior
Notes by each of S&P and Xxxxx'x (collectively, the "Rating Agencies") are no
less than BBB-and Baa3, respectively (the "Investment Grade Ratings"), and (ii)
no Default or Event of Default has occurred and is continuing, the Guarantor 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
the Guarantor 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 Senior Notes) and compliance with the Suspended
Covenants with respect to Restricted Payments made after the time of such
withdrawal or downgrade will be calculated in accordance with the covenant
contained in Section 4.07 as if such covenant had been in effect at all times
after the Measurement Date.
4.17 COMMISSION REPORTS.
The Guarantor shall file with the Commission, or if not permitted or
required to so file will deliver to the Trustee, the annual reports, quarterly
reports and the information, documents and other reports required to be filed
with the Commission pursuant to Sections 13 and 15 of the Exchange Act, whether
or not the Guarantor has a class of securities registered under the Exchange
Act. In accordance with the provisions of TIA Section 314(a), the Guarantor
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 the Guarantor would have been required to make such
filing), copies of such reports. The Guarantor also shall comply with the other
provisions of TIA Section 314(a). In addition, the Guarantor 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 the
Guarantor's stockholders, to the Holders at their addresses as set forth in the
register of securities maintained by the Registrar.
4.18. RULE 144A INFORMATION REQUIREMENT.
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If at any time the Guarantor is no longer subject to the reporting
requirements of the Exchange Act, it will furnish to the Holders or beneficial
holders of the Senior Notes and prospective purchasers of the Senior Notes
designated by the holders of the Senior Notes, upon their request, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
4.19. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of LGII and the Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive LGII
or the Guarantor, as the case may be, from paying all or any portion of the
principal of, premium, if any, or interest on the Senior Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each of LGII and the Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
5.01. WHEN LGII MAY MERGE, ETC.
(a) The Guarantor will not, and will not permit LGII to, in any
transaction or series of transactions, merge or consolidate with or into, or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to, any person
or persons, and the Guarantor 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 the Guarantor or LGII or the Guarantor 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, the Guarantor 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 the Guarantor, LGII or such Restricted
Subsidiary, as the case may be, is merged or to which the properties and
assets of the Guarantor, 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 Senior Notes and the
performance and observance of every covenant and obligation of this Indenture
and the Senior Notes on the part of the Guarantor or LGII, as the case may
be, 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 the Guarantor, 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
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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 the Guarantor, LGII or the
Surviving Entity, as the case may be, is at least equal to the Consolidated
Net Worth of the Guarantor or LGII, as the case may be, immediately before
such transaction or series of transactions; and (d) the Guarantor, LGII or
the Surviving Entity, as the case may be, shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each in form and
substance reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition and, if a supplemental indenture is required in connection with
such transaction or series of transactions, such supplemental indenture,
complies with this Indenture and that all conditions precedent herein
provided for relating to such transaction or series of transactions have been
complied with; PROVIDED, HOWEVER, that solely for purposes of computing
amounts described in subclause (C) of Section 4.08, any such successor person
shall only be deemed to have succeeded to and be substituted for the
Guarantor or LGII, as the case may be, with respect to periods subsequent to
the effective time of such merger, consolidation or transfer of assets.
5.02. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Guarantor or LGII in accordance with Section 5.01 hereof, the
successor person or persons formed by such consolidation or into which the
Guarantor or LGII is merged or the successor person to which such sale,
assignment, conveyance, transfer, lease or other disposition is made, shall
succeed to, and be substituted for, and may exercise every right and power of,
the Guarantor or LGII, as the case may be, under this Indenture and the Senior
Notes with the same effect as if such successor had been named as the Guarantor
or LGII, as the case may be, herein; PROVIDED, HOWEVER, that solely for purposes
of computing amounts described in subclause (C) of Section 4.08, any such
successor person shall only be deemed to have succeeded to and be substituted
for the Guarantor or LGII, as the case may be, with respect to periods
subsequent to the effective time of such merger, consolidation or transfer of
assets.
ARTICLE SIX
REMEDIES
6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to each series of Senior Notes
means any of the following events:
(a) default in the payment of the principal of or premium, if any, on
any Senior Note of such series when the same becomes due and payable (upon
Stated Maturity, acceleration, optional redemption, required purchase,
scheduled principal payment or otherwise); or
(b) default in the payment of an installment of interest on any of
the Senior Notes of such series, when the same becomes due and payable, and
any such Default continues for a period of 30 days; or
(c) failure to perform or observe any other term, covenant or
agreement contained in the Senior Notes of such series or the Guarantee
with respect to Senior Notes of such series or pursuant to
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the provisions of this Indenture (other than Defaults specified in clause
(a) or (b) above) and such Default continues for a period of 30 days after
written notice of such Default requiring the Guarantor and LGII to remedy
the same shall have been given (i) to the Guarantor and LGII by the Trustee
or (ii) to Guarantor, LGII and the Trustee by Holders of at least 25% in
aggregate principal amount of the Senior Notes 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
the Guarantor or any Restricted Subsidiary of the Guarantor (including,
without limitation, LGII) then has outstanding Indebtedness in excess of
$20,000,000 (including Senior Notes 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 the Guarantor or any Restricted
Subsidiary of the Guarantor (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 the Guarantor or any of its Restricted Subsidiaries
(including, without limitation, LGII) shall commence judicial proceedings
to foreclose upon assets of the Guarantor 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) the Guarantor or any Significant Subsidiary of the Guarantor
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
a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Guarantor or any Significant
Subsidiary of the Guarantor in an involuntary case or proceeding,
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(2) appoints a Custodian of the Guarantor or any Significant
Subsidiary of the Guarantor for all or substantially all of its
properties, or
(3) orders the liquidation of the Guarantor or any Significant
Subsidiary of the Guarantor,
and in each case the order or decree remains unstayed and in effect for 60
days; or
(a) the Guarantee with respect to such series ceases to be in full
force and effect or is declared null and void, or the Guarantor denies that
it has any further liability under the Guarantee with respect to such
series, or gives notice to such effect and such condition shall have
continued for a period of 60 days after written notice of such failure
(which notice shall specify the Default, demand that it be remedied and
state that it is a "Notice of Default") requiring the Guarantor and LGII to
remedy the same shall have been given (x) to the Guarantor and LGII by the
Trustee or (y) to the Guarantor, LGII and the Trustee by Holders of at
least 25% in aggregate principal amount of the Senior Notes of any series
then outstanding.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall
not be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to a Trust Officer at the Corporate Trust
Office of the Trustee by LGII, the Guarantor, the Paying Agent, any Holder, any
holder of Indebtedness or any of their respective agents.
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 Senior Notes of any
series, the Trustee, by written notice to the Guarantor and LGII, or the Holders
of at least 25% in aggregate principal amount of the Senior Notes of such series
then outstanding, by written notice to the Trustee, the Guarantor and LGII, may
declare the principal of, premium, if any, and accrued and unpaid interest, if
any, on all of the Senior Notes of such series to be due and payable
immediately, upon which declaration, all amounts payable in respect of the
Senior Notes 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 principal of, premium, if any, and accrued and unpaid interest, if any,
on all of the Senior Notes shall IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of Senior Notes.
After a declaration of acceleration hereunder with respect to the
Senior Notes 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 Senior Notes of such series, by
written notice to the Guarantor, LGII and the Trustee, may rescind such
declaration if (a) the Guarantor or LGII has paid or deposited with the Trustee
a sum sufficient to pay (i) all amounts due the Trustee under Section 7.08 and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, (ii) all overdue interest on all Senior Notes
of such series, (iii) the principal of and premium, if any, on any Senior Notes
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Senior Notes 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 Senior Notes 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 Senior
Notes of such series that has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.04.
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No such rescission shall affect any subsequent Default or Event of
Default or impair any right subsequent therein.
6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, or interest on the Senior Notes or to
enforce the performance of any provision of the Senior Notes or this Indenture.
All rights of action and claims under this Indenture or the Senior
Notes may be enforced by the Trustee even if it does not possess any of the
Senior Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of
any other remedy. All available remedies are cumulative to the extent permitted
by law.
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 Senior
Notes of any series by notice to the Trustee may, on behalf of the Holders of
all the Senior Notes of any such series, waive any existing Default or Event of
Default and its consequences, except a Default or Event of Default specified in
Section 6.01(a) or (b) or in respect of any provision hereof which cannot be
modified or amended without the consent of the Holder so affected pursuant to
Section 9.02. When a Default or Event of Default is so waived, it shall be
deemed cured and shall cease to exist.
6.05. CONTROL BY MAJORITY.
The Holders of not less than a majority in aggregate principal amount
of the outstanding Senior Notes shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, PROVIDED, HOWEVER,
that the Trustee may refuse to follow any direction (a) that conflicts with any
rule of law or this Indenture, (b) that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder, or (c) that may expose the
Trustee to personal liability unless the Trustee has been provided reasonable
indemnity against any loss or expense caused by its following such direction;
and PROVIDED, FURTHER, that the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction.
6.06. LIMITATION ON SUITS.
No Holder of any Senior Notes of any series shall have any right to
institute any proceeding or pursue any remedy with respect to this Indenture or
the Senior Notes of such series unless:
(1) the Holder gives written notice to the Trustee of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
outstanding Senior Notes of such series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee reasonable indemnity against any loss, liability or expense;
45
(4) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, provision of
indemnity; and
(5) during such 30-day period the Holders of a majority in aggregate
principal amount of the outstanding Senior Notes do not give the Trustee a
direction which is inconsistent with the request;
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of, premium, if any, or
accrued interest on, such Senior Note on or after the respective due dates set
forth in such Senior Note.
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
6.07. RIGHT OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision in this Indenture, the right of
any Holder of a Senior Note to receive payment of the principal of, premium, if
any, and interest on such Senior Note, on or after the respective Stated
Maturities expressed in such Senior Note, or to bring suit for the enforcement
of any such payment on or after the respective Stated Maturities, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in clause (a) or (b) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against LGII, the Guarantor or any other obligor
on the Senior Notes for the whole amount of principal of, premium, if any, and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Senior
Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
6.09. TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Guarantor, LGII or
the Subsidiaries of the of the Guarantor and LGII (or any other obligor upon the
Senior Notes), their creditors or their property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.08. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Senior Notes or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
6.10. PRIORITIES.
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If the Trustee collects any money pursuant to this Article Six, it
shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.08;
Second: to the Holders for interest accrued on the Senior Notes,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior Notes for interest;
Third: to the Holders for principal amounts (including any premium)
owing under the Senior Notes, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Senior Notes for
principal (including any premium); and
Fourth: the balance, if any, to LGII or the Guarantor, as the case
may be.
The Trustee, upon prior written notice to LGII, may fix a record date
and payment date for any payment to Noteholders pursuant to this Section 6.10.
6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
aggregate principal amount of the outstanding Senior Notes.
6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or any Senior Note or the Guarantee and
such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case LGII, the Guarantor, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
ARTICLE SEVEN
TRUSTEE
7.01. DUTIES.
(a) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default,
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(1) the Trustee need perform only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05;
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01 hereof and the provisions of TIA Section 315:
(a) the Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 11.04 and 11.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(c) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) the Trustee shall not be liable for any action taken or omitted
by it in good faith and reasonably believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture
other than any liabilities arising out of its own negligence.
48
(e) the Trustee may consult with counsel of its own choosing and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit.
(g) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee, any Paying Agent, Registrar or any other agent of LGII or
the Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Senior Notes and, subject to Sections 7.11 and 7.12 and TIA Sections
310 and 311, may otherwise deal with LGII, the Guarantor and their Subsidiaries
with the same rights it would have if it were not the Trustee, Paying Agent,
Registrar or such other agent.
7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Senior Notes or of the Guarantee, it shall not be
accountable for LGII's use or application of the proceeds from the Senior Notes,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee and it shall not be responsible for any
statement in the Senior Notes other than the Trustee's certificate of
authentication.
7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
Default or Event of Default within 30 days thereafter; PROVIDED, HOWEVER, that,
except in the case of a Default in the payment of the principal of, premium, if
any, or interest on any Senior Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee of the board of directors or a committee of the directors of the
Trustee and/or Trust Officers in good faith determines that the withholding of
such notice is in the interest of the Holders.
7.06. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required herein
or by law. The Trustee shall not be under any liability for interest on any
moneys received by it hereunder, except as the Trustee may agree with LGII.
7.07. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA Section 313(a) shall have occurred
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within the previous twelve months, but not otherwise, mail to each Holder a
brief report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to LGII and filed with the Commission and each securities exchange, if
any, on which the Senior Notes are listed.
LGII shall notify the Trustee in writing if the Senior Notes become
listed on any securities exchange.
7.08. COMPENSATION AND INDEMNITY.
LGII and the Guarantor covenant and agree to pay the Trustee from time
to time reasonable compensation for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. LGII and the Guarantor shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
LGII and the Guarantor shall indemnify the Trustee for, and hold it
harmless against, any loss or liability incurred by it arising out of or in
connection with the administration of this trust and its rights or duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee shall notify LGII and the Guarantor
promptly of any claim asserted against the Trustee for which it may seek
indemnity. LGII and the Guarantor shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and LGII and
the Guarantor shall pay the reasonable fees and expenses of such counsel. LGII
and the Guarantor need not pay for any settlement made without its prior written
consent. LGII and the Guarantor need not reimburse any expense or indemnify
against any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the payment obligations of LGII and the Guarantor in this
Section 7.08, the Trustee shall have a Lien prior to the Senior Notes on all
assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal of, premium, if any, or interest on
particular Senior Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01(g) or (h), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of LGII and the Guarantor under this Section 7.08 and
any Lien arising hereunder shall survive the resignation or removal of any
trustee, the discharge of the obligations of LGII and the Guarantor pursuant to
Article Eight and/or the termination of this Indenture.
7.09. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying LGII. The Holders of a
majority in principal amount of the outstanding Senior Notes may remove the
Trustee by so notifying LGII and the Trustee and may appoint a successor trustee
with LGII's prior written consent. LGII may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
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(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, LGII shall notify each Holder of such event
and shall promptly appoint a successor Trustee. The Trustee shall be entitled
to payment of its fees and reimbursement of its expenses while acting as
Trustee, and to the extent such amounts remain unpaid, the Trustee that has
resigned or has been removed shall retain the Lien afforded by Section 7.08.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Senior Notes may, with LGII's
prior written consent, appoint a successor Trustee to replace the successor
Trustee appointed by LGII.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to LGII. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.08, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, of LGII or the
Holders of at least 10% in principal amount of the outstanding Senior Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.11, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.09, the obligations of LGII and the Guarantor under Section 7.08 shall
continue for the benefit of the retiring Trustee.
7.10. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall, if such resulting, surviving or transferee corporation or national
banking association is otherwise eligible hereunder, be the successor Trustee.
7.11. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(5) and which
shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST LGII.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). If the present or any
future Trustee shall resign or be removed, it shall be subject to TIA Section
311(a) to the extent provided therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
8.01. TERMINATION OF THE OBLIGATIONS OF LGII AND THE GUARANTOR.
Each of LGII and the Guarantor may terminate its obligations under the
Senior Notes of any series and this Indenture, except those obligations referred
to in the penultimate paragraph of this Section 8.01, if all Senior Notes of
such series previously authenticated and delivered (other than destroyed, lost
or stolen Senior Notes which have been replaced or paid or Senior Notes for
whose payment money has theretofore been deposited with the Trustee or the
Paying Agent in trust or segregated and held in trust by LGII and thereafter
repaid to LGII, as provided in Section 8.04) have been delivered to the Trustee
for cancellation and the Guarantor or LGII has paid all sums payable by it
hereunder, or if:
(a) either (i) pursuant to Article Three, LGII shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of
the redemption of all of the Senior Notes of such series under arrangements
satisfactory to the Trustee for the giving of such notice or (ii) all
Senior Notes of such series have otherwise become due and payable
hereunder;
(b) the Guarantor or LGII shall have irrevocably deposited or caused
to be deposited with the Trustee or a trustee reasonably satisfactory to
the Trustee, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds in trust solely for
the benefit of the Holders for that purpose, money in such amount as is
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, and interest on the outstanding Senior Notes
of such series to maturity or redemption, as certified in a certificate of
a nationally recognized firm of independent public accountants; PROVIDED
that the Trustee shall have been irrevocably instructed to apply such money
to the payment of said principal, premium, if any, and interest with
respect to the Senior Notes of such series;
(c) no Default or Event of Default with respect to this Indenture or
the Senior Notes of such series shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute a
default under, any other instrument to which LGII or the Guarantor is a
party or by which it is bound;
(d) LGII or the Guarantor shall have paid all other sums payable by
it hereunder;
(e) LGII or the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for the termination of LGII's and the
Guarantor's obligation under the Senior Notes of such series, the related
Guarantee and this Indenture have been complied with.
Notwithstanding the foregoing paragraph, LGII's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02 and 7.08 and the Guarantor's
obligations in respect thereof shall survive until the Senior Notes of
52
such series are no longer outstanding pursuant to Section 2.12. After the
Senior Notes of such series are no longer outstanding, LGII obligations in
Sections 7.08, 8.03, 8.04 and 8.05 and the Guarantor's obligations in respect
thereof Guarantor or LGII, as the case may be, shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of LGII's and the Guarantor's
obligations under the Senior Notes of such series except for those surviving
obligations specified above.
8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) Each of LGII and the Guarantor may, at its option by Board
Resolution of the Board of Directors of the Guarantor or LGII, as the case may
be, at any time, with respect to the Senior Notes of any series, elect to have
either paragraph (b) or paragraph (c) below be applied to the outstanding Senior
Notes of such series upon compliance with the conditions set forth in
paragraph (d).
(b) Upon LGII's or the Guarantor's exercise under paragraph (a) of
the option applicable to this paragraph (b), LGII and the Guarantor shall be
deemed to have been released and discharged from its obligations with respect to
the outstanding Senior Notes of any series on the date the conditions set forth
below are satisfied (hereinafter, "legal defeasance"). For this purpose, such
legal defeasance means that LGII shall be deemed to have paid and discharged the
entire indebtedness represented by the outstanding Senior Notes of such series,
which shall thereafter be deemed to be "outstanding" only for the purposes of
paragraph (e) below and the other Sections of and matters under this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Senior Notes and this Indenture insofar as such Senior
Notes are concerned (and the Trustee, at the expense of LGII, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Senior Notes of such series to receive solely from the
trust fund described in paragraph (d) below and as more fully set forth in such
paragraph, payments in respect of the principal of, premium, if any, and
interest on such Senior Notes when such payments are due, (ii) LGII's
obligations with respect to such Senior Notes under Sections 2.06, 2.07 and
4.02, and, with respect to the Trustee, under Section 7.08 and the Guarantor's
obligations in respect thereof, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article Eight. Subject to
compliance with this Section 8.02, LGII may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) below with respect to the Senior Notes of such series.
(c) Upon the exercise by LGII and the Guarantor under paragraph (a)
of the option applicable to this paragraph (c), each of LGII and the Guarantor
shall be released and discharged from its obligations under any covenant
contained in Article Five and in Sections 4.07 through 4.17 with respect to the
outstanding Senior Notes of any series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the Senior
Notes of such series shall thereafter be deemed to be not "outstanding" for the
purpose of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Senior Notes, LGII and the Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under
Section 6.01(c), but, except as specified above, the remainder of this Indenture
and such Senior Notes shall be unaffected thereby.
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(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Senior Notes of any
series:
(1) LGII shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 7.11 who shall agree to comply with the provisions of this
Section 8.02 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Senior Notes,
(x) cash, in United States dollars, in an amount or (y) direct non-callable
obligations of, or non-callable obligations guaranteed by, the United
States of America for the payment of which guarantee or obligation the full
faith and credit of the United States is pledged ("U.S. Government
Obligations") maturing as to principal, premium, if any, and interest in
such amounts of cash, in United States dollars, and at such times as are
sufficient without consideration of any reinvestment of such interest, to
pay principal of, premium, if any, and interest on the outstanding Senior
Notes of such series not later than one day before the due date of any
payment, or (z) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge principal of, premium, if any, and interest
on the outstanding Senior Notes of such series (except lost, stolen or
destroyed Senior Notes which have been replaced or repaid) on the Maturity
Date thereof or otherwise in accordance with the terms of this Indenture
and of such Senior Notes; PROVIDED, HOWEVER, that the Trustee (or other
qualifying trustee) shall have received an irrevocable written order from
LGII instructing the Trustee (or other qualifying trustee) to apply such
money or the proceeds of such U.S. Government Obligations to said payments
with respect to the Senior Notes of such series;
(2) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Senior Notes of such series shall have occurred and be
continuing on the date of such deposit or, insofar as Section 6.01(a) is
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(3) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of
LGII or the Guarantor;
(4) such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other material agreement or instrument to
which LGII or the Guarantor is a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, LGII shall
have delivered to the Trustee an Opinion of Counsel stating that (x) LGII
has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the outstanding Senior Notes of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such legal
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such legal defeasance had not occurred;
(6) in the case of an election under paragraph (c) above, LGII shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Senior Notes of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
54
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred;
(7) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel to the effect that, (x) the trust funds will
not be subject to any rights of any other holders of Indebtedness of LGII
or the Guarantor, and (y) after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable Bankruptcy
Law; PROVIDED, HOWEVER, that if a court were to rule under any such law in
any case or proceeding that the trust funds remained property of LGII or
the Guarantor, no opinion needs to be given as to the effect of such laws
on the trust funds except the following: (A) assuming such trust funds
remained in the Trustee's possession prior to such court ruling to the
extent not paid to Holders of Senior Notes of such series, the Trustee will
hold, for the benefit of the Holders of Senior Notes of such series, a
valid and enforceable security interest in such trust funds that is not
avoidable in bankruptcy or otherwise, subject only to principles of
equitable subordination, (B) the Holders of Senior Notes of such series
will be entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used, and (C) no property, rights in
property or other interests granted to the Trustee or the Holders of Senior
Notes of such series in exchange for or with respect to any of such funds
will be subject to any prior rights of any other person, subject only to
prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy
Code (or any section of any other Bankruptcy Law having the same effect),
but still subject to the foregoing clause (B); and
(8) LGII shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that (x) all conditions precedent
provided for relating to either the legal defeasance under paragraph (b)
above or the covenant defeasance under paragraph (c) above, as the case may
be, have been complied with and (y) if any other Indebtedness of LGII or
the Guarantor shall then be outstanding or committed, such legal defeasance
or covenant defeasance will not violate the provisions of the agreements or
instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d)
above in respect of the outstanding Senior Notes of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Senior Notes and this Indenture, to the payment, either directly or through any
Paying Agent (other than LGII or any Affiliate of LGII) as the Trustee may
determine, to the Holders of such Senior Notes of all sums due and to become due
thereon in respect of principal, premium and interest, but such money need not
be segregated from other funds except to the extent required by law.
LGII shall, and the Guarantor shall cause LGII to pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to paragraph (d) above or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Senior Notes of such series.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to LGII from time to time upon the request, in
writing, by LGII any money or U.S. Government Obligations held by it as provided
in paragraph (d) above which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
8.03. APPLICATION OF TRUST MONEY.
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The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.01 and 8.02, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Senior Notes of each series.
8.04. REPAYMENT TO LGII OR GUARANTOR.
Subject to Sections 7.08, 8.01 and 8.02, the Trustee shall promptly
pay to LGII or if deposited with the Trustee by the Guarantor, to the Guarantor,
upon receipt by the Trustee of an Officers' Certificate, any excess money,
determined in accordance with Section 8.02, held by it at any time. The Trustee
and the Paying Agent shall pay to LGII or the Guarantor, upon receipt by the
Trustee or the Paying Agent, as the case may be, of an Officers' Certificate,
any money held by it for the payment of principal, premium, if any, or interest
that remains unclaimed for two years after payment to the Holders is required;
PROVIDED, HOWEVER, that the Trustee and the Paying Agent before being required
to make any payment may, but need not, at the expense of LGII cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein, which shall be at least 30
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to LGII. After payment to LGII or the
Guarantor, Holders entitled to money must look solely to LGII and the Guarantor
for payment as general creditors unless an applicable abandoned property law
designates another person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
8.05. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
and only then LGII's and the Guarantor's obligations under this Indenture and
the Senior Notes 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 LGII or the Guarantor
has made any payment of principal of, premium, if any, or interest on any Senior
Notes of such series because of the reinstatement of its obligations, LGII or
the Guarantor, as the case may be, shall be subrogated to the rights of the
Holders of such Senior Notes 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
9.01. WITHOUT CONSENT OF HOLDERS.
LGII, when authorized by a Board Resolution of its Board of Directors,
and the Trustee may amend, waive or supplement this Indenture or the Senior
Notes without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article Five;
(c) to provide for uncertificated Senior Notes in addition to
certificated Senior Notes;
56
(d) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder.
Notwithstanding the above, the Trustee and LGII may not make any
change that adversely affects the rights of any Holders hereunder. LGII shall
be required to deliver to the Trustee an Opinion of Counsel stating that any
such change made pursuant to paragraph (a) or (e) of this Section 9.01 does not
adversely affect the rights of any Holder.
9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.04, LGII, when authorized by a Board Resolution
of its Board of Directors, and the Trustee may amend this Indenture or the
Senior Notes with the written consent of the Holders of not less than a majority
in aggregate principal amount of each series of the Senior Notes then
outstanding, and the Holders of not less than a majority in aggregate principal
amount of the Senior Notes of such series then outstanding by written notice to
the Trustee may waive future compliance by LGII or the Guarantor with any
provision of this Indenture, the Guarantee or the Senior Notes.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(a) reduce the percentage in outstanding aggregate principal amount
of such series of Senior Notes the Holders of which must consent to an
amendment, supplement or waiver of any provision of this Indenture, the
Guarantee or the Senior Notes;
(b) reduce or change the rate or time for payment of interest on any
Senior Note;
(c) change the currency in which any Senior Note, or any premium or
interest thereon, is payable;
(d) reduce the principal amount outstanding of or extend the fixed
maturity of any Senior Note or alter the redemption provisions with respect
thereto;
(e) waive a default in the payment of the principal of, premium, if
any, or interest on, or redemption or an offer to purchase required
hereunder with respect to, any Senior Note;
(f) make the principal of, premium, if any, or interest on any Senior
Note payable in money other than that stated in the Senior Note;
(g) modify this Section 9.02 or Section 6.04 or Section 6.07;
(h) amend, alter, change or modify the obligation of LGII to make and
consummate a Change of Control Offer in the event of a Change of Control or
make and consummate the offer with respect to any Asset Sale or modify any
of the provisions or definitions with respect thereto;
(i) modify or change any provision of this Indenture affecting the
subordination or ranking of the Senior Notes or the Guarantee in a manner
adverse to the Holders;
57
(j) impair the right to institute suit for the enforcement of any
payment on or with respect to the Senior Notes of such series.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, LGII shall mail to the Holder of each Senior Note affected
thereby, with a copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of LGII to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
amendment, supplement or waiver.
9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment of or supplement to this Indenture, the Guarantee or
each series of the Senior Notes shall comply with the TIA as then in effect.
9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by such Holder and every subsequent
Holder of that Senior Note or portion of that Senior Note that evidences the
same debt as the consenting Holder's Senior Note, even if notation of the
consent is not made on any Senior Note. However, any such Holder or subsequent
Holder may revoke the consent as to his Senior Note or portion of a Senior Note
prior to such amendment, supplement or waiver becoming effective. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. Notwithstanding the above, nothing in this paragraph shall impair
the right of any Holder under Section 316(b) of the TIA.
LGII may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
second and third sentences of the immediately preceding paragraph, those persons
who were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not such persons
continue to be Holders after such record date. Such consent shall be effective
only for actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder; unless it makes a change described in any of clauses (a)
through (j) of Section 9.02; if it makes such a change, the amendment,
supplement or waiver shall bind every subsequent Holder of a Senior Note or
portion of a Senior Note that evidences the same debt as the consenting Holder's
Senior Note.
9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES.
If an amendment, supplement or waiver changes the terms of a Senior
Note of any series, the Trustee shall (in accordance with the specific direction
of LGII) request the Holder of the Senior Note to deliver it to the Trustee.
The Trustee shall (in accordance with the specific direction of LGII) place an
appropriate notation on the Senior Note about the changed terms and return it to
the Holder. Alternatively, if LGII or the Trustee so determines, LGII in
exchange for the Senior Note shall issue and the Trustee shall authenticate a
new Senior Note
58
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Senior Note shall not affect the validity and effect of such
amendment, supplement or waiver.
9.06. TRUSTEE MAY SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture, that it is
not inconsistent herewith and that it will be valid and binding upon LGII in
accordance with its terms.
ARTICLE TEN
GUARANTEE OF SENIOR NOTES
10.01. GUARANTEE.
Subject to the provisions of this Article Ten, the Guarantor hereby
unconditionally guarantees to each Holder of a Senior Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Senior
Notes or the obligations of LGII to the Holders or the Trustee hereunder or
thereunder, that: (a) the principal of, premium, if any, and interest on the
Senior Notes will be duly and punctually paid in full when due, whether at
maturity, by acceleration or otherwise, and interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Senior Notes and
all other obligations of LGII to the Holders or the Trustee hereunder or
thereunder (including fees, expenses or other) will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Senior Notes, the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of LGII to the Holders, for whatever reason,
the Guarantor will be obligated to pay, or to perform or cause the performance
of, the same immediately. An Event of Default under this Indenture or the
Senior Notes shall constitute an event of default under this Guarantee, and
shall entitle the Holders of Senior Notes to accelerate the obligations of the
Guarantor hereunder in the same manner and to the same extent as the obligations
of LGII.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Senior Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any holder of the Senior Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against LGII, any
action to enforce the same, whether or not a Guarantee is affixed to any
particular Senior Note, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor hereby waives the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of LGII, any right to require a proceeding first against LGII, protest, notice
and all demands whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the obligations contained in the
Senior Notes, this Indenture and this Guarantee. If any Holder or the Trustee
is required by any court or otherwise to return to LGII, or any custodian,
trustee, liquidator or other similar official acting in relation to LGII, any
amount paid by LGII to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees that, as between it, on the one hand, and the
59
Holders of Senior Notes and the Trustee, on the other hand, (a) subject to this
Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Six
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of this Guarantee.
This Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against LGII for liquidation or
reorganization, should LGII become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of LGII's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Senior Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Senior Notes, whether as a "voidable preference,"
"fraudulent transfer" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, Senior Notes shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, as such, shall have any personal liability under this
Guarantee by reason of his, her or its status as such stockholder, officer,
director, employer or incorporator.
The Guarantee constitutes a guarantee of payment and ranks pari passu
in right of payment to all unsecured senior indebtedness of the Guarantor.
10.02. EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in Section 10.01, the
Guarantor hereby agrees that a notation on the Guarantee, substantially in the
form included in Exhibit C hereto, shall be endorsed on each Senior Note
authenticated and delivered by the Trustee after the Guarantee is executed by
either manual or facsimile signature of Officers of the Guarantor. The validity
and enforceability of the Guarantee shall not be affected by the fact that it is
not affixed to any particular Senior Note.
The Guarantor hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Senior Note a notation of the Guarantee.
If an Officer of the Guarantor whose signatures is on this Indenture
or a Senior Note no longer holds that office at the time the Trustee
authenticates the Senior Note or at any time thereafter, the Guarantor's
Guarantee of such Senior Note shall be valid nevertheless.
The delivery of any Senior Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantor.
10.03. INTEREST ACT (CANADA).
If and to the extent that the laws of Canada are applicable to any
amounts payable by the Guarantor under this Indenture that are characterized as
interest by any applicable authority, for purposes of disclosure under the
Interest Act (Canada), the yearly rate of interest for any period less than one
year to which interest at a stated rate computed on the basis of a year of 360
days consisting of twelve 30-day months is equivalent is the stated rate
multiplied by a fraction of which (a) the numerator is the product of (i) the
actual
60
number of days in the calendar year in which the first day of the relevant
period falls and (ii) the sum of (A) the product of (x) 30 and (y) the number of
complete months elapsed in the relevant period and (B) the actual number of days
elapsed in any incomplete month in the relevant period, and (b) the denominator
is the product of (i) 360 and (ii) the actual number of days in the relevant
period.
ARTICLE ELEVEN
MISCELLANEOUS
11.01. TRUST INDENTURE ACT OF 1939.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
11.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
addressed as follows:
If to LGII or the Guarantor to:
Xxxxxx Group International, Inc.
00 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
With a copy to:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx V56358
If to the Trustee to:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, postage prepaid, to a Holder,
including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed by
first
61
class mail to such Holder at the address of such Holder as it appears on the
Senior Notes register maintained by the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Senior Notes.
The obligors, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by LGII or the Guarantor to the
Trustee to take any action under this Indenture, such obligor shall furnish to
the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
opinion as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; PROVIDED, HOWEVER, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
62
11.07. GOVERNING LAW.
The laws of the State of New York shall govern this Indenture, the
Guarantees and the Senior Notes without regard to principles of conflicts of
law. The Trustee, LGII, the Guarantor and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture, the Guarantee or the Senior Notes.
11.08. CONSENT TO SERVICE OF PROCESS.
Each of LGII and the Guarantor irrevocably (a) agrees that any legal
suit, action or proceeding arising out of or based upon this Indenture and the
Senior Notes issued hereunder may be instituted in any federal or state court
located in the City of New York, (b) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and (c) submits to the nonexclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of
LGII and the Guarantor has appointed Thelen, Marrin, Xxxxxxx & Xxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Esq.,
as its authorized agent (the "Authorized Agent") upon whom process may be served
in any suit, action or proceeding arising out of or based on this Indenture
which may be instituted in any federal or state court located in The City of New
York, expressly consents to the jurisdiction of any such court in respect of any
suit, action or proceeding, and waives any other requirements of or objections
to personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. Each of LGII and the Guarantor agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to LGII and the Guarantor shall be deemed, in every respect, effective service
of process upon LGII and the Guarantor. 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.
11.09. NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of LGII, the Guarantor or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or Affiliate, as such, of
LGII or the Guarantor shall not have any liability for any obligations of LGII
under the Senior Notes or this Indenture or for any obligations of the Guarantor
under the Guarantee or for any claim based on, in respect of or by reason of,
such obligations or their creation. Each Holder by accepting a Senior Note
waives and releases all such liability.
11.11. SUCCESSORS.
All agreements of each of LGII and the Guarantor in this Indenture and
the Senior Notes and the Guarantee shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
11.12. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all such executed copies together
represent the same agreement.
63
11.13. SEPARABILITY.
In case any provision in this Indenture, the Guarantee or the Senior
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
11.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
11.15. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Senior Notes, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
XXXXXX GROUP INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice-President, Finance
[CORPORATE SEAL]
Attest:
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Title: Corporate Secretary
THE XXXXXX GROUP INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
[CORPORATE SEAL] Name: Xxxxxx X. Xxxxx
Title: Vice-President, Finance
Attest:
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Title: Corporate Secretary
FLEET NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[CORPORATE SEAL]
Attest:
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
65
EXHIBIT A
THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS GLOBAL NOTE RESELL OR OTHERWISE TRANSFER THIS GLOBAL
NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS GLOBAL NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.09
AND 2.10 OF THE INDENTURE.
XXXXXX GROUP INTERNATIONAL, INC.
% SENIOR GUARANTEED NOTES DUE [ ]
No. ______ $__________
CUSIP No.
XXXXXX GROUP INTERNATIONAL, INC., a corporation incorporated under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & Co. or registered
A-1
assigns, the principal sum of _______________ Dollars on [ ], at the
office or agency of the Company referred to below, and to pay interest thereon
on ________ and __________, in each year, commencing on ________________,
accruing from the most recent Interest Payment Date to which interest has been
paid or duly provided for or, if no interest has been paid, from the original
date of issuance, at the rate of % per annum, until the principal hereof is
paid or duly provided for. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
If the Guarantor fails to consummate equity transactions having gross
proceeds of at least $200,000,000 in the aggregate prior to [
], additional interest ("Penalty Interest") shall accrue at a rate of .25% per
annum for the first 90 days following such anniversary date, increasing by an
additional .25% per annum at the beginning of each subsequent 90-day period;
PROVIDED, HOWEVER, that such Penalty Interest may not exceed 1.0% per annum; and
PROVIDED FURTHER, that such Penalty Interest shall cease to accrue upon the
consummation by the Guarantor of an equity transaction, the gross proceeds of
which, together with the gross proceeds of all other equity transactions
consummated by it after [ ] are equal to or greater than
$200,000,000.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Global Note (or one or
more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be [ ] or [ ]
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each a "Regular Record Date"). Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the rate borne by the Global Notes, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the person in whose name this Global Note (or one or more Predecessor Notes)
is registered at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Trustee, notice of which shall be
given to Holders of Global Notes not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Global Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
The Holder of this Global Note is entitled to the benefits of a
Registration Rights Agreement, dated as of October __, 1996, among the Company,
the Guarantor and the Initial Purchasers named therein (the "Registration Rights
Agreement"). The Registration Rights Agreement contains provisions permitting
an increase in the interest rate borne by this Global Note in the event of the
failure to file or to have declared effective an Exchange Offer Registration
Statement or Shelf Registration Statement (as such terms are defined in the
Registration Rights Agreement), or to consummate an Exchange Offer within
prescribed time periods specified in such Registration Rights Agreement.
Payment of the principal of, premium, if any, and interest on this
Global Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, or at such
other office or agency of the Company as may be maintained for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear on the
security register maintained by the Registrar.
Reference is hereby made to the further provisions of this Global Note
set forth on the reverse hereof.
A-2
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Global Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
XXXXXX GROUP INTERNATIONAL, INC.
By: _______________________________
Name:
Title:
[SEAL]
Attest:
By ______________________
Title:
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Global Notes of the series designated therein
referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as TRUSTEE
By ______________________________
Authorized Officer
A-4
(Reverse of Global Note)
1. INDENTURE. This Global Note is one of a duly authorized series
of Senior Notes of the Company designated as its % Senior Guaranteed Notes
due [ ] (the "Senior Notes"), which may be issued under an indenture (herein
called the "Indenture") dated as of [ ], among Xxxxxx Group
International, Inc., a Delaware corporation, as issuer (the "Company"), The
Xxxxxx Group Inc., as guarantor of the obligations of the Company under the
Indenture (the "Guarantor") and Fleet National Bank, a [ ], as trustee
(herein called the "Trustee," which term includes any successor Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee, the Guarantor and the Holders of the Senior Notes, and of the terms
upon which the Senior Notes are, and are to be, authenticated and delivered.
All capitalized terms used in this Senior Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
No reference herein to the Indenture and no provisions of this Senior
Note or of the Indenture shall alter or impair the obligation of the Company or
the Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Senior Note at the times, place and rate,
and in the coin or currency, herein prescribed.
2. REDEMPTION. [The Senior Notes will not be redeemable at the
option of the Company.]
[(a) OPTIONAL REDEMPTION. The Senior Notes are subject to redemption,
at the option of the Company, as a whole or in part, in principal amounts of
$1,000 or any integral multiple of $1,000, at any time on or after
[ ] upon not less than 30 nor more than 60 days' prior notice at
the following Redemption Prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period beginning [ ] of the years
indicated below:
Redemption
Year Price
---- ----------
_________%
_________%
_________%
plus accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture.
(b) PARTIAL REDEMPTION. In the event of redemption of this Senior
Note in part only, a new Senior Note or Senior Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.]
3. GUARANTEE. This Senior Note is entitled to a senior Guarantee
made for the benefit of the Holders. Reference is hereby made to the Guarantee
attached hereto and the Indenture (including, without limitation, Article 10
thereof) for the terms of the Guarantee.
4. OFFERS TO PURCHASE. Sections 4.11 and 4.12 of the Indenture
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amounts of the Senior Notes in
accordance with the procedures set forth in the Indenture.
A-5
5. DEFAULTS AND REMEDIES. If an Event of Default shall occur and be
continuing, the principal of all of the outstanding Senior Notes, plus all
accrued and unpaid interest, if any, to and including the date the Senior Notes
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
6. DEFEASANCE. The Indenture contains provisions (which provisions
apply to this Senior Note) for defeasance at any time of (a) the entire
indebtedness of the Company and the Guarantor under this Senior Note and (b)
certain restrictive covenants and related Defaults and Events of Default, in
each case upon compliance by the Company with certain conditions set forth
therein.
7. AMENDMENTS AND WAIVERS. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Senior
Notes of each series at the time outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of each series of the Senior Notes at the time outstanding, on
behalf of the Holders of all the Senior Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Senior Note and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Senior Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Senior Note.
8. DENOMINATIONS, TRANSFER AND EXCHANGE. The Senior Notes are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Senior Notes are exchangeable for a
like aggregate principal amount of Senior Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Senior Note is registrable on the
security register of the Company, upon surrender of this Senior Note for
registration of transfer at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan in The City of New York or at such
other office or agency of the Company as may be maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Senior Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Senior Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
9. PERSONS DEEMED OWNERS. Prior to and at the time of due
presentment of this Senior Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name this Senior Note is registered as the owner hereof for all purposes,
whether or not this Senior Note shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
10. GOVERNING LAW. This Senior Note and the Guarantee shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of law principles.
A-6
Schedule A
Exchange of (a) portions of this Global Note for
Physical Notes or (b) Physical Notes
for an interest in this Global Note.
Principal Amount of
Physical Notes
Issued in Exchange
for, or Exchanged for Remaining Prin-
an Interest in, the cipal Amount of Notation
Date Global Note this Global Note Made By
---- ------------ -----------------------------------------------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
---- ---------------------- --------------- --------
A-7
EXHIBIT B
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
XXXXXX GROUP INTERNATIONAL, INC.
% SENIOR GUARANTEED NOTES DUE [ ]
No. ______ $__________
CUSIP No.
XXXXXX GROUP INTERNATIONAL, INC., a corporation incorporated under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [ ] or registered assigns, the
principal sum of _______________ Dollars on [ ], at the office or agency
of the Company referred to below, and to pay interest thereon on ________ and
__________, in each year, commencing on ________________, accruing from the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid, from the original date of issuance, at the
rate of % per annum, until the principal hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
If the Guarantor fails to consummate equity transactions having gross
proceeds of at least $200,000,000 in the aggregate prior to [ ],
additional interest ("Penalty Interest") shall accrue at a rate of .25% per
annum for the first 90 days following such anniversary date, increasing by an
additional .25% per annum at the beginning of each subsequent 90-day period;
PROVIDED, HOWEVER, that such Penalty Interest may not exceed 1.0% per annum; and
PROVIDED FURTHER, that such Penalty Interest shall cease to accrue upon the
consummation by the Guarantor of an equity transaction, the gross proceeds of
which, together with the gross proceeds of all other equity transactions
consummated by it after [ ] are equal to or greater than
$200,000,000.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Physical Note (or one
or more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest,
B-1
which shall be [ ] or [ ] (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date (each a "Regular
Record Date"). Any such interest not so punctually paid, or duly provided for,
and interest on such defaulted interest at the rate borne by the Physical Notes,
to the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the person in whose name this Physical
Note (or one or more Predecessor Notes) is registered at the close of business
on a special record date for the payment of such defaulted interest to be fixed
by the Trustee, notice of which shall be given to Holders of Senior Notes not
less than 10 days prior to such special record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Senior Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in such
Indenture.
The Holder of this Physical Note is entitled to the benefits of a
Registration Rights Agreement, dated as of October __, 1996, among the Company,
the Guarantor and the Initial Purchasers named therein (the "Registration Rights
Agreement"). The Registration Rights Agreement contains provisions permitting
an increase in the interest rate borne by this Physical Note in the event of the
failure to file or to have declared effective an Exchange Offer Registration
Statement or Shelf Registration Statement (as such terms are defined in the
Registration Rights Agreement), or to consummate an Exchange Offer within
prescribed time periods specified in such Registration Rights Agreement.
Payment of the principal of, premium, if any, and interest on this
Physical Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, or at such
other office or agency of the Company as may be maintained for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear on the
security register maintained by the Registrar.
Reference is hereby made to the further provisions of this Physical
Note set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Physical Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed under its corporate seal.
Dated:
XXXXXX GROUP INTERNATIONAL, INC.
By:__________________________
Name:
Title:
[SEAL]
Attest:
By ___________________
Title:
B-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Physical Notes of the series designated therein
referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as TRUSTEE
By: ___________________________
Authorized Officer
B-4
(Reverse of Note)
1. INDENTURE. This Note is one of a duly authorized series of
Senior Notes of the Company designated as its % Senior Guaranteed Notes
due [ ] (the "Senior Notes"), which may be issued under an indenture (herein
called the "Indenture") dated as of [ ], among Xxxxxx Group
International, Inc., a Delaware corporation, as issuer (the "Company"), The
Xxxxxx Group Inc., as guarantor of the obligations of the Company under the
Indenture (the "Guarantor") and Fleet National Bank, a [ ], as trustee
(herein called the "Trustee," which term includes any successor Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee, the Guarantor and the Holders of the Senior Notes, and of the terms
upon which the Senior Notes are, and are to be, authenticated and delivered.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company or the
Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
2. REDEMPTION. [The Senior Notes will not be redeemable at the
option of the Company.]
[(a) OPTIONAL REDEMPTION. The Senior Notes are subject to redemption,
at the option of the Company, as a whole or in part, in principal amounts of
$1,000 or any integral multiple of $1,000, at any time on or after
[ ] upon not less than 30 nor more than 60 days' prior notice at
the following Redemption Prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period beginning [ ] of the years
indicated below:
Redemption
Year Price
---- -------------
_________%
_________%
_________%
plus accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture.
(b) PARTIAL REDEMPTION. In the event of redemption of this Note in
part only, a new Senior Note or Senior Notes for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.]
3. GUARANTEE. This Note is entitled to a senior Guarantee made for
the benefit of the Holders. Reference is hereby made to the Guarantee attached
hereto and the Indenture (including, without limitation, Article 10 thereof) for
the terms of the Guarantee.
4. OFFERS TO PURCHASE. Sections 4.11 and 4.12 of the Indenture
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amounts of the Senior Notes in
accordance with the procedures set forth in the Indenture.
B-5
5. DEFAULTS AND REMEDIES. If an Event of Default shall occur and be
continuing, the principal of all of the outstanding Senior Notes, plus all
accrued and unpaid interest, if any, to and including the date the Senior Notes
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
6. DEFEASANCE. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company and the Guarantor under this Note and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. AMENDMENTS AND WAIVERS. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Senior
Notes of each series at the time outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of each series of the Senior Notes at the time outstanding, on
behalf of the Holders of all the Senior Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Senior Note and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Senior Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
8. DENOMINATIONS, TRANSFER AND EXCHANGE. The Senior Notes are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Senior Notes are exchangeable for a
like aggregate principal amount of Senior Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the security
register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Senior Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Senior Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
9. PERSONS DEEMED OWNERS. Prior to and at the time of due
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
10. GOVERNING LAW. This Note and the Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles.
B-6
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Senior Note and the Guarantee purchased by
the Company pursuant to Section 4.11 or 4.12 of the Indenture, check the
appropriate box:
Section 4.11 [ ]
Section 4.12 [ ]
If you wish to have a portion of this Senior Note purchased by the
Company pursuant to Section 4.11 or 4.12 of the Indenture, state the amount:
$___________
Date: Your Signature: ________________________
(Sign exactly as your
name appears on the
other side of this
Senior Note)
Signature Guarantee:____________________
B-7
EXHIBIT C
SENIOR GUARANTEE
For value received, the undersigned hereby unconditionally guarantees
to the Holder of this Senior Note the payments of principal of, premium, if any,
and interest on this Senior Note in the amounts and at the time when due and
interest on the overdue principal, premium, if any, and interest, if any, of
this Senior Note, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture or the Senior Notes, to the
Holder of this Senior Note and the Trustee, all in accordance with and subject
to the terms and limitations of this Senior Note, the Indenture (including,
without limitation, Article 10 thereof) and this Guarantee. This Guarantee will
become effective in accordance with Article Ten of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of the Guarantee
shall not be affected by the fact that it is not affixed to any particular
Senior Note.
The obligations of the undersigned to the Holders of Senior Notes and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in the Indenture (including, without limitation, Article 10 thereof) and
reference is hereby made to the Indenture for the precise terms of the Guarantee
and all of the other provisions of the Indenture to which this Guarantee
relates. Each Holder of a Senior Note, by accepting the same, agrees to and
shall be bound by such provisions.
C-1
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be
duly executed under its corporate seal.
Dated:
THE XXXXXX GROUP INC.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By______________________
Title:
C-2
ASSIGNMENT FORM
If you the holder want to assign this Senior Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Senior Note to
________________________________________________________________________________
(Insert assignee's social security or tax ID number) ___________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: _____________ Your signature:___________________________________
(Sign exactly as your name
appears on the other side of
this Senior Note)
Signature Guarantee:____________________________________________________________
