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THE XXXXXX GROUP INC., as Issuer
XXXXXX GROUP INTERNATIONAL, INC., as Guarantor
and
THE TRUST COMPANY OF BANK OF MONTREAL, as Trustee
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INDENTURE
Dated as of September 26, 1997
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$500,000,000
Senior Guaranteed Notes
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 2
THE SENIOR NOTES
2.1 ISSUANCE OF SENIOR NOTES . . . . . . . . . . . . . . . . . . . . . 11
2.2 EXECUTION AND AUTHENTICATION . . . . . . . . . . . . . . . . . . . 12
2.3 NOTEHOLDER LISTS . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.4 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . 12
2.5 REPLACEMENT NOTES. . . . . . . . . . . . . . . . . . . . . . . . . 13
2.6 OUTSTANDING SENIOR NOTES . . . . . . . . . . . . . . . . . . . . . 13
2.7 TREASURY NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.8 TEMPORARY NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.9 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.10 DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 14
2.11 DEPOSIT OF MONEYS. . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
REDEMPTION OR PURCHASE OF SENIOR NOTES
3.1 NOTICES TO THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 15
3.2 SELECTION OF SENIOR NOTES TO BE REDEEMED . . . . . . . . . . . . . 15
3.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . 15
3.4 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . 16
3.5 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . . . . 17
3.6 PURCHASE FOR CANCELLATION. . . . . . . . . . . . . . . . . . . . . 17
3.7 SENIOR NOTES REDEEMED OR PURCHASED IN PART . . . . . . . . . . . . 17
ARTICLE 4
COVENANTS
4.1 PAYMENT OF SENIOR NOTES. . . . . . . . . . . . . . . . . . . . . . 18
4.2 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . . . 18
4.3 CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . 19
4.4 PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . . . . . 19
4.5 MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND RECORDS;
COMPLIANCE WITH LAW. . . . . . . . . . . . . . . . . . . . . . . . 19
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
- ii -
4.6 COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . 20
4.7 LIMITATION ON LIENS. . . . . . . . . . . . . . . . . . . . . . . . 21
4.8 LIMITATIONS ON SALE-LEASEBACK TRANSACTIONS . . . . . . . . . . . . 21
4.9 REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.10 WAIVER OF STAY, EXTENSION OR USURY LAWS. . . . . . . . . . . . . . 22
ARTICLE 5
SUCCESSOR CORPORATION
5.1 WHEN TLGI MAY MERGE, ETC.. . . . . . . . . . . . . . . . . . . . . 22
5.2 SUCCESSOR SUBSTITUTED. . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 6
REMEDIES
6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.3 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.4 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . . . . . . 26
6.5 CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . . . . . . 27
6.6 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . . . . . . 27
6.7 RIGHT OF HOLDERS TO RECEIVE PAYMENT. . . . . . . . . . . . . . . . 28
6.8 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . . . . . . 28
6.9 TRUSTEE MAY FILE PROOFS OF CLAIMS. . . . . . . . . . . . . . . . . 28
6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.11 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . . . . . . 29
6.12 RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . 29
ARTICLE 7
TRUSTEE
7.1 DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . 30
7.3 INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . 31
7.4 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . 31
7.5 NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . 32
7.6 MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . . . . 32
7.7 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . . . . . 32
7.8 REPLACEMENT OF TRUSTEES. . . . . . . . . . . . . . . . . . . . . . 33
7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . . . . . . 34
7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . . . . . . 34
ARTICLE 8
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
- iii -
SATISFACTION AND DISCHARGE OF INDENTURE
8.1 TERMINATION OF THE OBLIGATIONS OF TLGI AND THE GUARANTOR . . . . . 34
8.2 LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . 35
8.3 APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . . . . . . 39
8.4 REPAYMENT TO TLGI OR GUARANTOR . . . . . . . . . . . . . . . . . . 39
8.5 REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.1 WITHOUT CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . . 40
9.2 WITH CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . . . . . . 40
9.3 COMPLIANCE WITH TRUST INDENTURE LEGISLATION. . . . . . . . . . . . 42
9.4 REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . . . . . . 42
9.5 NOTATION ON OR EXCHANGE OF SENIOR NOTES. . . . . . . . . . . . . . 42
9.6 TRUSTEE MAY SIGN AMENDMENTS, ETC.. . . . . . . . . . . . . . . . . 42
ARTICLE 10
GUARANTEE OF SENIOR NOTES
10.1 GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.2 EXECUTION AND DELIVERY OF GUARANTEE. . . . . . . . . . . . . . . . 44
ARTICLE 11
MISCELLANEOUS
11.1 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
11.2 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . . . . . 46
11.3 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . . . . . . 46
11.4 RULES BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.5 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.6 INTEREST ACT (CANADA). . . . . . . . . . . . . . . . . . . . . . . 47
11.7 NO INTERPRETATION OF OTHER AGREEMENT . . . . . . . . . . . . . . . 47
11.8 NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . . . . . . 47
11.9 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.10 DUPLICATE ORIGINALS. . . . . . . . . . . . . . . . . . . . . . . . 48
11.11 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.12 TABLE OF CONTENTS, HEADING, ETC. . . . . . . . . . . . . . . . . . 48
11.13 BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . . . . . . 48
SIGNATURES
EXHIBIT A
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
- iv -
EXHIBIT B
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
THIS INDENTURE, dated as of September 26, 1997, between The Xxxxxx
Group Inc., a body corporate organized under and governed by the laws of
the Province of British Columbia, Canada ("TLGI"), Xxxxxx Group
International, Inc., a Delaware corporation (the "Guarantor") and The
Trust Company of Bank of Montreal, a trust company incorporated under
the laws of Canada, 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 rateable
benefit of the Holders of Senior Notes.
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS.
"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.
"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 labour 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 and Insolvency Act" means Bankruptcy and Insolvency Act,
R.S.C. 1985, c.B-3.
"Bankruptcy Law" means the Bankruptcy and Insolvency Act, the
Companies Creditors Arrangement Act, R.S.C., 1985, c.C-25 or any similar law in
Canada, the United States or other relevant jurisdiction for the relief of
debtors.
"Board of Directors" means the board of directors of TLGI or the
Guarantor, as the case may be, or any duly authorized committee of such board.
- 2 -
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of TLGI or the Guarantor, as the case may
be, to have been duly adopted by the Board of Directors of TLGI 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 Vancouver, British
Columbia, are closed.
"Canada Yield Price" means a price equal to the price of the Senior
Note calculated to provide a yield to maturity, compounded semi-annually and
calculated in accordance with generally accepted financial practice accepted in
Canada from time to time, equal to the Government of Canada Yield on the
Business Day preceding the date on which TLGI gives notice of redemption
pursuant to this Indenture, plus 0.20%.
"Canadian Government Obligations" shall have the meaning set forth in
Section 8.2.
"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.
"Collateral Agreement" means the Collateral Trust Agreement, dated as
of May 15, 1996, among Bankers Trust Company, as trustee, TLGI, the Guarantor
and various other Subsidiaries, as amended and supplemented from time to time.
"Consolidated Net Worth" means, with respect to any Person at any
date, the consolidated shareholders' equity of such Person less the amount of
such shareholders' equity attributable to Redeemable Share Capital of such
Person and its Restricted Subsidiaries, as determined in accordance with GAAP.
"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 Shares, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"covenant defeasance" shall have the meaning set forth in Section 8.2.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
TLGI or any of its Restricted Subsidiaries against fluctuations in currency
values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" mean any event that is, or after notice or passage of time
or both would be, an Event of Default.
- 3 -
"Event of Default" shall have the meaning set forth in Section 6.1
herein.
"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
U.S.$5,000,000, such determination shall be evidenced by a Board Resolution of
TLGI delivered to the Trustee.
"GAAP" means accounting principles generally accepted in Canada
consistently applied until such time as TLGI or the Guarantor shall prepare its
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.
"Government of Canada Yield" means, on any date, the average of the
yields determined by two registered Canadian investment dealers selected by
TLGI, as being the yield to maturity on such date, compounded semi-annually and
calculated in accordance with generally accepted financial practice accepted in
Canada from time to time, which a non-callable Government of Canada bond would
carry if issued in Canadian dollars in Canada at 100% of its principal amount on
such date with a term to maturity approximately equal to the remaining term to
maturity of the Senior Notes.
"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 Xxxxxx Group International, Inc., and shall
include any successor replacing such Guarantor pursuant to the provisions
hereof, and thereafter means such successor.
"Holder" or "Noteholder" means the Person in whose name a Senior Note
is registered on the Trustee's books.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business and
which are not overdue by more than 90 days, but excluding, without limitation,
all obligations, contingent or otherwise, of such Person in connection with any
undrawn letters of credit, banker's acceptance or other similar credit
transaction, (b) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (c) all indebtedness
- 4 -
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 and the amount of the obligation so secured), (f) all guarantees of
Indebtedness referred to in this definition by such Person, (g) all
Redeemable Share Capital 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 Shares
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 Share Capital which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Share Capital as if such Redeemable Share Capital 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 Share Capital, such fair market value shall
be determined in good faith by the board of directors of the issuer of such
Redeemable Share Capital. For purposes of this definition, the term
"Indebtedness" shall not include (i) Indebtedness of a Wholly-Owned
Subsidiary owed to and held by TLGI, the Guarantor or another Wholly-Owned
Subsidiary, in each case which is not subordinate in right of payment to any
Indebtedness of such Subsidiary, except that (a) any transfer of such
Indebtedness by TLGI, the Guarantor or a Wholly-Owned Subsidiary (other than
to TLGI, the Guarantor or to a Wholly-Owned Subsidiary) and (b) the sale,
transfer or other disposition by TLGI, the Guarantor or any Restricted
Subsidiary of TLGI or the Guarantor of Share Capital of a Wholly-Owned
Subsidiary which is owed Indebtedness of another Wholly-Owned Subsidiary such
that it ceases to be a Wholly-Owned Subsidiary of TLGI or the Guarantor
shall, in each case, be an incurrence of Indebtedness by such Restricted
Subsidiary subject to the other provisions hereof; and (ii) Indebtedness of
TLGI or the Guarantor owed to and held by a Wholly-Owned Subsidiary of TLGI
or the Guarantor which is unsecured and subordinate in right of payment to
the payment and performance of TLGI's or the Guarantor's obligations under
the provisions hereof and the Senior Notes except that (a) any transfer of
such Indebtedness by a Wholly-Owned Subsidiary of TLGI or the Guarantor
(other than to another Wholly-Owned Subsidiary of TLGI or the Guarantor) and
(b) the sale, transfer or other disposition by TLGI or the Guarantor or any
Restricted Subsidiary of TLGI or the Guarantor of Share Capital of a
Wholly-Owned Subsidiary which holds Indebtedness of TLGI or the Guarantor
such that it ceases to be a Wholly-Owned Subsidiary shall, in each case, be
an incurrence of Indebtedness by TLGI or the Guarantor, as the case may be,
subject to the other provisions hereof.
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"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.
"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 6.1(g) and (h)
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 instalment 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.
"Issue Date" means the issue date specified in the securities of each
series except as otherwise provided in Section 2.1.
"legal defeasance" shall have the meaning given in Section 8.2.
"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 September 26, 1997.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the President, any Executive Vice
President, any Senior Vice President, any Vice President, the Chief Financial
Officer, the Treasurer, the Secretary or the Controller of TLGI or the
Guarantor, as the case may be.
- 6 -
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of TLGI 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 TLGI.
"Pari Passu Indebtedness" means Indebtedness of TLGI or the Guarantor
which ranks pari passu in right of payment with the Senior Notes or the
Guarantee, as the case may be.
"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 TLGI or any of its Restricted Subsidiaries
(including, without limitation, the Guarantor) 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 insurance, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
governmental contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(d) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(e) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of TLGI or any
of its Restricted Subsidiaries;
(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;
- 7 -
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 amalgamated, merged or consolidated with or into TLGI
or a Restricted Subsidiary and not created in contemplation of such event;
(j) any Lien existing on any asset prior to the acquisition thereof
by TLGI or a Restricted Subsidiary and not created in contemplation of such
acquisition;
(k) Liens in favour 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 (l) 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.
"Permitted Sale-Leaseback Transactions" shall have the meaning given
to it in Section 4.8.
"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.
"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 Note authenticated and delivered under Section 2.5 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.
"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 Shares" means, with respect to any Person, any Share
Capital of such Person that has preferential rights to any other Share Capital
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.
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"Redeemable Share Capital" means any shares of any class or series of
Share Capital 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 of
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 TLGI 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.
"Restricted Subsidiary" means any Subsidiary of TLGI other than an
Unrestricted Subsidiary.
"Sale-Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person after the acquisition
thereof or the completion of construction or commencement of operation thereof
to such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last payment of
rent or any other amount due under such arrangement prior to the first date on
which such arrangement may be terminated by the lessee without payment of a
penalty.
"Securities Act" means the Securities Act of 1933 (United States), as
amended from time to time.
"Senior Notes" means the securities that are issued under this
Indenture, as amended or supplemented from time to time pursuant to this
Indenture.
"Series 5 Senior Notes" means the $200,000,000 aggregate principal
amount of TLGI's 6.10% Series 5 Senior Guaranteed Notes due 2002 issued pursuant
to this Indenture on September 26, 1997.
"Share Capital" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's share capital, and any rights (other than debt securities
convertible into share capital), warrants or options exchangeable for or
convertible into such share capital.
"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.
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"Special Finance Subsidiary" means a Restricted Subsidiary whose sole
assets are debt obligations of TLGI or the Guarantor and whose sole liabilities
are Preferred Securities the proceeds from the sale of which are or have been
advanced to TLGI or the Guarantor.
"Stated Maturity" means, when used with respect to any Senior Note or
any instalment of interest thereon, the date specified in such Senior Note as
the fixed date on which the principal of such Senior Note or such instalment 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 instalment of interest thereon, is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Shares is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Person performing
similar functions). For purposes of this definition, any directors' qualifying
shares or investments by foreign nationals (other than nationals of the United
States) mandated by applicable law shall be disregarded in determining the
ownership of a Subsidiary.
"Surviving Entity" shall have the meaning set forth in Section 5.1.
"Trust Indenture Legislation" means, at any time, the provisions of
(i) the Company Act (British Columbia) and the regulations thereunder as amended
or re-enacted from time to time, and (ii) the provisions of any other applicable
statute of Canada, in each case relating to trust indentures and the rights,
duties and obligations of trustees under trust indentures and of corporations
issuing debt obligations under trust indentures to the extent that such
provisions are at such time in force and applicable to this Indenture.
"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.
"Unrestricted Subsidiary" means (i) First Capital Life Insurance
Company of Louisiana, National Capital Life Insurance Company, Security
Industrial Insurance Company, Security Industrial Fire Insurance Company or any
successors to such Subsidiaries or (ii) a Subsidiary of TLGI declared by the
Board of Directors of TLGI to be an Unrestricted Subsidiary; provided, that no
such Subsidiary shall be declared to be an Unrestricted Subsidiary unless (x)
none of its properties or assets were owned by TLGI or any of its Subsidiaries
prior to the Issue Date, (y) its properties and assets, to the extent that they
secure Indebtedness, secure only Non-Recourse Indebtedness and (z) it has no
Indebtedness other than Non-Recourse Indebtedness. As used above, "Non-Recourse
Indebtedness" means Indebtedness as to which (i) neither TLGI nor any of its
Subsidiaries (other than the relevant Unrestricted Subsidiary or another
Unrestricted Subsidiary) (1) provides credit support (including any undertaking,
agreement or instrument which would constitute Indebtedness), (2) guarantees or
is otherwise directly or indirectly liable or (3) constitutes the lender,
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and (ii) no default with respect to such Indebtedness (including any rights
which the holders thereof may have to take enforcement action against the
relevant Unrestricted Subsidiary or its assets) would permit (upon notice,
lapse of time or both) any holder of any other Indebtedness of TLGI or its
Subsidiaries (other than Unrestricted Subsidiaries) to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity.
"Voting Shares" means any class or classes of Share Capital 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, Share
Capital of any other class or classes shall have, or might have, voting power
by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means (i) any Restricted Subsidiary of TLGI
of which 100% of the outstanding Share Capital is owned by TLGI or one or more
Wholly-Owned Subsidiaries of TLGI or by TLGI and one or more Wholly-Owned
Subsidiaries of TLGI, including the Guarantor, or (ii) any Subsidiary, at least
66 2/3 % of the outstanding voting securities of which, and all of the
outstanding shares entitled to receive dividends or other distributions of
which, shall at the time be owned or controlled, directly or indirectly, by TLGI
or one or more Wholly-Owned Subsidiaries of TLGI or by TLGI and one or more
Wholly-Owned Subsidiaries of TLGI, including the Guarantor. For purposes of
this definition, any directors' qualifying shares or investments by foreign
nationals (other than nationals of the United States) mandated by applicable law
shall be disregarded in determining the ownership of a Subsidiary.
1.2 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 "dollar" shall refer to the lawful
currency of Canada and all references to "U.S.$" shall refer to the lawful
currency of the United States of America.
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ARTICLE 2
THE SENIOR NOTES
2.1 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 2.6. The Senior Notes may be
issued in one or more series. Upon the execution and delivery of this Indenture
and the Guarantee, Series 5 Senior Notes in an aggregate principal amount of
$500,000,000 may be executed by TLGI and delivered to the Trustee for
authentication.
The Series 5 Senior Notes are 6.10% Series 5 Senior Guaranteed Notes
due 2002, issued on September 26, 1997.
The Senior Notes of each series and the Trustee's certificate of
authentication thereon shall be in substantially the form of Exhibit A, 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 Officer 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 all as determined by the Officer
executing such Senior Notes, as evidenced by their execution of such Senior
Notes. Each Senior Note shall be dated the date of its authentication.
The Series 5 Senior Notes shall be issued in the form of permanent
certificated Senior Notes in registered form in substantially the form set forth
in Exhibit A hereto duly executed by TLGI and authenticated by the Trustee as
hereinafter provided.
The terms and provisions contained in the form of the Senior Notes,
annexed hereto as Exhibit A, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable TLGI and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
2.2 EXECUTION AND AUTHENTICATION.
Any one Officer shall execute the Senior Notes of each series on
behalf of TLGI by either manual or facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time the Trustee authenticates the Senior Notes or at any time
thereafter, the Senior Note shall be valid nevertheless.
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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 any one Officer of TLGI 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 TLGI, the Trustee may appoint an
authenticating agent acceptable to TLGI 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 TLGI or with any of TLGI's Affiliates.
2.3 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.
2.4 TRANSFER AND EXCHANGE.
When Senior Notes of any series are presented to the Trustee 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 Trustee 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 TLGI and the Trustee, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and exchanges,
TLGI shall execute and the Trustee shall authenticate Senior Notes at the
Trustee's request. No service charge shall be made for any transfer, exchange
or redemption, but TLGI 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 this Section 2.4). The Trustee 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 3, except the unredeemed portion of any Senior Note being
redeemed in part.
2.5 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, TLGI shall issue and the Trustee shall authenticate a
replacement Senior Note if the Trustee's requirements are satisfied. If
required by the Trustee or TLGI such Holder must provide an indemnity,
sufficient in the judgment of both TLGI and the Trustee, to protect TLGI and
the Trustee from any loss which either
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of them may suffer if a Senior Note is replaced. TLGI 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 TLGI and the Guarantor.
2.6 OUTSTANDING SENIOR NOTES.
Senior Notes outstanding at any time are all the Senior Notes that
have been authenticated by the Trustee except those cancelled 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 TLGI or any
of its Affiliates holds the Senior Note.
If a Senior Note is replaced pursuant to Section 2.4 (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 2.4.
If on a Redemption Date or a Maturity Date the Trustee holds cash or
Canadian 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 Canadian 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.
2.7 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 TLGI 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.
2.8 TEMPORARY NOTES.
Until definitive Senior Notes are prepared and ready for delivery,
TLGI 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 TLGI considers appropriate for temporary
Senior Notes. Without unreasonable delay, TLGI 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.
2.9 CANCELLATION.
TLGI at any time may deliver Senior Notes to the Trustee for
cancellation. The Trustee, and no one else, shall promptly cancel and, at the
written direction of TLGI, shall dispose of all Senior Notes surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.5, TLGI may
not issue new Senior Notes to replace Senior Notes that it has paid or delivered
to
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the Trustee for cancellation. If TLGI 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 2.9.
2.10 DEFAULTED INTEREST.
If TLGI 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. TLGI shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 15 days before such special record date,
TLGI shall mail to each Holder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
2.11 DEPOSIT OF MONEYS.
On or before each Interest Payment Date and Maturity Date, TLGI shall
deposit with the Trustee 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 Trustee to remit payment
to the Holders on such Interest Payment Date or Maturity Date, as the case may
be.
ARTICLE 3
REDEMPTION OR PURCHASE OF SENIOR NOTES
3.1 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 TLGI. If TLGI 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.
TLGI shall notify the Trustee by an Officers' 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.
3.2 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 pro rata, by lot or by such other method as the Trustee considers to
be fair and appropriate. The amounts to be redeemed shall be equal to $1,000 or
any integral multiple thereof.
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The Trustee shall promptly notify TLGI 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.
3.3 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 Trustee.
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 TLGI 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 and accrued interest upon surrender to the
Trustee 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 Trustee 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 Trustee to collect the Redemption Price and the name and
address of the Trustee; and
(f) the paragraph of the Senior Notes pursuant to which the Senior
Notes are being redeemed.
Notice of redemption of Senior Notes to be redeemed at the election of
TLGI shall be given by TLGI or, at TLGI's written request, by the Trustee in the
name and at the expense of TLGI.
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3.4 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 Trustee, such Senior Notes called for redemption
shall be paid at the Redemption Price plus accrued and unpaid interest to the
Redemption Date.
3.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, TLGI shall deposit with the
Trustee 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 TLGI to
the Trustee for cancellation.
If TLGI complies with the preceding paragraph, then, unless TLGI
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.
3.6 PURCHASE FOR CANCELLATION.
TLGI may, in whole at any time and in part from time to time, purchase
for cancellation the Senior Notes in the market (including purchases from or
through an investment dealer or a firm holding membership on a recognized stock
exchange) or by invitation for tender or by private contract at any time and at
any price. Any Senior Notes so purchased will be delivered to the Trustee and
will be cancelled by it and no Senior Note will be issued in substitution
therefor.
If, upon an invitation for tenders, more Senior Notes are tendered at
the same lowest price than TLGI is prepared to accept, the Senior Notes to be
purchased by TLGI will be selected by the Trustee by lot or on a PRO RATA basis
or in such other manner as the Trustee may deem equitable, from the Senior Notes
tendered by each tendering Noteholder who tendered at such lowest price. For
this purpose the Trustee may make, and from time to time amend, regulations with
respect to the manner in which Senior Notes may be so selected and regulations
so made will be valid and binding upon all Noteholders, notwithstanding the fact
that, as a result thereof, one or more of such Senior Notes become subject to
purchase in part only. The Holder of any Senior Note of which a part only is
purchased, upon surrender of such Senior Note for payment, shall be entitled to
receive without expense to such Holder one or more new Senior Notes for the
unpurchased part so surrendered and the Trustee shall certify and deliver such
new Senior Note or Senior Notes upon receipt of the Senior Note so surrendered.
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3.7 SENIOR NOTES REDEEMED OR PURCHASED IN PART.
Upon surrender to the Trustee of a Senior Note which is to be redeemed
or purchased in part, TLGI 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 or purchased.
ARTICLE 4
COVENANTS
Each of TLGI 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:
4.1 PAYMENT OF SENIOR NOTES.
Each of TLGI and the Guarantor will pay, or cause to be paid, the
principal of and interest on the Senior Notes of each series on the day and in
the manner provided in the Senior Notes and this Indenture. An instalment of
principal or interest shall be considered paid on the date due if the Trustee
holds on that date money designated and set aside for and sufficient to pay the
instalment 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.
TLGI 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 instalments of interest at the same rate and in
the same manner, to the extent lawful.
4.2 MAINTENANCE OF OFFICE OR AGENCY.
TLGI will maintain in Vancouver, British Columbia, 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 TLGI in respect of the Senior Notes and this Indenture may be
served. TLGI 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 TLGI
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 11.1.
TLGI 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 TLGI
of its obligation to maintain an office or agency in Xxxxxxxxx,
- 00 -
Xxxxxxx Xxxxxxxx for such purposes. TLGI 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.
4.3 CORPORATE EXISTENCE.
Subject to Article Five, each of TLGI 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 TLGI, the Guarantor and the Restricted Subsidiaries; provided,
however, that TLGI, the Guarantor and the Restricted Subsidiaries shall not be
required to preserve any such rights, licenses or franchises if the Board of
Directors of TLGI shall reasonably determine that (x) the preservation thereof
is no longer desirable in the conduct of the business of TLGI and its
Subsidiaries taken as a whole and (y) the loss thereof is not materially adverse
to either the Guarantor and its Subsidiaries taken as a whole or to the ability
of TLGI or the Guarantor to otherwise satisfy its obligations hereunder.
4.4 PAYMENT OF TAXES AND OTHER CLAIMS.
Each of TLGI 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 TLGI or any of its
Restricted Subsidiaries or upon the income, profits or property of TLGI or any
of its Restricted Subsidiaries, and (b) all lawful claims for labour, materials
and supplies which, if unpaid, might by law become a Lien upon the property of
TLGI or any Restricted Subsidiary of TLGI, PROVIDED, HOWEVER, that neither TLGI
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 TLGI.
4.5 MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND RECORDS; COMPLIANCE
WITH LAW.
(a) Each of TLGI and the Guarantor shall, and shall cause each of its
Restricted Subsidiaries to, cause all properties and assets to be maintained and
kept in good condition, repair and working order (reasonable wear and tear
excepted) and supplied with all necessary equipment, and 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 4.5(a) shall
prevent TLGI or any of its Restricted Subsidiaries from discontinuing the
operation and maintenance of any of its properties or assets if such
discontinuance is, in the judgment of the Board of Directors of TLGI or such
Restricted Subsidiary, desirable in the conduct of its business and if such
discontinuance is not materially adverse to either TLGI and its Subsidiaries
taken as a whole or the ability of TLGI or the Guarantor to satisfy its
obligations hereunder.
(b) Each of TLGI and the Guarantor shall, and shall cause each of its
Restricted Subsidiaries to, maintain with financially sound and reputable
insurers such insurance as may be required by law (other than with respect to
any environmental impairment liability insurance not commercially available) and
such other insurance to such extent and against such hazards and
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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 TLGI and the Guarantor shall, and shall cause each of its
Restricted Subsidiaries to, keep proper books of record and account, in which
full and correct entries shall be made of all business and financial
transactions of TLGI and each Restricted Subsidiary of TLGI and reflect on its
financial statements adequate accruals and appropriations to reserves, all in
accordance with GAAP consistently applied to TLGI and its Subsidiaries taken as
a whole.
(d) Each of TLGI and the Guarantor shall and shall cause each of its
Restricted Subsidiaries to comply with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, non-compliance with
which would materially adversely affect the earnings, properties, assets or
condition (financial or otherwise) of TLGI and its Subsidiaries taken as a
whole.
4.6 COMPLIANCE CERTIFICATE.
(a) Each of TLGI and the Guarantor will deliver to the Trustee within
60 days after the end of each of TLGI's first three fiscal quarters and within
90 days after the end of TLGI's fiscal year an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default under this
Indenture by TLGI or the Guarantor or an event which, with notice or lapse of
time or both, would constitute a default by TLGI 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 4.6(a) shall be for the first fiscal
quarter of TLGI beginning after the Measurement Date. TLGI shall also deliver a
certificate to the Trustee at least annually from its principal executive,
financial or accounting officer as to his or her knowledge of TLGI's and the
Guarantor's compliance with all conditions and covenants under this Indenture,
such compliance to be determined without regard to any period of grace or
requirement of notice provided herein or therein.
(b) TLGI shall deliver to the Trustee within 90 days after the end of
each fiscal year a written statement by TLGI's and the Guarantor's independent
chartered accountants stating (A) that their 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 chartered 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 TLGI and the Guarantor will deliver to the Trustee as
soon as possible, and in any event within 10 days after TLGI 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 TLGI
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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 TLGI and/or the Guarantor, as the case may be, is taking or
proposes to take with respect thereto.
4.7 LIMITATION ON LIENS.
TLGI will not, and will not permit any of its Restricted Subsidiaries
to, create, incur, assume or suffer to exist any Liens of any kind against or
upon any of its property or assets, or any proceeds therefrom, where the
aggregate amount of Indebtedness secured by any such Liens, together with the
aggregate amount of property subject to any Sale-Leaseback Transactions of TLGI
and its Restricted Subsidiaries (other than Permitted Sale-Leaseback
Transactions), exceeds 10% of TLGI's Consolidated Net Worth, unless (x) in the
case of Liens securing Indebtedness that is subordinate or junior in right of
payment to the 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 rateably secured except for
(a) Liens existing as at the Measurement Date; (b) Liens securing the Senior
Notes or the Guarantee; (c) Liens in favour of TLGI, the Guarantor or any
Wholly-Owned Subsidiary; (d) Liens securing Indebtedness which is incurred to
refinance Indebtedness which has been secured by a Lien permitted under the
provisions of this Indenture and which has been incurred in accordance with the
provisions of the Indenture; provided, however, that such Liens do not extend to
or cover any property or assets of TLGI or any of its Restricted Subsidiaries
not securing the Indebtedness so refinanced, and provided further that the
principal amount of the Indebtedness so incurred does not exceed the principal
amount of the Indebtedness so refinanced as of the date of such refinancing; and
(e) Permitted Liens.
4.8 LIMITATIONS ON SALE-LEASEBACK TRANSACTIONS.
TLGI will not, and will not permit any of its Restricted Subsidiaries
to, enter into any Sale-Leaseback Transaction with respect to any property of
TLGI or any of its Restricted Subsidiaries where the aggregate amount of
property subject to such Sale-Leaseback Transactions, together with the
aggregate amount of Liens securing Indebtedness of TLGI and its Restricted
Subsidiaries (other than Permitted Liens), exceeds 10% of TLGI's Consolidated
Net Worth. Notwithstanding the foregoing, TLGI and its Restricted Subsidiaries
may enter into Sale-Leaseback Transactions ("Permitted Sale-Leaseback
Transactions") with respect to property acquired or constructed after the
Measurement Date; provided that the Attributable Value of such Sale-Leaseback
Transactions shall be deemed to be Indebtedness of TLGI or such Restricted
Subsidiary, as the case may be.
4.9 REPORTS.
TLGI shall cause its annual reports to shareholders and any quarterly
or other financial reports furnished by it to shareholders generally to be filed
with the Trustee and mailed no later than the date such materials are mailed or
made available to TLGI's shareholders, to the Holders at their addresses as set
forth in the register of securities maintained by the Trustee.
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4.10 WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of TLGI 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 TLGI
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 TLGI 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 5
SUCCESSOR CORPORATION
5.1 WHEN TLGI MAY MERGE, ETC.
(a) TLGI will not, and will not permit the Guarantor to, in any
transaction or series of transactions, amalgamate or merge or consolidate with
or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to, any Person or
Persons, and TLGI will not permit any of its Restricted Subsidiaries to enter
into any such transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of TLGI or the Guarantor or TLGI and its Restricted
Subsidiaries, taken as a whole, or the Guarantor and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless at the
time of and after giving effect thereto (a) either (i) if the transaction or
series of transactions is a merger or consolidation, TLGI or the Guarantor or a
Restricted Subsidiary, as the case may be, shall be the surviving Person of such
merger or consolidation, or (ii) the Person formed by such consolidation or into
which TLGI, the Guarantor or such Restricted Subsidiary, as the case may be, is
amalgamated or merged or to which the properties and assets of TLGI, the
Guarantor or such Restricted Subsidiary, as the case may be, are transferred
(any surviving Person, amalgamated 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 or territory thereof (and, in the case of TLGI, if the
Surviving Entity is a corporation organized or existing under the laws of the
United States of America or any state thereof or the District of Columbia,
counsel to TLGI has provided an opinion to the effect that there is no material
disadvantage to the holders of the Senior Notes that are residents of Canada
under applicable tax legislation as a result of the Senior Notes being
obligations of a corporation organized or existing under the laws of the United
States of America or any state thereof or the District of Columbia), and shall
expressly assume by a supplemental indenture executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of, premium, if any, and interest on all the Senior
Notes and the performance and observance of every covenant and obligation of
this Indenture and the Senior Notes on the part of TLGI or the Guarantor, as the
case may be, to be performed or
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observed and, in each case, this Indenture shall remain in full force and
effect; (b) immediately before and after giving affect to such transaction or
series of transactions on a PRO FORMA basis, no Default or Event of Default
shall have occurred and be continuing; (c) immediately after giving effect to
such transaction or series of transactions on a PRO FORMA basis (including,
without limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions)
the Consolidated Net Worth of TLGI, the Guarantor or the Surviving Entity, as
the case may be, is at least equal to the Consolidated Net Worth of TLGI or
the Guarantor, as the case may be, immediately before such transaction or
series of transactions; and (d) TLGI, the Guarantor 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, amalgamation, 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.
5.2 SUCCESSOR SUBSTITUTED.
Upon any amalgamation, consolidation or merger, or any sale,
assignment, conveyance, transfer, lease or disposition of all or substantially
all of the properties and assets of TLGI or the Guarantor in accordance with
Section 5.1 hereof, the Person or Persons formed by such amalgamation,
consolidation or into which TLGI or the Guarantor is merged or the successor
Person to which such sale, assignment, conveyance, transfer, lease or other
disposition is made, shall succeed to, and be substituted for, and may exercise
every right and power of, TLGI or the Guarantor, as the case may be, under this
Indenture and the Senior Notes with the same effect as if such successor had
been named as TLGI or the Guarantor, as the case may be.
ARTICLE 6
REMEDIES
6.1 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 instalment 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
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(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 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 TLGI and the Guarantor to remedy the same
shall have been given (i) to TLGI and the Guarantor by the Trustee or (ii)
to TLGI, the Guarantor 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
TLGI or any Restricted Subsidiary of TLGI then has outstanding Indebtedness
in excess of U.S.$50,000,000 (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 U.S.$50,000,000, either individually or in
the aggregate, shall be entered against TLGI or any Restricted Subsidiary
of TLGI 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 U.S.$50,000,000 in aggregate principal amount
of Indebtedness of TLGI or any of its Restricted Subsidiaries shall
commence judicial proceedings to foreclose upon assets of TLGI or any of
its Restricted Subsidiaries having an aggregate Fair Market Value,
individually or in the aggregate, in excess of U.S.$50,000,000 or shall
have exercised any right under applicable law or applicable security
documents to take ownership of any such assets in lieu of foreclosure; or
(g) TLGI or any Significant Subsidiary of TLGI pursuant to or under
or within the meaning of any Bankruptcy Law:
(1) consents to the entry of a receiving order;
(2) files a proposal or a notice of intention to file a proposal
or otherwise seeks protection from creditors or any of them;
(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
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(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against TLGI or any Significant Subsidiary of
TLGI;
(2) appoints a Custodian, interim receiver or receiver of TLGI
or any Significant Subsidiary of TLGI for all or substantially all of
its properties; or
(3) orders the liquidation of TLGI or any Significant Subsidiary
of TLGI;
and in each case the order or decree remains unstayed and in effect for 60
days; or
(i) 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 TLGI and the Guarantor to
remedy the same shall have been given (x) to TLGI and the Guarantor by the
Trustee or (y) to TLGI, the Guarantor 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 Section 7.1 and 7.2, the Trustee shall
not be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to the Trustee by TLGI, the Guarantor, any
Holder, any holder of Indebtedness or any of their respective agents.
6.2 ACCELERATION.
If an Event of Default (other than as specified in Section 6.1(g) or
6.1(h)) occurs and is continuing with respect to the Senior Notes of any series,
the Trustee, by written notice to TLGI and the Guarantor, 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, TLGI and the Guarantor, 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 a immediately due and payable. If an Event
of Default specified in Section 6.1(g) or 6.1(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 TLGI, the Guarantor and the Trustee, may rescind such
declaration if (a) TLGI or the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay (i) all amounts due the Trustee under Section 7.7 and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, (ii) all overdue interest on all
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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 then 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 6.4.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right therein.
6.3 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.
6.4 WAIVER OF PAST DEFAULTS.
Subject to the provisions of Section 6.7 and 9.2, 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 6.1 (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 9.2. When a Default or Event of Default is so waived, it shall be
deemed cured and shall cease to exist.
6.5 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
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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.
6.6 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:
(a) the Holder gives written notice to the Trustee of a continuing
Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
outstanding Senior Notes of such series make a written request to the
Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee reasonable indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, provision of
indemnity; and
(e) 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 an action or 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 date 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.
6.7 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 Notes, 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.
6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in clause (a) or (b) of Section 6.1
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against TLGI, 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, to the extent that
payment of such interest is lawful, on overdue principal and interest on overdue
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instalments 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, the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
6.9 TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to TLGI, the Guarantor or
the Subsidiaries of TLGI and the Guarantor (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 7.7. 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.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to the Holders for interest accrued on the Senior Notes,
rateably, 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, rateably, 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 TLGI or the Guarantor, as the case may
be.
The Trustee, upon prior written notice to TLGI, may fix a record date
and payment date for any payment to Noteholders pursuant to this Section 6.10.
6.11 UNDERTAKING FOR COSTS.
In any action or suit for the enforcement of any right or remedy under
this Indenture or in any action or suit against the Trustee for any action taken
or omitted by it as Trustee, a court
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may in its discretion require the filing by any party litigant in the action or
suit of an undertaking to pay the costs of the action or suit, and the court in
its discretion may assess reasonable costs, including reasonable counsel or
solicitors' fees, against any party litigant in the action or action or suit,
having due regard to the merits and good faith of the claims or defences made
by the party litigant. This Section 6.11 does not apply to any action or suit
by the Trustee, any action or suit by a Holder pursuant to Section 6.7, or an
action or 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 TLGI, the Guarantor, the Trustee and or Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
ARTICLE 7
TRUSTEE
7.1 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 in which
case the duties set out in paragraph (a) of this Section 7.1 shall also apply:
(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.
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(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 wilful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by the Trustee, 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 6.5;
(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 7.1.
7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1 hereof:
(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 11.2 and 11.3. 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
to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it by
this Indenture other than any liabilities arising out of its own
negligence;
(e) the Trustee may consult with counsel of its own choosing and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel;
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(f) the Trustee shall not be bound to make any investigation into the
facts or stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit; and
(g) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee or any other agent of TLGI or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Senior
Notes and, subject to Section 7.10, may otherwise deal with TLGI, the Guarantor
and their Subsidiaries with the same rights it would have if it were not the
Trustee or such other agent.
7.4 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 TLGI'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 Person 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.
7.5 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 Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
7.6 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 TLGI.
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7.7 COMPENSATION AND INDEMNITY.
TLGI 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. TLGI 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.
TLGI and the Guarantor shall indemnify the Trustee, and its officers,
directors, employees and agents, for, and hold them 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 TLGI and the Guarantor promptly of any
claim asserted against the Trustee for which it may seek indemnity. TLGI and
the Guarantor shall defend the claim and the Trustee shall cooperate in the
defence. The Trustee may have separate counsel and TLGI and the Guarantor shall
pay the reasonable fees and expenses of such counsel. TLGI and the Guarantor
need not pay for any settlement made without its prior written consent. TLGI
and the Guarantor need not reimburse any expense of indemnify against any loss
or liability to the extent incurred by the Trustee through its negligence, bad
faith or wilful misconduct.
To secure the payment obligations of TLGI and the Guarantor in this
Section 7.7, 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 in Section 6.1(g) or (h), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of TLGI and the Guarantor under this Section 7.7 and
any Lien arising hereunder shall survive the resignation or removal of any
trustee, the discharge of the obligations of TLGI and the Guarantor pursuant to
Article 8 and/or the termination of this Indenture.
7.8 REPLACEMENT OF TRUSTEES.
The Trustee may resign by so notifying TLGI provided that any
resignation of the Trustee (or any successor trustee) shall become effective
only upon the appointment of a successor trustee and such successor's acceptance
of its appointment. The Holders of a majority in principal amount of the
outstanding Senior Notes may remove the Trustee by so notifying TLGI and the
Trustee and may appoint a successor trustee with TLGI's prior written consent.
TLGI may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, TLGI 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 7.7.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Senior Notes may, with TLGI's
prior written consent, appoint a successor Trustee to replace the successor
Trustee appointed by TLGI.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to TLGI. 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 7.7, 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, or TLGI 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 7.10, 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 7.8, the obligations of TLGI and the Guarantor under Section 7.7 shall
continue for the benefit of the retiring Trustee.
7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges, amalgamates or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation without
any further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be successor Trustee.
7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Legislation. If at any time
the Trustee shall cease to be eligible in accordance
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with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect hereinafter specified in this Article, and shall
duly and timely give notice to the Registrar of Companies (British Columbia),
or other duly authorized Person performing his duties, as may from time to time
be required by Trust Indenture Legislation.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
8.1 TERMINATION OF THE OBLIGATIONS OF TLGI AND THE GUARANTOR.
Each of TLGI 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 8.1, 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 in trust or
segregated and held in trust by TLGI and thereafter repaid to TLGI, as provided
in Section 8.4) have been delivered to the Trustee for cancellation and TLGI or
the Guarantor has paid all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article 3, TLGI 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) TLGI or the Guarantor 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, cash in Canadian dollars,
Canadian Government Obligations, or a combination thereof, 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 chartered
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 TLGI or the Guarantor is a
party or by which it is bound;
(d) TLGI or the Guarantor shall have paid all other sums payable by
it hereunder; and
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(e) TLGI 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 TLGI'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, TLGI's obligations in
Sections 2.3, 2.4, 2.5, 4.1, 4.2 and 7.7 and the Guarantor's obligations in
respect thereof shall survive until the Senior Notes of such series are no
longer outstanding pursuant to Section 2.6. After the Senior Notes of such
series are no longer outstanding, TLGI's obligations in Sections 7.7, 8.3, 8.4
and 8.5 and the Guarantor's obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of TLGI's and the Guarantor's
obligations under the Senior Notes of such series except for those surviving
obligations specified above.
8.2 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) Each of TLGI and the Guarantor may, at its option by Board
Resolution of the Board of Directors of TLGI or the Guarantor, 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 TLGI's or the Guarantor's exercise under paragraph (a) of
the option applicable to this paragraph (b), TLGI 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 TLGI 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 TLGI, 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) TLGI's
obligations with respect to such Senior Notes under Sections 2.3, 2.4 and 4.2.
and, with respect to the Trustee, under Section 7.7 and the Guarantor's
obligations in respect thereof, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article 8. Subject to
compliance with this Section 8.2, TLGI 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 TLGI and the Guarantor under paragraph (a)
of the option applicable to this paragraph (c), each of TLGI and the Guarantor
shall be released and discharged from its obligations under any covenant
contained in Article 5 and in Sections 4.7
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through 4.9 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,
TLGI 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 6.1(c),
but, except as specified above, the remainder of this Indenture and such
Senior Notes shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph, (b) or paragraph (c) above to the outstanding Senior Notes of any
series:
(1) TLGI shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section
7.10 who shall agree to comply with the provisions of this Section 8.2
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
Canadian dollars, in an amount or (y) direct non-callable obligations of,
or non-callable obligations guaranteed by, the Government of Canada
("Canadian Government Obligations") maturing as to principal, premium, if
any, and interest in such amounts of cash, in Canadian 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 chartered
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 term 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 TLGI instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such Canadian 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 6.1(a) is
concerned, at any time during the period ending on the later of the end of
three months and 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
TLGI or the Guarantor;
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(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 TLGI or the Guarantor is a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, TLGI shall
have delivered to the Trustee an Opinion of Counsel stating that the
Holders of the outstanding Senior Notes of such series will not recognize
income, gain or loss for Canadian federal income tax purposes as a result
of such legal defeasance and will be subject to Canadian 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, TLGI 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 Canadian federal income tax purposes as a result
of such covenant defeasance and will be subject to Canadian 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 in the United States, satisfactory to the
Trustee, to the effect that, (x) the trust funds will not be subject to any
rights of any other holders of Indebtedness of TLGI 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 TLGI 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 or invalid 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
another Bankruptcy Law having the same effect, but still subject to the
foregoing clause (B);
(8) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel in Canada, satisfactory to the Trustee, to
substantially the same effect as the opinion referred to in subsection (7)
above, subject to such changes as may be reasonably necessary to reflect
any applicable Canadian Bankruptcy Law; and
(9) TLGI 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
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paragraph (c) above, as the case may be, have been complied with and (y)
if any other Indebtedness of TLGI 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 Canadian Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for the 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 to the
Holders of such Senior Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
TLGI shall, and TLGI shall cause the Guarantor, to pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the Canadian 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 8.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to TLGI from time to time upon the request, in
writing, by TLGI any money or Canadian Government Obligations held by it as
provided in paragraph (d) above which, in the opinion of a nationally recognized
firm of independent chartered 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.
8.3 APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or Canadian Government
Obligations deposited with it pursuant to Sections 8.1 and 8.2, and shall apply
the deposited money and the money from Canadian 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 for which such deposit is made.
8.4 REPAYMENT TO TLGI OR GUARANTOR.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee shall promptly pay
to TLGI 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 8.2, held by it at any time. The Trustee
shall pay to TLGI or the Guarantor, upon receipt by the Trustee 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 Holder is
required; PROVIDED, HOWEVER, that the Trustee before being required to make any
payment may, but need not, at the expense of TLGI cause to be published once in
a newspaper of general circulation in Vancouver and Toronto 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 less 30 days from the date of
such publication or mailing, any unclaimed balance of such money then remaining
will be repaid to TLGI. After payment to TLGI
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or the Guarantor, Holders entitled to money must look solely to TLGI and the
Guarantor for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee with
respect to such money shall thereupon cease.
8.5 REINSTATEMENT.
If the Trustee is unable to apply any money or Canadian Government
Obligations in accordance with this Indenture by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then and only
then TLGI's 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 Canadian Government Obligations in accordance with
this Indenture; provided, however, that if TLGI 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, TLGI 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 Canadian
Government Obligations held by the Trustee.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.1 WITHOUT CONSENT OF HOLDERS.
TLGI, 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 5;
(c) to provide for uncertificated Senior Notes in addition to
certificated Senior Notes; or
(d) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder.
Notwithstanding the above, the Trustee and TLGI may not make any
change that adversely affects the rights of any Holder hereunder. TLGI shall be
required to deliver to the Trustee an Opinion of Counsel stating that any such
change made pursuant to paragraph (a) or (d) of this Section 9.1 does not
adversely affect the rights of any Holder.
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9.2 WITH CONSENT OF HOLDERS.
Subject to Section 6.4, TLGI, 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 TLGI or the Guarantor with any provision of this
Indenture, the Guarantee or the Senior Notes.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.4, 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 9.2 or Section 6.4 or Section 6.7;
(h) 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; or
(i) 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 9.2 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 9.2
becomes effective, TLGI 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 TLGI to mail such
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notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any amendment, supplement or waiver.
9.3 COMPLIANCE WITH TRUST INDENTURE LEGISLATION.
Every amendment of or supplement to this Indenture, the Guarantee or
each series of the Senior Notes shall comply with the Trust Indenture
Legislation as then in effect.
9.4 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 or her 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.
TLGI 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 (i) of Section 9.2; 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.
9.5 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 TLGI) request the Holder of the Senior Note to deliver it to the Trustee.
The Trustee shall (in accordance with the specific direction of TLGI) place an
appropriate notation on the Senior Note about the changed terms and return it to
the Holder. Alternatively, if TLGI or the Trustee so determines, TLGI in
exchange for the Senior Note shall issue and the Trustee shall authenticate a
new Senior Note 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.
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9.6 TRUSTEE MAY SIGN AMENDMENTS. ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 9 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture, that it is
not inconsistent herewith and that it will be valid and binding upon TLGI in
accordance with its terms.
ARTICLE 10
GUARANTEE OF SENIOR NOTES
10.1 GUARANTEE.
Subject to the provisions of this Article 10, 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 TLGI 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 TLGI 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 term
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 TLGI to the Holders, for whatever reason,
the Guarantor will be obligated to pay, or to perform or cause the payment or
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 TLGI.
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 TLGI, 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 defence of a guarantor. The
Guarantor hereby waives the benefit of diligence, presentment, demand of
payment, filing of claim with a court in the event of insolvency or bankruptcy
of TLGI, any right to require a proceeding first against TLGI, protest, notice
and all demands whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the obligations contained in
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the Senior Notes, this Indenture and this Guarantee. If any Holder or the
Trustee is required by any court or otherwise to return to TLGI, or any
custodian, trustee, receiver, liquidator or other similar official acting in
relation to TLGI, any amount paid by the Guarantor to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor further agrees that, as
between it, on the one hand, and the Holders of Senior Notes and the Trustee,
on the other hand, (a) subject to this Article 10, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
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 6 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 TLGI for liquidation,
bankruptcy or reorganization, should TLGI 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 TLGI'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 "fraudulent
preference", "fraudulent conveyance" 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, the 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 shareholder, 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 shareholder, officer,
director, employer or incorporator.
The Guarantee constitutes a guarantee of payment and ranks pari passu
in right of payment to all senior indebtedness of the Guarantor.
10.2 EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in Section 10.1, the
Guarantor hereby agrees that a notation of the Guarantee, substantially in the
form included in Exhibit B 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 any Officer 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
10.1 shall remain in full force and effect notwithstanding any failure to
endorse on each Senior Note a notation of the Guarantee.
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If an Officer of the Guarantor whose signature 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.
ARTICLE 11
MISCELLANEOUS
11.1 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 TLGI or the Guarantor to:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Xxxxxx
Attention: Chief Financial Officer
With a copy to:
Xxxxxx Group International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx
XXX 00000
Attention: Chief Financial Officer
If to the Trustee to;
The Trust Company of Bank of Montreal
0xx Xxxxx, Xxxxx Xxxx Xxxxx
000 Xxxxxxx Xxxxxx
P.O. Xxx 00000, Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Director, Client Relations
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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 shall
be mailed by first class mail to such Holder at the address of such Holder as it
appears on the Senior Notes register maintained by the Trustee 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.
11.2 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by TLGI 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.
11.3 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 contain in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her
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 in Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
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11.4 RULES BY TRUSTEE.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders.
11.5 GOVERNING LAW.
This Indenture shall be construed in accordance with and governed by
the laws of British Columbia and the laws of Canada applicable therein and the
parties hereto agree that any legal action or proceedings against any of them
with respect to this Indenture may be brought in the courts of British Columbia
and by execution and delivery of this Indenture, each of the said parties hereby
irrevocably attorns and submits to the non-exclusive jurisdiction of the courts
of British Columbia.
11.6 INTEREST ACT (CANADA).
For the purposes of the Interest Act (Canada), the yearly rate of
interest to which the interest rate applicable to any of the Senior Notes (the
"said rate") is equivalent, where such interest is to be computed on the basis
of a year (the "deemed year") consisting of fewer days than the actual number of
days in the one year period which commences on the first day of the period of
computation ("actual year") is equal to the said rate multiplied by the number
of days in the actual year and divided by the number of days in the deemed year.
11.7 NO INTERPRETATION OF OTHER AGREEMENT.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of TLGI, the Guarantor or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
11.8 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, shareholder or Affiliate, as such, of
TLGI or the Guarantor shall not have any liability for any obligations of TLGI
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. Nothing in this Section 11.8 waives or
releases any liability created by a term of this Indenture or any agreement
collateral thereto or any security which secures any obligation under this
Indenture.
11.9 SUCCESSORS.
All agreements of each of TLGI 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.
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11.10 DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all such executed copies together
represent the same agreement.
11.11 SEVERABILITY.
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.
11.12 TABLE OF CONTENTS, HEADING, 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.
11.13 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.
IN WITNESS WHEREOF, the Parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
THE XXXXXX GROUP INC. XXXXXX GROUP INTERNATIONAL, INC.
By: ___________________________ c/s By: _______________________________ c/s
Name: Name:
Title: Title:
THE TRUST COMPANY OF BANK OF
MONTREAL, as Trustee
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
