UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): March 6, 2009
Willis Group Holdings Limited
(Exact Name of Registrant as Specified in Its Charter)
Bermuda
(State or Other Jurisdiction of Incorporation)
001-16503 98-0352587
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(Commission File Number) (IRS Employer Identification No.)
c/o Willis Group Limited
51 Lime Street
London EC3M 7DQ, England
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(Address of Principal Executive Offices)
(44) (20) 7488-8111
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On March 6, 2009, Willis Group Holdings Limited ("Willis"), along with certain
of its subsidiaries, including Trinity Acquisition Limited ("TAL"), as the
issuer, entered into an Indenture, with The Bank of New York Mellon, as trustee
(the "Indenture") pursuant to which TAL issued $500,000,000 aggregate principal
amount of its 12.875% Senior Notes due 2016 (the "Notes") to Goldman Sachs
Mezzanine Partners and related funds and certain co-investors (collectively, the
"Purchasers"). The Notes are unsecured and are fully and unconditionally
guaranteed by Willis and certain of Willis' wholly-owned subsidiaries. The Notes
will bear interest at a rate of 12.875% per year, payable in cash quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
beginning June 30, 2009. The Notes will mature on December 31, 2016, unless
earlier repurchased or redeemed. The net proceeds from the sale of the Notes was
approximately $480 million, after deducting the Purchasers' fees and were used
to repay a substantial portion of the existing interim credit facility of Willis
North America Inc., a wholly-owned subsidiary of Willis.
Among other things, the Indenture provides that the Notes are redeemable in
whole or in part at any time prior to September 1, 2013 by paying a "make-whole
premium" and at any time thereafter at stated redemption prices, in each case
plus accrued and unpaid interest to the date of redemption.
The Indenture also provides that the Notes may also be redeemed in whole, but
not in part, upon the occurrence of certain changes or amendments to the laws
and regulations of the United Kingdom which would subject the Issuer to the
payment of Additional Amounts, as described in the Indenture.
In the event of a Change of Control (as defined in the Indenture), TAL will be
required to offer to repurchase all of the Notes then outstanding at 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
repurchase date. In addition, if Willis or any of its subsidiaries consummates
an Asset Sale (as defined in the Indenture), under certain circumstances, TAL
will be required to make an offer to purchase the Notes at an offer price of
100% of the principal amount thereof plus accrued and unpaid interest to the
repurchase date.
The Indenture also contains certain covenants which restrict the ability of
Willis and its subsidiaries (including TAL) to, among other things, incur
additional indebtedness; make certain distributions, investments and other
restricted payments; create certain liens; enter into sale and leaseback
transactions; merge, consolidate or sell substantially all of its or their
assets; and issue equity securities. If Willis and its subsidiaries (including
TAL) fail to comply with such covenants, the trustee or holders of 25% in
aggregate principal amount of the Senior Notes could determine to accelerate the
payment of the obligations under the Notes. If certain other events of default
relating to bankruptcy and insolvency occur, the Notes could be immediately due
and payable.
2
The Notes were sold pursuant to an exemption from registration under the
Securities Act of 1933, as amended (the "Securities Act"), and have not been
registered in the United States under the Securities Act or in any other
jurisdiction and may not be offered or sold in the United States absent
registration or an applicable exemption from the registration requirements.
However, Willis and its subsidiaries (including TAL) have also executed a
registration rights agreement with the initial purchasers of the Notes pursuant
to which Willis and its subsidiaries (including TAL) have agreed to file, on up
to three occasions, a shelf registration statement with the Securities and
Exchange Commission to cover resales of the Notes.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The foregoing terms and conditions of the Notes, Indenture and Registration
Rights Agreement described in Item 1.01 of this Current Report on Form 8-K are
incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
4.1 Note Purchase Agreement dated February 10, 2009, among Trinity
Acquisition Limited, as Issuer, Willis Group Holdings Limited, TA I
Limited, TA II Limited, TA III Limited, TA IV Limited, Willis
Investment UK Holdings Limited, Willis North America Inc. and Willis
Group Limited, as the Guarantors; for the purchase by GSMP V Onshore
International, Ltd., GSMP V Offshore International, Ltd., GSMP V
Institutional International, Ltd. and GS Mezzanine Partners V
Institutional L.P of $500,000,000 aggregate principal amount of the
Issuer's 12.875% Senior Notes due 2016.
4.2 Indenture dated as of March 6, 2009, among Trinity Acquisition Limited,
as Issuer, Willis Group Holdings Limited, TA I Limited, TA II Limited,
TA III Limited, TA IV Limited, Willis Investment UK Holdings Limited,
Willis North America Inc., and Willis Group Limited, as the Guarantors;
and The Bank of New York Mellon, as the Trustee relating to the
issuance of 12.875% Senior Notes due 2016.
4.3 Registration Rights Agreement dated as of March 6, 2009, among Trinity
Acquisition Limited, as Issuer, Willis Group Holdings Limited, TA I
Limited, TA II Limited, TA III Limited, TA IV Limited, Willis
Investment UK Holdings Limited, Willis North America Inc., and Willis
Group Limited, as the Guarantors; and GSMP V Onshore International,
Ltd., GSMP V Offshore International, Ltd., GSMP V Institutional
International, Ltd. and GS Mezzanine Partners V Institutional L.P, as
Initial Purchasers, granting registration rights for the 12.875% Senior
Notes due 2016.
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WILLIS GROUP HOLDINGS LIMITED
Date: March 11, 2009. By: /s/ Adam G. Ciongoli
-------------------------
Name: Adam G. Ciongoli
Title: General Counsel
4
Exhibit 4.1
NOTE PURCHASE AGREEMENT
among
TRINITY ACQUISITION LIMITED, as Issuer,
WILLIS GROUP HOLDINGS LIMITED,
WILLIS INVESTMENT HOLDINGS UK, LTD.,
TA I LIMITED,
TA II LIMITED,
TA III LIMITED,
TA IV LIMITED,
WILLIS GROUP LIMITED, and
WILLIS NORTH AMERICA INC., as Initial Guarantors
GSMP V ONSHORE INTERNATIONAL, LTD.,
GSMP V OFFSHORE INTERNATIONAL, LTD.,
GSMP V INSTITUTIONAL INTERNATIONAL, LTD., as GSMP Purchasers, and
GS MEZZANINE PARTNERS V INSTITUTIONAL, L.P.
Dated as of February 10, 2009
Relating to:
$500,000,000.00
12.875% Senior Notes Due December 31, 2016
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.............................................1
1.1. Definitions...........................................................................1
1.2. Rules of Construction.................................................................7
SECTION 2. AUTHORIZATION AND ISSUANCE OF NOTES..........................................8
2.1. Authorization of Issue................................................................8
2.2. Sale and Purchase of the Notes........................................................8
2.3. Closing...............................................................................9
SECTION 3. CONDITIONS TO CLOSING........................................................9
3.1. Financial Information.................................................................9
3.2. Change of Control....................................................................10
3.3. Representations and Warranties.......................................................10
3.4. Financing Documents..................................................................10
3.5. Organizational Documents; Incumbency.................................................10
3.6. Opinions of Counsel to Obligors......................................................10
3.7. Solvency Certificate.................................................................11
3.8. Consents.............................................................................11
3.9. PATRIOT Act Information..............................................................11
3.10. Payment of Expenses; Closing Payment.................................................11
3.11. Officer's Certificate................................................................11
3.12. Satisfaction of Existing Bridge Loan.................................................11
3.13. Subordination of Intercompany Debt...................................................11
3.14. Registration.........................................................................12
3.15. Listing..............................................................................12
3.16. Rating...............................................................................12
SECTION 4. REPRESENTATIONS AND WARRANTIES..............................................12
4.1. Organization; Power..................................................................12
4.2. Authorization; Enforceability........................................................12
4.3. Governmental Approvals; No Conflicts.................................................13
4.4. Financial Condition..................................................................13
4.5. Properties; Material Contracts.......................................................13
4.6. Litigation and Environmental Matters.................................................13
4.7. Compliance with Laws; Absence of Default.............................................14
4.8. Investment Company Status; Governmental Regulations..................................14
4.9. Taxes................................................................................14
4.10. ERISA; Employee Matters..............................................................14
4.11. Disclosure...........................................................................15
4.12. Subsidiaries.........................................................................15
4.13. Solvency.............................................................................15
4.14. Margin Stock.........................................................................15
4.15. Insurance............................................................................15
i
4.16. Financial Reporting..................................................................16
4.17. Duties and Taxes.....................................................................16
4.18. Immunity.............................................................................17
4.19. Judgments............................................................................17
4.20. No Registration Required.............................................................18
4.21. No Integration of Offerings or General Solicitation..................................18
4.22. Eligibility for Resale under Rule 144A...............................................18
4.23. PATRIOT Act..........................................................................19
SECTION 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASERS....................19
5.1. Representation and Warranties........................................................19
5.2. Tax Forms............................................................................20
5.3. Listing..............................................................................20
SECTION 6. COVENANTS...................................................................20
6.1. Future Reports to GSMP Purchasers, the GSMP VCOC, and any Subsequent Holder..........20
6.2. Notices of Material Events...........................................................22
6.3. Books and Records; Access............................................................22
6.4. Tax Treatment........................................................................23
6.5. Use of Proceeds......................................................................24
SECTION 7. PROVISIONS RELATING TO RESALES OF NOTES.....................................24
7.1. Private Offerings....................................................................24
7.2. Procedures and Management Cooperation in Private Offerings...........................24
7.3. No Integration.......................................................................24
SECTION 8. EXPENSES, INDEMNIFICATION AND CONTRIBUTION..................................25
8.1. Expenses.............................................................................25
8.2. Indemnification......................................................................25
8.3. Waiver of Punitive Damages...........................................................25
8.4. Survival.............................................................................25
8.5. Tax Treatment of Indemnification Payments............................................26
SECTION 9. MISCELLANEOUS...............................................................26
9.1. Notices..............................................................................26
9.2. Benefit of Agreement and Assignments.................................................26
9.3. No Waiver; Remedies Cumulative.......................................................27
9.4. Amendments, Waivers and Consents.....................................................27
9.5. Counterparts.........................................................................27
9.6. Reproduction.........................................................................28
9.7. Headings.............................................................................28
9.8. Survival of Covenants and Indemnities................................................28
9.9. Governing Law; Submission to Jurisdiction; Venue.....................................28
9.10. Severability.........................................................................29
9.11. Entirety.............................................................................29
9.12. Survival of Representations and Warranties...........................................29
ii
9.13. Construction.........................................................................29
9.14. Incorporation........................................................................29
9.15. Confidentiality......................................................................30
9.16. Maximum Rate.........................................................................30
9.17. PATRIOT Act..........................................................................31
9.18. Currency.............................................................................31
9.19. Further Assurances...................................................................31
EXHIBITS:
Exhibit A Form of Indenture
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Compliance Certificate
Exhibit 3.5 Form of Secretary's Certificate
Exhibit 3.6(a) Form of Opinion of New York Counsel
Exhibit 3.6(b) Form of Opinion of English Counsel
Exhibit 3.6(c) Form of Opinion of Bermuda Counsel
Exhibit 3.7 Form of Solvency Certificate
Exhibit 3.11 Form of Officer's Certificate
SCHEDULES:
Schedule 2.2 Information Relating to the Purchasers
Schedule 4.3 Consents
Schedule 4.5 Material Contracts; Encumbrances or Restrictions
Schedule 4.6 Litigation and Environmental Matters
Schedule 4.12 Subsidiaries
Schedule 4.15 Insurance
iii
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of February 10, 2009, among Trinity
Acquisition Limited, a company organized and operated under the laws of England
and Wales and an indirect Wholly-Owned Subsidiary (as defined below) of Holdings
(as defined below) (the "Issuer"), Willis Group Holdings Limited, an exempted
company under the Companies Act 1981 of Bermuda ("Holdings"), Willis North
America Inc., a Delaware corporation ("WNA"), Willis Investment Holdings UK,
Ltd., a company organized and operated under the laws of England and Wales
("Willis UK"), Willis Group Limited, a company organized and operated under the
laws of England and Wales ("Willis Group Limited"), TA I Limited, a company
organized and operated under the laws of England and Wales ("TA I"), TA II
Limited, a company organized and operated under the laws of England and Wales
("TA II"), TA III Limited, a company organized and operated under the laws of
England and Wales ("TA III"), TA IV Limited, a company organized and operated
under the laws of England and Wales ("TA IV" and together with Holdings, WNA,
Willis UK, Willis Group Limited, TA I, TA II, and TA III, the "Initial
Guarantors"), GSMP V Onshore International, Ltd., an exempted company
incorporated in the Cayman Islands with limited liability ("GSMP V Onshore"),
GSMP V Offshore International, Ltd., an exempted company incorporated in the
Cayman Islands with limited liability ("GSMP V Offshore") and GSMP V
Institutional International, Ltd., an exempted company incorporated in the
Cayman Islands with limited liability ("GSMP V Institutional" and, together with
GSMP V Onshore and GSMP V Offshore, the "GSMP Purchasers", and together with any
Subsequent Purchasers (as defined below), the "Purchasers") and GS Mezzanine
Partners V Institutional, L.P., an exempted partnership organized in the Cayman
Islands with limited liability ("GSMP VCOC").
RECITALS
WHEREAS, WNA, an indirect Wholly-Owned Subsidiary of the Issuer,
intends to repay a portion of WNA's Existing Bridge Loan (as defined below).
WHEREAS, the repayment of the Existing Bridge Loan and the payment of
related transaction fees and expenses (the "Refinancing") is intended to be
financed by the issuance by the Issuer to the GSMP Purchasers on the date hereof
of $500,000,000.00 in an aggregate original principal amount of the Issuer's
12.875% senior notes due December 31, 2016 (such notes and all notes issued in
exchange, substitution or replacement therefore, the "Notes"), upon the terms
and subject to the conditions set forth in this Agreement and the Indenture (as
defined below).
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1. Definitions.
As used herein, capitalized terms which are defined in the Indenture
shall have, except where otherwise expressly set forth herein, the same
respective meanings as such terms have in the Indenture, and, in addition, the
following terms shall have the meanings specified herein unless the context
otherwise requires (it being understood that defined terms shall include in the
singular number the plural and in the plural the singular):
"Agreement" is defined in Section 9.4.
1
"Board of Governors" means the Board of Governors of the United States
Federal Reserve System, or any successor thereto.
"Closing" is defined in Section 2.3(a).
"Closing Date" is defined in Section 2.3(a).
"Closing Payment" means, with respect to each GSMP Purchaser, on the
Closing Date, an amount equal to 3.5% of the aggregate principal amount of the
Notes purchased by such GSMP Purchaser on or as of such Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" is defined in the Recital.
-------
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Confidential Information" is defined in Section 9.15(a).
"Debt Rating" means, as of any date of determination, the rating as
determined by any Rating Agency (if by more than one Rating Agency,
collectively, the "Debt Ratings"), as applicable, of the Issuer's
non-credit-enhanced, senior unsecured long-term debt.
"DTC" is defined in Section 7.2(a).
"DTC Agreement" means a letter of representation between the Issuer and
DTC.
"Employee Benefit Plan" means any Multiemployer Plan or Pension Plan.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to (i)
environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, natural resources
or the protection of human, plant or animal health or welfare, in any manner
applicable to the Issuer or any of its Subsidiaries or any Facility.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Holdings and its Subsidiaries directly or
indirectly resulting from or based upon (i) violation of any Environmental Law;
(ii) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials; (iii) exposure to any Hazardous Materials;
(iv) the release or threatened release of any Hazardous Materials into the
environment or (v) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
2
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, is treated as a single employer
under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (i) a Reportable Event with respect to a Pension
Plan; (ii) a withdrawal by Holdings or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (iii) a complete or partial withdrawal by Holdings or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (iv) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (v) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan or (vi) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Holdings or
any ERISA Affiliate.
"Existing Bridge Loan" means that certain 364-Day Credit Agreement
dated as of October 1, 2008 between Holdings, WNA, the lenders party thereto,
Bank of America, N.A., as administrative agent, Banc of America Securities LLC,
J.P. Morgan Securities Inc., Suntrust Robinson Humphrey, Inc., and the Royal
Bank of Scotland, PLC as Book Managers, and Bank of America Securities LLC as
Sole Lead Arranger, as amended.
"Facility" means any real property (including all buildings, fixtures
or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by the Issuer or any of its Subsidiaries or any of
their respective predecessors.
"Financing Documents" means, collectively, this Agreement, the
Indenture, the Notes, the Registration Rights Agreement and all certificates,
instruments, and other documents made or delivered in connection herewith and
therewith.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries
ending on December 31 of each calendar year.
"Governmental Authority" means the government of the United States and
United Kingdom or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government where appropriate (including any supra-national bodies
such as the European Union or the European Central Bank).
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GSMP Purchasers" is defined in the Preamble.
3
"GSMP VCOC" is defined in the Preamble.
"GSMP V Institutional" is defined in the Preamble.
"GSMP V Offshore" is defined in the Preamble.
"GSMP V Onshore" is defined in the Preamble.
"Hazardous Materials" means any chemical, material, substance or waste,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment or natural resources.
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Holdings" is defined in the Preamble.
"Indemnitee" is defined in Section 8.2.
"Indenture" means, prior to the Closing Date, the form of indenture
attached hereto as Exhibit A and on and after the Closing Date the Indenture,
substantially in the form attached hereto as Exhibit A, among the Issuer,
Holdings, the Guarantors as listed therein and The Bank of New York Mellon, as
trustee, as amended, supplemented, restated or otherwise modified from time to
time.
"Infringe" means, in relation to Intellectual Property, infringing
upon, misappropriating or violating the rights of any third party.
"Initial Guarantors" is defined in the Preamble.
"Intellectual Property" means the following and all rights pertaining
thereto: (a) patents, patent applications, provisional patent applications and
statutory invention registrations (including all utility models and other patent
rights under the Laws of all countries), (b) trademarks, service marks, trade
dress, logos, trade names, service names, corporate names, domain names and
other brand identifiers, registrations and applications for registration
thereof, (c) copyrights, proprietary designs, computer software, mask works,
databases, and registrations and applications for registration thereof, (d)
confidential and proprietary information, trade secrets, know-how and show-how,
and (e) all similar rights, however denominated, throughout the world.
"Investment Company Act" means the Investment Company Act of 1940 as
from time to time in effect and any successor act to all or a portion thereof.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's and BBB- (or the equivalent) by S&P, or an
equivalent rating by any other Rating Agency.
4
"Law" means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, judgment, code, order, injunction, arbitration
award, writ, decree, agency requirement, license or permit of any Governmental
Authority.
"Material Acquisition" means an acquisition by Holdings or any of its
Subsidiaries of any Person, property, business or asset outside the ordinary
course of business for total consideration in excess of $25,000,000.00.
"Material Adverse Effect" means (i) a material adverse change in, or a
material adverse effect upon, the business, financial position, property or
results of operations of Holdings and its Subsidiaries taken as a whole; (ii) a
material impairment of the ability of any Obligor to perform its obligations
under any Financing Document to which it is a party; or (iii) a material adverse
effect upon the legality, validity, binding effect or enforceability against any
Obligor of any Financing Document to which it is a party.
"Material Contract" means any contract or other arrangement to which
Holdings, the Issuer or any of their Subsidiaries is a party (other than the
Financing Documents) for which breach, nonperformance, cancellation or failure
to renew could reasonably be expected to have a Material Adverse Effect.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
3(37) or 4001(a)(3) of ERISA, to which Holdings or any ERISA Affiliate makes or
is obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions (excluding any foreign plans of
Holdings or any of its ERISA Affiliates).
"Non-Utilization Fee" means an amount equal to the Applicable Premium
that would have been payable if Notes with an aggregate principal amount equal
to the Non-Utilized Amount had been issued on the Closing Date and such Notes
were thereafter immediately redeemed in accordance with Section 3.07(a) of the
Indenture.
"Non-Utilized Amount" means an amount equal to $500,000,000.00 minus
the aggregate principal amount of Notes actually issued on the Closing Date.
"Notes" is defined in the Recitals.
"Obligor" means the Issuer and each Guarantor of the obligations of the
Issuer under the Indenture, as applicable, and "Obligors" means all of them,
collectively.
"Organizational Documents" means, (i) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any entity incorporated or
established in a non-U.S. jurisdiction); (ii) with respect to any limited
liability company, the certificate or articles of formation or organization and
operating agreement; and (iii) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of
its formation or organization and, if applicable, any certificate or articles of
formation or organization of such entity.
"Outside Closing Date" is defined in Section 2.3(a).
5
"PATRIOT Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), as it may be amended or
renewed from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means any "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is subject to
Section 412 or 430 of the Internal Revenue Code or Section 302 of ERISA, and in
respect of which the Issuer or any of its Subsidiaries has or could reasonably
be expected to have liability, contingent or otherwise, under ERISA, and in
respect of any pension plan which the Issuer or any of its Subsidiaries operates
in the United Kingdom in respect of which the Issuer or any of its Subsidiaries
has or could reasonably be expected to have liability, contingent or otherwise
under the provisions of the United Kingdom Pensions Act 2004 and subsidiary
legislation.
"Private Offering" means any offer and/or sale by one or more of the
Purchasers of some or all of the Notes without registration under the Securities
Act but in compliance with Rule 144A, Rule 144, Regulation S, Section 4(1) or
any other applicable rule or provision under the Securities Act.
"Purchase Price" is defined in Section 2.2(b).
"Purchasers" is defined in the Preamble.
"Refinancing" is defined in the Recitals.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the Issue Date among the GSMP Group and the Obligors, substantially
in the form attached hereto as Exhibit B.
"Regulation D" means Regulation D under the Securities Act as from time
to time in effect and any successor regulation to all or a portion thereof.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
regulation to all or a portion thereof.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30-day notice requirement has been
waived under the applicable regulations.
"Rule 502" means Rule 502 of Regulation D under the Securities Act as
from time to time in effect and any successor regulation to all or a portion
thereof.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any profit
sharing agreement or arrangement, options, warrants, bonds, debentures, notes,
or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
6
"Senior Officer" means the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Operating Officer or the Chief
Accounting Officer, the Secretary, the Treasurer or a Director (in respect of
any Person organized and operated under the laws of England and Wales).
"Specified Conditions" means the conditions set forth in Sections 3.3,
3.11 and 3.16; provided, that no condition set forth shall be a Specified
Condition to the extent the failure of such condition to be satisfied is
reasonably within the good faith control of Holdings or its Subsidiaries.
"Subsequent Holder" means each Person holding an aggregate principal
amount of Notes of not less than $10,000,000.00 that accedes to this Agreement
after the date hereof either before or after the Closing; provided, however,
that the total aggregate principal amount of Notes held by all Subsequent
Holders shall not exceed $100,000,000.00.
"Subsequent Purchaser" means a purchaser of any Note who acquired such
Note in a Private Offering in accordance with Section 7.1 and any Subsequent
Holder.
"TA I" is defined in the Preamble.
"TA II" is defined in the Preamble.
"TA III" is defined in the Preamble.
"TA IV" is defined in the Preamble.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
assessment, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
"Transactions" means the transactions contemplated by the Financing
Documents (including the Guarantee set out in Article 10 of the Indenture),
including the Refinancing.
"Trustee" is defined in the Recitals.
"UK Pensions Event" means (i) the termination of a UK Pension Plan,
(ii) the withdrawal of a participating employer from a UK Pension Plan, and
(iii) the imposition of Contribution Notice under Section 38 of the United
Kingdom Pensions Act 2004 and/or the imposition of a Financial Support Direction
under Section 43 of the United Kingdom Pensions Act 2004
"Willis UK" is defined in the Preamble.
1.2. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
7
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) "will" shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall
be deemed to include substitute, replacement or successor sections or rules
adopted by the SEC from time to time;
(h) unless the context otherwise requires, any reference to an
"Article," "Section" or "clause" refers to an Article, Section or clause, as the
case may be, of this Agreement;
(i) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not any particular
Article, Section, clause or other subdivision;
(j) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein);
(k) any reference herein to any Person shall be construed to include
such Person's successors and assigns; and
(l) the word "including" shall mean "including without limitation".
SECTION 2.
AUTHORIZATION AND ISSUANCE OF NOTES
-----------------------------------
2.1. Authorization of Issue.
On or prior to the Closing, the Issuer will authorize the issuance and
sale of the Notes. The Notes shall be substantially in the form specified in the
Indenture.
2.2. Sale and Purchase of the Notes.
(a) Subject to the terms and conditions of this Agreement, the Issuer
will issue and sell to the GSMP Purchasers and the GSMP Purchasers will purchase
from the Issuer, at the Closing provided for in Section 2.3, the Notes in the
principal amounts and for the portion of the Purchase Price as set forth
opposite such GSMP Purchaser's name on Schedule 2.2.
(b) The aggregate cash purchase price (the "Purchase Price") for the
Notes shall be equal to the principal amount of the Notes being so purchased,
net of the aggregate amount of the Closing Payments with respect thereto.
(c) The parties agree to report the sale and purchase of the Notes for
all federal, state, local and foreign Tax purposes in a manner consistent with
the foregoing and agree to take no position inconsistent with the foregoing.
8
(d) The obligations hereunder of the GSMP Purchasers to purchase and
pay for the Notes are several and not joint and no GSMP Purchaser shall have any
liability to any Person for the performance or non-performance by any other GSMP
Purchaser.
2.3. Closing.
(a) The sale and purchase of the Notes shall occur at the offices of
Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, NY
10004, at 10 a.m. local time, at a closing (the "Closing") on March 6, 2009 (the
"Closing Date"), or at such other time or on such other Business Day as notified
by the GSMP Purchasers to the Issuer in writing, but in any event by no later
than March 22, 2009 (the "Outside Closing Date") (in either case, the date and
time of the Closing is referred to herein as the "Closing Date").
(b) At the Closing, the Issuer will deliver to each GSMP Purchaser
purchasing Notes, in such denominations as such GSMP Purchaser may request
(subject to the terms of the Indenture), Notes representing in the aggregate the
full principal amount of Notes to be purchased by such GSMP Purchaser on the
Closing Date, each such Note dated the Closing Date and registered in such GSMP
Purchaser's name or in accordance with Section 7.2(a), against payment by such
GSMP Purchaser to the Issuer of the amount of the applicable portion of the
Purchase Price (as provided in Section 2.2 and Schedule 2.2), net of the
applicable Closing Payment, by wire transfer of immediately available funds to
such bank account or accounts as the Issuer may request in writing at least
three Business Days prior to the Closing Date.
(c) If on the earlier of the Closing Date or the Outside Closing Date,
(i) the Issuer shall have failed to deliver to the GSMP Purchasers the Notes as
provided in Section 2.3(b), or any of the conditions specified in Section 3
(other than the Specified Conditions) shall not have been fulfilled to the GSMP
Purchasers' reasonable satisfaction or waived by the GSMP Purchasers, or (ii)
the Issuer shall have issued Notes with an aggregate principal amount of less
than $500,000,000.00, then (without waiving any other rights or remedies such
GSMP Purchaser may have by reason of such failure or such non-satisfaction by
the Issuer) the Issuer shall pay to the GSMP Purchasers on the earlier of the
Closing Date and the Outside Closing Date by wire transfer of immediately
available funds to the bank accounts set forth adjacent such GSMP Purchaser's
name on Schedule 2.2, an amount equal to the Non-Utilization Fee. Without
limiting the foregoing, if on the earlier of the Closing Date or the Outside
Closing Date, the Issuer shall have failed to deliver to the GSMP Purchasers the
Notes as provided in Section 2.3(b), or any of the conditions specified in
Section 3 shall not have been fulfilled to the GSMP Purchasers' reasonable
satisfaction or waived by the GSMP Purchasers, then each GSMP Purchaser shall be
relieved of all further obligations under this Agreement without thereby waiving
any other rights or remedies such GSMP Purchaser may have by reason of such
failure or such non-satisfaction by the Issuer.
SECTION 3.
CONDITIONS TO CLOSING
---------------------
Each GSMP Purchaser's obligation to purchase and pay for the Notes to
be purchased by it on the Closing Date is subject to the satisfaction, or waiver
in accordance with Section 9.4, of the following conditions on or before the
Closing Date:
3.1. Financial Information.
Holdings shall have (i) issued an earnings release substantially in the
form of the draft earnings release provided to the GSMP Purchasers on or about
the date hereof and (ii) filed with the SEC an annual report on Form 10-K for
the fiscal year ended December 31, 2008 that does not contain or disclose any
information that differs in any material respect from the information or
disclosure set forth in Holdings' draft annual report on Form 10-K for the
fiscal year ended December 31, 2008 provided to the GSMP Purchasers on or about
the date hereof and the other reports, financial statements, certificates and
other written information furnished by or on behalf of Holdings to the GSMP
Purchasers, taken as a whole.
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3.2. Change of Control.
There shall not have occurred, been approved by Holdings' Board of
Directors or announced any events or changes that individually or in the
aggregate, have resulted in or would result in, as applicable, a Change of
Control.
3.3. Representations and Warranties.
The representations and warranties of the Obligors as set forth in this
Agreement shall be true and correct in all material respects on and as of the
Closing Date to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date; provided that,
in each such case any representations and warranties that are qualified by
materiality, Material Adverse Effect or a similar qualification shall be true
and correct in all respects.
3.4. Financing Documents.
The GSMP Purchasers shall have received sufficient copies of each
Financing Document originally executed or, except in the case of the Notes,
facsimiles (followed promptly by originals) and delivered by each applicable
Obligor.
3.5. Organizational Documents; Incumbency.
The GSMP Purchasers shall have received a secretary's certificate,
dated as of the Closing Date, in the form of Exhibit 3.5, attaching the
documents listed in clauses (i) through (iv) below, and certifying, among other
things, as to: (i) each Organizational Document executed and delivered by each
Obligor, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, each dated the Closing Date or a recent date
prior thereto; (ii) signature and incumbency certificates of the officers or
directors, as the case may be, of such Person executing the Financing Documents
to which it is a party; (iii) resolutions of the Board of Directors or similar
governing body of each Obligor approving and authorizing the execution, delivery
and performance of this Agreement and the other Financing Documents to which it
is a party, certified as of the Closing Date by its secretary or an assistant
secretary as being in full force and effect without modification or amendment;
and (iv) a good standing certificate from the applicable Governmental Authority
of each Obligor's jurisdiction of incorporation, organization (to the extent
available) or formation dated a recent date prior to the Closing Date.
3.6. Opinions of Counsel to Obligors.
The GSMP Purchasers and their respective counsel shall have received
originally executed copies of the favorable written opinions of (i) Weil,
Gotshal & Manges LLP, special New York counsel for the Obligors, in the form of
(or substantially in the form of and reasonably acceptable to the GSMP
Purchasers) Exhibit 3.6(a), (ii) Weil, Gotshal & Manges LLP, special English
counsel for the Obligors, in the form of (or substantially in the form of and
reasonably acceptable to the GSMP Purchasers) Exhibit 3.6(b) and (iii) Appleby,
special Bermuda counsel for the Obligors, in the form of (or substantially in
the form of and reasonably acceptable to the GSMP Purchasers) Exhibit 3.6(c),
dated as of the Closing Date (and each Obligor hereby instructs such counsel to
deliver such opinions to the GSMP Purchasers).
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3.7. Solvency Certificate.
On the Closing Date, the GSMP Purchasers shall have received a solvency
certificate, in the form of Exhibit 3.7, from the chief financial officer of
each of the Issuer and each Initial Guarantor with respect to the solvency of
the Issuer or an Initial Guarantor, as applicable, on a consolidated basis
reasonably acceptable to the GSMP Purchasers.
3.8. Consents.
The GSMP Purchasers shall have received satisfactory evidence that
Holdings and its Subsidiaries have obtained all governmental and material
third-party consents necessary in connection with the Transactions.
3.9. PATRIOT Act Information.
At least five (5) days prior to the Closing Date, the GSMP Purchasers
shall have received all documentation and other information required by bank
regulatory authorities under applicable "know-your-customer" and anti-money
laundering rules and regulations, including the PATRIOT Act.
3.10. Payment of Expenses; Closing Payment.
At the Closing (i) each GSMP Purchaser shall have received from the
Issuer, the Closing Payments required to be paid under Section 2.3(b), by
netting such amounts from the applicable portion of the principal amount of the
Notes being purchased by such GSMP Purchaser, as provided in said Section, and
(ii) each GSMP Purchaser and counsel for the GSMP Purchasers shall have received
from the Issuer all other fees required to be paid, and, in accordance with
Section 8.1, all reasonable costs and expenses for which invoices have been
presented (including the fees of Fried, Frank, Harris, Shriver & Jacobson LLP,
counsel to the GSMP Purchasers); provided that to the extent invoices therefor
have not been so presented at the Closing, all other fees shall be paid within
10 days of an invoice having been presented to the Issuer.
3.11. Officer's Certificate.
Each of the Obligors shall have delivered to the GSMP Purchasers an
officer's certificate, in the form of Exhibit 3.11, executed by a Senior Officer
of such Obligor.
3.12. Satisfaction of Existing Bridge Loan.
The Issuer shall have delivered to the GSMP Purchasers satisfactory
evidence that substantially contemporaneously with the issuance of the Notes all
of the proceeds of the issuance of the Notes will be utilized as set forth in
Section 4.14 and Section 6.5.
3.13. Subordination of Intercompany Debt.
The Issuer shall have delivered to the GSMP Purchasers satisfactory
evidence that all Indebtedness (other than any guarantee provided by Holdings in
favor of a Wholly-Owned Subsidiary in respect of debt of another Wholly-Owned
Subsidiary the subordination of which would be prohibited by the FSA or the UK
Pension Trustee, including to the extent applicable, the WGHL/Willis Guarantee)
of Holdings or any of its Wholly-Owned Subsidiaries to Holdings or any of its
Wholly-Owned Subsidiaries that is owed by an Obligor to a Non-Obligor in excess
of $100,000,000.00 in the aggregate has been subordinated pursuant to
subordination agreements substantially in the form attached to the Indenture as
Exhibit F or on terms reasonably satisfactory to the GSMP Purchasers.
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3.14. Registration.
The Issuer shall have delivered to the GSMP Purchasers satisfactory
evidence that the Issuer has re-registered as a public limited company as
defined in the Companies Act of 2006.
3.15. Listing.
The Issuer shall have used commercially reasonable efforts to procure
and maintain the listing (the "Listing") of the Notes on the Channel Islands
Stock Exchange or any other stock exchange reasonably acceptable to the GSMP
Purchasers, which is a "recognised stock exchange" as defined in s.1005 Income
Tax Act 2007 of the United Kingdom (the "Stock Exchange") on or prior to the
Closing Date.
3.16. Rating.
The Issuer's Debt Rating shall be an Investment Grade Rating and no
negative ratings watch indicating the Issuer's Debt Rating could fall below an
Investment Grade Rating shall have been issued by any Rating Agency.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Obligor jointly and severally makes the following representations
and warranties to the Purchasers on and as of the date hereof and as of the
Closing Date:
4.1. Organization; Power.
Each of the Obligors and each of their respective Subsidiaries is duly
incorporated or organized, as applicable, validly existing and where relevant in
good standing under the Laws of the jurisdiction of its organization or
incorporation, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
4.2. Authorization; Enforceability.
The Transactions to be entered into by each Obligor is within such
Obligor's corporate powers and has been duly authorized by all necessary
corporate and, if required, stockholder action. Each Financing Document has been
duly executed and delivered by the Obligors and constitutes, and each Obligor to
which any Financing Document is to be a party, when executed and delivered by
such Obligor, will constitute, a legal, valid and binding obligation of such
Obligor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
12
4.3. Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any material applicable Law or the charter, by-laws or other
Organizational Documents of any of the Obligors or any of their respective
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any material indenture, agreement or other material
instrument, except as disclosed on Schedule 4.3, binding upon the Obligors or
any of their respective Subsidiaries or their assets, or give rise to a right
thereunder to require any payment to be made by any Obligors or any of their
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Obligors or any of their respective Subsidiaries pursuant to
the terms of such material indenture, agreement or other material instrument.
4.4. Financial Condition.
Holdings has heretofore furnished to the GSMP Purchasers its
consolidated balance sheet and statements of income, stockholders equity and
cash flows (i) as of and for the fiscal year ended December 31, 2007, reported
on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended September 30,
2008, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Holdings and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above. Holdings and its Subsidiaries have (i) no
outstanding Investments, other than Permitted Investments and (ii) no
outstanding Indebtedness, other than Indebtedness that could have been incurred
pursuant to Section 4.07(b) of the Indenture.
4.5. Properties; Material Contracts.
(a) Each of Holdings and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes and except where the failure to have such
good title or valid leasehold interests, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.
(b) Each of Holdings and its Subsidiaries owns, or is licensed to use,
all trademarks, trade names, copyrights, patents and other intellectual property
material to its business, and the use thereof by Holdings and its Subsidiaries
does not Infringe upon the rights of any other Person, except for any such
Infringements that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
(c) As of the Closing Date, neither the Issuer nor any of its
Subsidiaries is party to any Material Contract, except as set forth on Part I of
Schedule 4.5. Except for the Credit Agreement and the Existing Bridge Loan and
except as set forth on Part II of Schedule 4.5, neither Holdings nor any of its
Subsidiaries is subject to any material, consensual contractual encumbrance or
restriction as set forth in clauses (i), (ii) or (iii) of Section 4.15(a) of the
Indenture.
4.6. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings (including investigative
proceedings) by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of any of the Obligors, threatened against or
affecting Holdings or any of its Subsidiaries, that would reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than as disclosed on Schedule 4.6).
13
(b) Other than as disclosed on Schedule 4.6 and except with respect to
any other matters that, individually or in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect, neither Holdings nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability or (iii) has received notice of any claim with respect to any
Environmental Liability.
4.7. Compliance with Laws; Absence of Default.
Each of Holdings and its Subsidiaries is in compliance with all Laws
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
4.8. Investment Company Status; Governmental Regulations.
Neither Holdings nor any of its Subsidiaries is an "investment company"
as defined in, or subject to regulation under, the Investment Company Act.
4.9. Taxes.
Each of Holdings and its Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
Holdings or such Subsidiary, as applicable, have set aside on its books adequate
reserves or (b) to the extent that the failure to do so would not reasonably be
expected to result in a Material Adverse Effect.
4.10. ERISA; Employee Matters.
(a) No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, nor has any UK Pension Event occurred or is
reasonably expected to occur that when taken together with all other such UK
Pension Events for which liability is reasonably expected to occur, would
reasonably be expected to result in a Material Adverse Effect. The present value
of all accumulated benefit obligations under each Pension Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of such Pension Plan,
and the present value of all accumulated benefit obligations of all underfunded
Pension Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Pension Plans, in each case, by an
amount that has had, or would reasonably be expected to have, a Material Adverse
Effect.
(b) Neither Holdings nor any of its Subsidiaries is engaged in any
unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice complaint pending against
Holdings or any of its Subsidiaries or, to the best knowledge of Holdings,
threatened against any of them before the National Labor Relations Board and no
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement that is so pending against Holdings or any of its
Subsidiaries or to the best knowledge of Holdings, threatened against any of
them, (b) no strike or work stoppage in existence or threatened involving
Holdings or any of its Subsidiaries, and (c) to the best knowledge of Holdings,
no union representation question existing with respect to the employees of
Holdings or any of its Subsidiaries and, to the best knowledge of Holdings, no
union organization activity that is taking place, except (with respect to any
matter specified in clause (a), (b) or (c) above, either individually or in the
aggregate) such as is not reasonably likely to have a Material Adverse Effect.
14
4.11. Disclosure.
None of the reports, financial statements, certificates or other
information furnished by or on behalf of Holdings or any of its Subsidiaries to
any GSMP Purchaser in connection with the negotiation of this Agreement or the
Transactions, taken as a whole, contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Obligors
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
4.12. Subsidiaries.
Schedule 4.12 sets forth the name and jurisdiction of organization or
incorporation of, and the direct or indirect ownership interest of Holdings in,
each of its Subsidiaries, and identifies each of its Subsidiaries that is an
Initial Guarantor as of the Closing Date.
4.13. Solvency.
Immediately after the consummation of the Transactions, (a) the fair
value of the assets of each Obligor, at a fair valuation, will exceed its debts
and liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Obligor will be greater than the amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Obligor will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; (d) each Obligor will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Closing Date; (e) no Obligor, by reason of actual or anticipated
financial difficulties, has commenced or intends to commence negotiations with
one or more of its creditors with a view to rescheduling any of its
Indebtedness; and (f) no moratorium has been declared and, in the opinion of
Holdings and the Issuer, no moratorium is reasonably likely to be declared in
the foreseeable future, in each case, in respect of any Indebtedness of any
Obligor.
4.14. Margin Stock.
Neither Holdings nor any of its Subsidiaries is engaged, and none of
them will engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U), or extending credit for the purpose of purchasing or carrying
margin stock.
4.15. Insurance.
(a) Holdings and each of its Subsidiaries maintain insurance insuring
against such losses and risks as Holdings reasonably believes is adequate to
protect Holdings and each of its Subsidiaries and their respective businesses,
except where the failure to maintain such insurance would not reasonably be
expected to have a Material Adverse Effect; (b) Holdings and its Subsidiaries
are in compliance with the terms of such policies and instruments in all
material respects; (c) there are no claims by Holdings or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause
that would reasonably be expected to have a Material Adverse Effect; (d) none of
Holdings or any of its Subsidiaries has been refused any insurance coverage
sought or applied for; and (e) none of Holdings or any of its Subsidiaries has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have a Material Adverse Effect (other than
as set forth on Schedule 4.15) whether or not arising from transactions in the
ordinary course of business.
15
4.16. Financial Reporting.
Holdings and each of its Subsidiaries maintain a system of internal
control over financial reporting sufficient to provide reasonable assurance that
(a) Holdings' financial records, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of Holdings; (b)
transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and that
receipts and expenditures of Holdings are being made only in accordance with
authorizations of management and directors of Holdings; and (c) unauthorized
acquisition, use or disposition of Holdings' assets that could have a material
effect on Holdings' financial statements are detected in a timely manner.
Holdings maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15 under the Exchange Act) that are effective in ensuring that
information required to be disclosed by Holdings in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the rules and forms of the Commission,
including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by Holdings in the reports that it files or
submits under the Exchange Act is accumulated and communicated to Holdings'
management, including its principal executive officer or officers and its
principal financial officer or officers, as appropriate to allow timely
decisions regarding required disclosure.
4.17. Duties and Taxes.
(a) No stamp duties, Stock Exchange Tax, value-added Tax, withholding
or any other similar duty or Tax is payable in the United States, the United
Kingdom, Bermuda or any other jurisdiction in which Holdings or any of its
Subsidiaries is organized or engaged in business for Tax purposes or, in each
case, any political subdivision thereof or any authority having power to tax, in
connection with the execution or delivery of this Agreement by the Obligors or
the sale or delivery of the Notes to the Purchasers.
(b) Under the current laws and regulations of Bermuda, all payments
made on the Notes may be paid by Holdings to the holder thereof in United States
dollars that may be freely transferred out of Bermuda and all such payments made
to holders thereof who are non-residents of Bermuda will not be subject to
income, withholding or other Taxes under the laws or regulations of Bermuda and
will otherwise be free of any other Tax, duty, withholding or deduction in
Bermuda and without the necessity of obtaining any governmental authorization in
Bermuda.
(c) Under the current laws and regulations of the United Kingdom, all
payments made on the Notes may be paid by the Issuer or any Guarantor to the
holder thereof in United States dollars that may be freely transferred out of
the United Kingdom and all such payments made to holders thereof who are
non-residents of the United Kingdom will not be subject to income, withholding
or other Taxes under the laws or regulations of the United Kingdom and will
otherwise be free of any other Tax, duty, withholding or deduction in the United
Kingdom and without the necessity of obtaining any governmental authorization in
the United Kingdom.
16
4.18. Immunity.
None of the Obligors or their respective properties or assets has any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of the United States, England and Wales
or Bermuda.
4.19. Judgments.
(a) A final and conclusive judgment of a court located outside Bermuda
against Holdings based upon this Agreement, the Notes or the Indenture,
including the Guarantee of Holdings (other than a court of jurisdiction to which
The Judgments (Reciprocal Enforcement) Act, 1958 applies, and it does not apply
to the United States, including the federal and state courts of the Borough of
Manhattan in New York City) under which a sum of money is payable (not being a
sum payable in respect of taxes or other charges of a like nature, in respect of
a fine or other penalty, or in respect of multiple damages as defined in The
Protection of Trading Interests Act 1981), may be the subject of enforcement
proceedings in the Supreme Court of Bermuda under the common law doctrine of
obligation by action on the debt evidenced by the judgment of such court located
outside Bermuda; provided that:
(i) the court which rendered the judgment was competent to
hear the action in accordance with private international law principles
as applied in Bermuda; and
(ii) the judgment is not contrary to public policy in Bermuda,
has not been obtained by fraud or in proceedings contrary to natural
justice and is not based on an error in Bermuda law.
(b) A judgment rendered by a court of the State of New York or a
Federal court of the United States in relation to this Agreement, the Notes or
the Indenture, including the Guarantee of any Guarantor, for a final and
conclusive judgment for debt or a definite sum of money will be recognized and
enforced in England provided that the party against whom the judgment was given
properly submitted to the jurisdiction of the courts of the State of New York or
a Federal court of the United States (which had jurisdiction under its own laws)
and none of the following circumstances apply:
(i) the judgment was procured by fraud;
(ii) the judgment was given contrary to the rules of natural
or substantial justice, for example where a defendant is deprived of
notice of, or an adequate opportunity to take part in, the proceedings;
(iii) recognition of the judgment would be contrary to English
public policy;
(iv) the judgment conflicts with an English judgment or a
foreign judgment given earlier in time;
(v) enforcement of the judgment would involve the enforcement
of a foreign penal or revenue or other public law;
(vi) enforcement of the judgment would contravene the
Protection of Trading Interests Act of 1980, section 5 of which
precludes, among other things, the enforcement in the United Kingdom of
any judgment given by a court of an overseas country which is a
judgment for multiple damages which exceed the compensatory element of
the judgment award; or
17
(vii) recognition or enforcement thereof would be contrary to
the terms of the Administration of Justice Act 1920, the Foreign
Judgments (Reciprocal Enforcement) Act 1933 or the Conventions.
4.20. No Registration Required.
Subject to accuracy when made of with the representations and
warranties set forth in Section 5 and compliance by the GSMP Purchasers with the
procedures set forth in Section 7, it is not necessary in connection with the
offer, sale and delivery of the Notes to the GSMP Purchasers in the manner
contemplated by this Agreement and the Indenture and the other Financing
Documents, until such time as the Notes are sold pursuant to an effective
registration statement, (i) to register the Notes under the Securities Act, or
(ii) to qualify the Indenture under the Trust Indenture Act.
4.21. No Integration of Offerings or General Solicitation.
None of the Obligors, their respective Affiliates, or any Person acting
on any of their behalf (other than the Purchasers, as to whom the Obligors make
no representation or warranty) has, within the six-month period immediately
prior to the date hereof, directly or indirectly, solicited any offer to buy or
offered to sell, sold, or issued and will not, for six months following the date
hereof, directly or indirectly, solicit any offer to buy or offer to sell, sell,
or issue in the United States or to any U.S. person (as such terms are defined
in Regulation S) the Notes or any security of the Issuer or any other Obligor,
except to the extent such offer, sale, issuance or solicitation, when integrated
with the offering contemplated by this Agreement would not require registration
under the Securities Act in reliance on Regulation D thereunder.
None of the Obligors, their respective Affiliates, or any Person acting
on any of their behalf (other than the Purchasers, as to whom the Obligors make
no representation or warranty) has engaged or will engage, in connection with
the offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502.
With respect to those Notes sold in reliance upon Regulation S, (a)
none of the Obligors, their respective Affiliates, or any Person acting on any
of their behalf (other than the Purchasers, as to whom the Obligors make no
representation or warranty) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S and (b) each of the Obligors and
their respective Affiliates and any Person acting on any of their behalf (other
than the Purchasers, as to whom the Obligors make no representation or warranty)
has complied and will comply with the offering restrictions set forth in
Regulation S.
4.22. Eligibility for Resale under Rule 144A.
Subject to the accuracy of the representations and warranties set forth
in Section 5 and compliance by the GSMP Purchasers with the procedures set forth
in Section 7, the Notes are eligible for resale pursuant to Rule 144A and will
not be, at the Closing Date, of the same class as securities listed on a
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
18
4.23. PATRIOT Act.
To the extent applicable, Holdings and its Subsidiaries are in
compliance, in all material respects, with (a) the Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (b) the
PATRIOT Act.
SECTION 5.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASERS
--------------------------------------------------------
5.1. Representation and Warranties.
Each GSMP Purchaser, severally and not jointly, represents and warrants
to the Issuer as of the date hereof as follows:
(a) Purchase.
(i) Such GSMP Purchaser is acquiring the Notes for its own
account, for investment and not with a view to any distribution thereof
within the meaning of the Securities Act.
(ii) Such GSMP Purchaser understands that the Notes have not
been and, except as provided in the Registration Rights Agreement with
respect to the Notes, will not be registered under the Securities Act
or any state or other securities law, that the Notes are being issued
by the Issuer in transactions exempt from the registration requirements
of the Securities Act, that it must hold the Notes indefinitely and not
offer or sell the Notes except pursuant to effective registration
statements under the Securities Act or pursuant to applicable
exemptions from registration under the Securities Act and in compliance
with applicable state laws and in compliance with Section 7, without
prejudice, however, to its right to dispose of its property being at
all times within its control, and in particular its right at all times
to sell or otherwise dispose of all or any part of the Notes.
(iii) Such GSMP Purchaser is a QIB or an "accredited investor"
(within the meaning of Regulation D).
(iv) Such GSMP Purchaser does not own any capital stock of
Holdings.
(v) Such GSMP Purchaser is either (i) not a bank that is
entering into this Agreement in the ordinary course of its trade or
business or (ii) a "United States person" within the meaning of Section
7701(a)(30) of the Code.
(b) Organization; Power.
Each of the GSMP Purchasers is duly organized, validly existing and in
good standing under the Laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
(c) Power; Authorization; Enforceability.
19
Each Financing Document to be entered into by each GSMP Purchaser is
within such GSMP Purchaser's corporate powers and have been duly authorized by
all necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by each GSMP Purchaser and constitutes, a
legal, valid and binding obligation of each GSMP Purchaser, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
5.2. Tax Forms.
At the Closing, GSMP V Onshore shall deliver to the Issuer a properly
completed and duly executed Form W-9 of GSMP V Onshore, and each of GSMP V
Offshore and GSMP V Institutional shall deliver to the Issuer a properly
completed and duly executed Form W-8BEN of such GSMP Purchaser.
5.3. Listing.
The GSMP Purchasers shall cooperate with the Issuer in a commercially
reasonable manner in connection with obtaining the Listing and shall provide
such information to the Stock Exchange as may be reasonably requested by the
Issuer.
SECTION 6.
COVENANTS
---------
Holdings, the Issuer and the other Obligors jointly and severally
covenant and agree with each GSMP Purchaser and, when applicable, any Subsequent
Holder and the GSMP VCOC that so long as such GSMP Purchaser or, when
applicable, any Subsequent Holder holds any Notes and until the principal amount
of (and premium, if any, on) such Notes, and all interest, and other obligations
hereunder in respect thereof (other than indemnity obligations that have not yet
become due and payable), shall have been paid in full:
6.1. Future Reports to GSMP Purchasers, the GSMP VCOC, and any
Subsequent Holder.
Holdings and the Issuer shall deliver to such GSMP Purchaser, the GSMP
VCOC and any Subsequent Holder:
(a) as soon as available and in any event within 120 days (or, if
earlier, the date that is fifteen (15) days after the reporting date for such
information required by the SEC) after the end of each fiscal year of the
Issuer, the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Issuer and its
consolidated Subsidiaries and of Holdings and its consolidated Subsidiaries as
of the end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by Deloitte & Touche
LLP or other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without any
material qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Issuer and its
consolidated Subsidiaries and Holdings and its consolidated Subsidiaries,
respectively, in each case on a consolidated basis in accordance with GAAP
consistently applied;
(b) as soon as available and in any event within 60 days (or, if
earlier, the date that is 15 days after the reporting date for such information
required by the SEC) after the end of each of the first three fiscal quarters of
each fiscal year of the Issuer, the consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the Issuer and
its consolidated Subsidiaries and of Holdings and its consolidated Subsidiaries
as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by a Financial Officer of the
Issuer or Holdings, as applicable, as presenting fairly in all material respects
the financial condition and results of operations of the Issuer and its
consolidated Subsidiaries and Holdings and its consolidated Subsidiaries,
respectively, in each case on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
20
(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a Compliance Certificate executed by a Financial Officer of
the Issuer or Holdings, as applicable, (i) certifying as to whether a Default
that has not been disclosed in any prior Compliance Certificate (unless such
Default exists anew or continues to exist at such time, in which case it shall
be included on such Compliance Certificate) has occurred and, if such Default
has occurred or exists, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations of the financial covenants set forth in any Credit
Facilities, and demonstrating compliance therewith, (iii) stating whether any
Material Acquisition has occurred during the period covered by such financial
statements and (iv) stating whether any change in GAAP or in the application
thereof that has not been disclosed in any prior Compliance Certificate has
occurred since the date of the audited financial statements for the fiscal year
ended December 31, 2007 that would be relevant in the calculation of the
Consolidated Leverage Ratio and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause
(a) above, a report from the accounting firm that reported on such financial
statements, stating that (i) the financial information in the certificate
prepared by a Financial Officer of the Issuer or Holdings, as applicable,
pursuant to clause (c) above has been accurately extracted from the sources
identified therein and, where applicable, agrees with the underlying accounting
records, (ii) the calculations of the financial covenants in any Credit
Facilities set forth in such certificate are arithmetically correct and (iii)
the financial information set forth in such certificate is, as to elements and
composition, presented in accordance with the relevant accounting definitions
set forth in Section 1.01;
(e) promptly after the same become publicly available but no later than
the date the same are required to be filed or furnished, copies of all periodic
and other reports, proxy statements and other materials filed by the Issuer or
any Obligor or any of their Subsidiaries with the SEC, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by Holdings to its shareholders
generally, as the case may be;
(f) promptly after S&P or Moody's shall have announced a change in the
Debt Rating, written notice of such change;
(g) promptly following a request by the GSMP Purchasers, the GSMP VCOC
or any Subsequent Holder, all documentation and other information that the GSMP
Purchasers, the GSMP VCOC or any Subsequent Holder reasonably requests in order
to comply with its ongoing obligations under applicable "know your customer" and
anti-money laundering rules and regulations, including the PATRIOT Act; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of Holdings,
the Issuer or any of their Subsidiaries, or compliance with the terms of this
Agreement, as the GSMP Purchasers, the GSMP VCOC or any Subsequent Holder may
reasonably request.
21
Documents required to be delivered pursuant to Section 6.01(a), (b) or
(e) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered within the
time frames set forth in such Sections, shall be deemed to have been delivered
on the date (i) on which Holdings or the Issuer posts such documents, or
provides a link thereto on Holdings' website on the Internet at the website
address as set forth on Section 4.02 of the Indenture; or (ii) on which such
documents are posted on Holdings' or the Issuer's behalf on an Internet or
intranet website, if any, to which each GSMP Purchaser, the GSMP VCOC and any
Subsequent Holder have access (whether a commercial or third-party website);
provided that: (i) Holdings the Issuer, as applicable, shall deliver paper
copies of such documents to any GSMP Purchaser, the GSMP VCOC and any Subsequent
Holder upon the written request of such Person and until a written request to
cease delivering paper copies is given by such Person and (ii) Holdings or the
Issuer, as applicable, shall notify the GSMP Purchasers, the GSMP VCOC and any
Subsequent Holder (by telecopier or electronic mail) of the posting of any such
documents and provide to the GSMP Purchasers, the GSMP VCOC and any Subsequent
Holder by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance Holdings
and the Issuer shall be required to provide paper copies of the Compliance
Certificates required by Section 6.01(c) to the GSMP Purchasers, the GSMP VCOC
and any Subsequent Holder . Except for such Compliance Certificates, the GSMP
Purchasers, the GSMP VCOC and any Subsequent Holder shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by Holdings
or the Issuer with any such request for delivery, and each GSMP Purchaser, the
GSMP VCOC and any Subsequent Holder shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
6.2. Notices of Material Events.
Holdings or the Issuer will furnish to the GSMP Purchasers,
the GSMP VCOC and any Subsequent Holder prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the Issuer
or any Affiliate thereof that would reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, would reasonably be expected to result in
a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.2 shall be accompanied by a
statement of a Financial Officer or other Senior Officer of the Issuer or
Holdings setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
6.3. Books and Records; Access.
The Issuer will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made in all material respects of all dealings and transactions in relation to
its business and activities. Each of the Obligors will, and will cause each of
their Subsidiaries to:
22
(a) upon reasonable notice at reasonable times from time to time,
provide each GSMP Purchaser and the GSMP VCOC (and any Affiliate of a GSMP
Purchaser that is a venture capital operating company) reasonable opportunities
to meet and consult with and advise the management of the Issuer and each of
their Subsidiaries on all matters relating to the operation of the Issuer and
each such Subsidiary and management of Holdings and each of its Subsidiaries
with respect to the business of Holdings and each of its Subsidiaries;
(b) subject to compliance with applicable laws and upon reasonable
prior notice, give each GSMP Purchaser and the GSMP VCOC (and any parent company
of a GSMP Purchaser that is a venture capital operating company) and their
authorized representatives reasonable access during normal business hours to all
books of account and records, facilities and properties of the Issuer and its
Subsidiaries, and permit each GSMP Purchaser and the GSMP VCOC (and any parent
company of a GSMP Purchaser that is a venture capital operating company) to make
such copies and inspections thereof as any such Person may reasonably request,
and discuss the affairs, finances and accounts with the officers thereof;
(c) subject to compliance with applicable laws, promptly provide true
and correct copies of all documents, reports, financial data, and such
additional financial and other information with respect to the Issuer and its
Subsidiaries as each GSMP Purchaser or the GSMP VCOC (and any parent company of
a GSMP Purchaser that is a venture capital operating company) may from time to
time reasonably request; and
(d) upon reasonable notice at reasonable times from time to time,
permit any representative designated by any GSMP Purchasers or the GSMP VCOC
(and any parent company of a GSMP Purchaser that is a venture capital operating
company), upon reasonable prior notice, to visit and inspect its properties, and
to examine and make extracts from its books and records.
The rights provided to the GSMP VCOC (and any parent company
of a GSMP Purchaser that is a venture capital operating company) under this
Section 6 are intended to provide the GSMP VCOC (and any parent company of a
GSMP Purchaser that is a venture capital operating company) with the right to
substantially participate in, or substantially influence the conduct of, the
management of the Issuer for the purpose of qualifying the GSMP VCOC's (and any
parent company of a GSMP Purchaser that is a venture capital operating company)
investment in the Issuer as a "venture capital investment" for purposes of the
United States Department of Labor Regulation 29 C.F.R. Section
2510.3-101(d)(3)(i) (the "Plan Asset Regulation"). If necessary, upon the advice
of counsel, GSMP VCOC (and any parent company of a GSMP Purchaser that is a
venture capital operating company) shall be provided with additional
participation and management rights as the GSMP VCOC (and any parent company of
a GSMP Purchaser that is a venture capital operating company) may deem necessary
for the purpose of qualifying each GSMP VCOC's (and any parent company of a GSMP
Purchaser that is a venture capital operating company) investment in WNA as a
"venture capital investment" for purposes of the Plan Asset Regulation.
6.4. Tax Treatment.
Holdings and each Obligor will treat the Issuer as the debtor and
borrower under the Notes for all applicable Tax purposes, unless otherwise
required pursuant to a "determination" within the meaning of Section 1313(a) of
the Code or a comparable provision of state, local or non-U.S. tax law.
23
6.5. Use of Proceeds.
(a) The Issuer shall use the proceeds of the issuance of the Notes
solely to pay fees and expenses related to the Transactions and to make an
intercompany loan to WNA, and WNA will use the proceeds of such intercompany
loan solely to repay a portion of WNA's Existing Bridge Loan in accordance with
the terms thereof.
(b) No part of the proceeds of the Notes will be used, directly or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.
SECTION 7.
PROVISIONS RELATING TO RESALES OF NOTES
---------------------------------------
7.1. Private Offerings.
Offers and sales of the Notes will be made only by the Purchasers or
Affiliates thereof who are qualified to do so in the jurisdictions in which such
offers or sales are made. Each such offer or sale shall be made in accordance
with the Indenture only to (i) persons who are QIBs, (ii) accredited investors
(as defined in Regulation D) that the offeror or seller reasonably believes to
be and, with respect to sales and deliveries, are accredited investors, or (iii)
non-U.S. persons outside the United States (as such terms are defined in
Regulation S) to whom offers and sales of the Notes may be made in reliance upon
Regulation S and in accordance with applicable foreign securities laws.
7.2. Procedures and Management Cooperation in Private Offerings.
(a) The Issuer shall use its commercially reasonable best efforts to
cause the Notes to (i) be registered in book-entry form in the name of Cede &
Co., as nominee of The Depository Trust Company ("DTC") pursuant to a customary
form DTC Agreement, and (ii) be eligible for the National Association of
Securities Dealers, Inc. PORTAL market.
(b) If requested by the Required Holders, without prejudice to the
Registration Rights Agreement, the Issuer and its Subsidiaries will assist the
GSMP Purchasers in completing any sale process undertaken in connection with the
private resale of the Notes or any portion thereof (including any such re-sales
of the Notes pursuant to any Private Offering), to any number of prospective
Subsequent Purchasers, subject to Section 7.1 hereof, by (i) providing direct
contact between senior management and advisors and prospective Subsequent
Purchasers, (ii) responding to inquiries of, and providing answers to,
prospective Subsequent Purchasers, in each such case subject to reasonable
confidentiality undertakings, and (iii) providing assistance in completion of
the prospective Subsequent Purchasers; provided that such assistance shall not
be required more than two times per year or more than five times during the term
of the Notes (and it being understood that such assistance will not include a
preparation of an offering memorandum or a similar document and will otherwise
be limited to assistance set forth under items (i) through (iii) above.
7.3. No Integration.
24
The Issuer shall not, and shall not permit its Affiliates to, make any
offer or sale of securities of any class that is or will be integrated with the
sale of the Notes by the Issuer to the Purchasers in a manner that would require
registration of the Notes under the Securities Act.
SECTION 8.
EXPENSES, INDEMNIFICATION AND CONTRIBUTION
------------------------------------------
8.1. Expenses.
The Issuer will (regardless of whether the Closing occurs or not) after
presentation of a summary invoice therefor, reimburse the GSMP Purchasers for
all reasonable expenses (including reasonable attorneys' fees and disbursements
of one firm of outside counsel and any local counsel, if necessary, and other
advisors incurred by the GSMP Purchasers and any sales, use or similar Taxes
(including additions to such Taxes, if any) arising in connection with the
transactions contemplated by this Agreement and the other Financing Documents
and in connection with any amendments, waivers or consents under or in respect
of this Agreement or the other Financing Documents (whether or not such
amendment, waiver or consent becomes effective), including the reasonable and
documented out-of-pocket costs and expenses incurred in enforcing, defending or
declaring (or determining whether or how to enforce, defend or declare) any
rights or remedies under this Agreement or the other Financing Documents or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, or the other Financing
Documents, including in connection with any insolvency or bankruptcy of the
Issuer or any of its Subsidiaries or in connection with any work-out or
restructuring of the transactions contemplated hereby, by the Financing
Documents or by the Notes.
8.2. Indemnification.
The Issuer shall indemnify and hold harmless the GSMP Purchasers and
any Subsequent Holder and each of their respective Affiliates, partners,
stockholders, members, officers, directors, agents, employees and controlling
Persons (each, an "Indemnitee") from and against any and all actual losses,
claims, damages or liabilities to any such Indemnitee in connection with or as a
result of (a) the execution or delivery of any Financing Document or the
performance by the Issuer and its Subsidiaries of its obligations hereunder and
under the other Financing Documents or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (b) the issuance of Notes
or the use of the proceeds therefrom, (c) any liability with respect to
Environmental Claims or (d) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages or liabilities are determined by a court of
competent jurisdiction by final and non-appealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee.
8.3. Waiver of Punitive Damages.
To the extent permitted by applicable law, none of the Obligors shall
assert, and each hereby waives, any claim against the other parties (including
their respective Affiliates, partners, stockholders, members, officers,
directors, agents, employees and controlling Persons), on any theory of
liability for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, the other Financing Documents or the use of proceeds
thereof.
8.4. Survival.
The obligations of the Issuer under this Section 8 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement and the termination of this Agreement for any reason
whatsoever.
25
8.5. Tax Treatment of Indemnification Payments.
Any indemnification payment pursuant to this Agreement shall, to the
extent consistent with applicable law, be treated for all Tax purposes as an
adjustment to the Purchase Price.
SECTION 9.
MISCELLANEOUS
-------------
9.1. Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below if the sender on the same day sends a confirming copy of
such notice by a recognized overnight delivery service (charges prepaid), (c)
the day following the day (except if not a Business Day then the next Business
Day) on which the same has been delivered prepaid to a reputable national
overnight air courier service or (d) the third Business Day following the day on
which the same is sent by certified or registered mail, postage prepaid; in each
case to the respective parties at the address set forth below, or at such other
address as such party may specify by written notice to the other parties hereto:
(i) if to a GSMP Purchaser or the GSMP VCOC, to it at the
address specified on Schedule 2.2; with a copy to Fried, Frank, Harris,
Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004,
Attention: F. William Reindel, Esq. and J. Christian Nahr, Esq.,
Facsimile: 212-859-4000 or at such other address as such Purchaser or
its nominee shall have specified to the Issuer in writing;
(ii) if to a Subsequent Purchaser, to it at the address
specified on its counterpart signature page or at such other address as
such Subsequent Purchaser or its nominee shall have specified to the
Issuer in writing; and
(iii) if to the Issuer or any Initial Guarantor to it at:
Willis Group Holdings Limited, 51 Lime Street, London R13M 7DQ, United
Kingdom, Attention: Adam G. Ciongoli, Telephone: 011-44-203-124-8332,
Facsimile: 44 (0)20 3124 7183; with a copy to: Willis Legal, One World
Financial Center, 200 Liberty Street, New York, NY 10281, Attention:
Adam G. Ciongoli, Telephone: 212-915-8899, Facsimile: 212-519-5407, and
a copy to: Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY
10153, Attention: Michael J. Aiello, Telephone: 212-310-8552,
Facsimile: 212-310-8007 or at such other address as the Issuer shall
have specified to the GSMP Purchasers or any Subsequent Purchaser (if
any) in writing.
9.2. Benefit of Agreement and Assignments.
(a) Except as otherwise expressly provided herein, all covenants,
agreements and other provisions contained in this Agreement by or on behalf of
any of the parties hereto shall bind, inure to the benefit of and be enforceable
by their respective successors and assigns (including any Subsequent Purchaser).
(b) Nothing in this Agreement or in any other Financing Document,
express or implied, shall give to any Person other than the parties hereto or
thereto and their permitted successors and assigns (including any Subsequent
Purchaser) any benefit or any legal or equitable right, remedy or claim under
this Agreement.
26
(c) Notwithstanding anything to the contrary contained herein, the GSMP
Purchasers may assign the rights to purchase all or any portion of the Notes
allocated to such GSMP Purchaser pursuant to Schedule 2.2 to (i) any, direct or
indirect, Subsidiary of such GSMP Purchaser or any Affiliate of such GSMP
Purchaser, subject to such Subsidiary or Affiliate, as the case may be, making
the representations and warranties set forth in Section 5, and each such Person
shall be entitled to the full benefit and be subject to the obligations of this
Agreement as if such Person were a GSMP Purchaser hereunder and (ii) any
Subsequent Holder.
(d) The parties hereto expressly acknowledge and agree that (i) upon
execution of a counterpart signature page hereto (which, accompanied by an
updated Schedule 2.2, shall be binding on all parties), each GSMP Purchaser or
Subsequent Purchaser to whom the rights hereunder have been assigned and the
GSMP VCOC designated by the GSMP Purchasers shall become parties to this
Agreement for all purposes hereof and (ii) GSMP VCOC is an intended beneficiary
of Sections 6.1, 6.2, 9.2 and 9.4.
(e) Notwithstanding anything to the contrary herein and without
limiting the generality of Section 5.1(a)(ii), immediately after the Closing for
a period ending on the first anniversary of the Closing Date, the GSMP
Purchasers may sell Notes to the Subsequent Holders pursuant to applicable
exemptions from registration under the Securities Act and in compliance with
Section 7.
9.3. No Waiver; Remedies Cumulative.
No failure or delay on the part of any party hereto or any Purchaser in
exercising any right, power or privilege hereunder or under the Notes and no
course of dealing between the Issuer and any other party or Purchaser shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under the Notes preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein and in the
Notes are cumulative and not exclusive of any rights or remedies that the
parties or Purchasers would otherwise have. No notice to or demand on the Issuer
in any case shall entitle the Issuer to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the other
parties hereto or the Purchasers to any other or further action in any
circumstances without notice or demand.
9.4. Amendments, Waivers and Consents.
Subject to the second sentence of this Section 9.4, this Agreement may
be amended, and the observance of any term hereof may be waived (either
retroactively or prospectively), with the written consent of the Issuer, and the
Required Holders; provided, however, that no such amendment or waiver may,
without the prior written consent of the GSMP VCOC or the holders of a majority
in principal amount of the outstanding Notes held by the GSMP Purchasers, as
applicable, amend or waive the provisions of which the GSMP Purchasers or the
GSMP VCOC, as applicable, are beneficiaries. No amendment or waiver of this
Agreement will extend to or affect any obligation, covenant or agreement not
expressly amended or waived or thereby impair any right consequent thereon.
As used herein, the term "Agreement" and references thereto shall mean
this Agreement as it may from time to time be amended, supplemented or modified.
9.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by facsimile transmission or electronic transmission (in
..pdf or similar format) will be effective as delivery of a manually executed
counterpart hereof.
27
9.6. Reproduction.
This Agreement, the other Financing Documents and all documents
relating hereto and thereto, including, without limitation, (a) consents,
waivers and modifications that may hereafter be executed, (b) documents received
by the GSMP Purchasers and the GSMP VCOC at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished in connection herewith, may be reproduced by
any photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and any original document so reproduced may be destroyed.
Each of the Purchasers and the Issuer agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence. This Section 9.6 shall not prohibit the Issuer, any
other party hereto or any Purchaser from contesting any such reproduction to the
same extent that it could contest the original or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.
9.7. Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
9.8. Survival of Covenants and Indemnities.
All covenants and indemnities set forth herein shall survive the
execution and delivery of this Agreement, the issuance of the Notes and, except
as otherwise expressly provided herein with respect to covenants, the payment of
principal of the Notes and any other obligations hereunder.
9.9. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
(b) If any action, proceeding or litigation shall be brought by any
party hereto in order to enforce any right or remedy under this Agreement or any
of the Notes, such party hereby consents and will submit, and will cause each of
its Subsidiaries to submit, to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. Each party hereto hereby irrevocably
waives any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, which they may now or hereafter have to the
bringing of any such action, proceeding or litigation in such jurisdiction.
(c) Each party hereto irrevocably consents and will cause each of their
respective Subsidiaries to consent, to the service of process of any of the
aforementioned courts in any such action, proceeding or litigation by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party at its address set forth in Section 9.1, such service to become
effective five (5) days after such mailing.
28
(d) Nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by applicable law or to commence legal
proceedings or otherwise proceed against the other party in any other
jurisdiction. If service of process is made on a designated agent it should be
made by either personal delivery or mailing a copy of summons and complaint to
the agent via registered or certified mail, return receipt requested.
(e) EACH OBLIGOR, EACH PURCHASER AND THE GSMP VCOC HEREBY WAIVE AND
WILL CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO WAIVE, ANY AND ALL RIGHTS IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE NOTES.
9.10. Severability.
If any provision of this Agreement is determined to be illegal, invalid
or unenforceable, such provision shall be fully severable to the extent of such
illegality, invalidity or unenforceability and the remaining provisions shall
remain in full force and effect and shall be construed without giving effect to
such illegal, invalid or unenforceable provision.
9.11. Entirety.
This Agreement together with the other Financing Documents represents
the entire agreement of the parties hereto and thereto with respect to the
subject matter hereof and thereof, and supersedes all prior agreements and
understandings, oral or written, if any, relating to the Financing Documents or
the transactions contemplated herein or therein.
9.12. Survival of Representations and Warranties.
All representations and warranties made by any Obligor herein shall
survive the execution and delivery of this Agreement, the issuance and transfer
of all or any portion of the Notes, and the payment of principal of the Notes
and the issuance and delivery of the Notes, and any other obligations hereunder,
regardless of any investigation made at any time by or on behalf of the
Purchasers.
9.13. Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person,
whether or not expressly specified in such provision.
9.14. Incorporation.
All Exhibits and Schedules attached hereto are incorporated as part of
this Agreement as if fully set forth herein.
29
9.15. Confidentiality.
(a) Subject to the provisions of clause (b) of this Section 9.15, each
Purchaser (including each GSMP Purchaser and each Subsequent Holder) and the
GSMP VCOC agrees that it will not disclose without the prior consent of the
Issuer (other than to its employees, auditors, investors, partners, creditors,
lenders, rating agencies, advisors or counsel, in each case, to the extent such
disclosure reasonably relates to the administration of the investment
represented by its Notes and such Person is informed that such information is
subject to the provisions of this Section 9.15 and such Person has entered into
a customary confidentiality agreement obligating such Person to keep such
information confidential or is otherwise bound by an appropriate confidentiality
obligation) any nonpublic information which has been furnished to such Purchaser
or GSMP VCOC in connection with its evaluation of an investment in the Notes and
of the other transactions referred to herein or is now or in the future
furnished pursuant to this Agreement or any other Financing Document (including
Section 8.1 hereof) ("Confidential Information"); provided that any Purchaser or
the GSMP VCOC may disclose any such information (i) as has become generally
available to the public other than by virtue of a breach of this Section 9.15(a)
by such Purchaser or GSMP VCOC or any other Person to whom such Purchaser or
GSMP VCOC has provided such information as permitted by this Section 9.15, (ii)
as may be required in any report, statement or testimony required to be
submitted to any Governmental Authority having jurisdiction over such Purchaser
or GSMP VCOC or to the SEC or similar organizations (whether in the United
States of America or elsewhere), (iii) as may be required or appropriate in
respect of any summons or subpoena or in connection with any litigation, (iv) as
may be required or appropriate in order to comply with any applicable law and
(v) to any prospective or actual Subsequent Purchaser in connection with any
contemplated transfer of any of the Notes by such Purchaser; provided that any
prospective Subsequent Purchaser expressly agrees in writing to be bound by the
confidentiality provisions contained in this Section 9.15 or a substantially
identical confidentiality obligation. Each Purchaser and the GSMP VCOC agrees
that in the event it intends to disclose confidential information in accordance
with clause (ii), (iii) or (iv) above, it shall, to the extent reasonably
practicable, provide the Issuer notice of such requirement prior to making any
disclosure so that the Issuer may seek an appropriate protective order or
confidential treatment of the information being disclosed.
(b) The Issuer hereby acknowledges and agrees that each Purchaser and
the GSMP VCOC may share with any of its Affiliates, and such Affiliates may
share with such Purchaser and GSMP VCOC, any information related to the Issuer
or any of its Subsidiaries (including, without limitation, any nonpublic
information regarding the creditworthiness of the Issuer and its Subsidiaries)
to the extent such sharing reasonably relates to the administration of the
investment represented by the Notes and such Affiliates are informed that such
information is subject to the provisions of this Section 9.15; provided such
Persons shall be subject to the provisions of this Section 9.15 to the same
extent as such Purchaser and GSMP VCOC.
(c) Notwithstanding anything in this Agreement to the contrary, the
Purchasers and GSMP VCOC shall not disclose to USI Holdings Corporation and its
Subsidiaries any Confidential Information related to or containing: costs
(including salaries or benefits); prices or other competitive terms of sale;
profitability; marketing, strategic or business plans; product development
plans, customers; or any other information, which could reasonably be expected
to be used to the competitive detriment of Holdings.
9.16. Maximum Rate.
In no event shall any interest or fee to be paid hereunder or under a
Note exceed the maximum rate permitted by applicable law. In the event any such
interest rate or fee exceeds such maximum rate, such rate shall be adjusted
downward to the highest rate (expressed as a percentage per annum) or fee that
the parties could validly have agreed to by contract on the date hereof under
applicable law.
30
9.17. PATRIOT Act.
The Purchasers hereby notify the Issuer that pursuant to the
requirements of the PATRIOT Act, the Purchasers may be required to obtain,
verify and record information that identifies Holdings, the Issuer and their
respective Subsidiaries, including their respective names and addresses other
information that will allow the Purchasers to identify Holdings, the Issuer and
their respective Subsidiaries in accordance with the PATRIOT Act.
9.18. Currency.
All dollar amounts referred to in this Agreement are in lawful money of
the United States.
9.19. Further Assurances.
Each of the parties hereto shall, upon reasonable request of any other
party hereto, do, make and execute all such documents, acts, matters and things
as may be reasonably required in order to give effect to the transactions
contemplated hereby.
[SIGNATURE PAGES FOLLOW]
31
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
TRINITY ACQUISITION LIMITED
By:
------------------------------
Name: Patrick C. Regan
Title: Director
WILLIS GROUP HOLDINGS LIMITED
By:
------------------------------
Name: Patrick C. Regan
Title: Chief Financial Officer
WILLIS INVESTMENT HOLDINGS UK, LTD.
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
By:
------------------------------
Name: Patrick C. Regan
Title: Director
WILLIS NORTH AMERICA INC.
By:
------------------------------
Name: Joseph Plumeri
Title: Executive Chairman
32
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
PURCHASERS: GSMP V ONSHORE INTERNATIONAL, LTD.
By:
------------------------------------
Name:
Title:
GSMP V OFFSHORE INTERNATIONAL, LTD.
By:
------------------------------------
Name:
Title:
GSMP V INSTITUTIONAL INTERNATIONAL, LTD.
By:
------------------------------------
Name:
Title:
GS MEZZANINE PARTNERS V INSTITUTIONAL, L.P.
By: GS Mezzanine Advisors V, L.L.C., its
general partner
By:
------------------------------------
Name:
Title:
33
Exhibit 4.2
EXECUTION VERSION
================================================================================
INDENTURE
Dated as of March 6, 2009
Among
TRINITY ACQUISITION LIMITED,
WILLIS GROUP HOLDINGS LIMITED,
THE OTHER GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
and
THE BANK OF NEW YORK MELLON,
as Trustee
12.875% SENIOR NOTES DUE 2016
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions..............................................1
Section 1.02 Other Definitions.......................................24
Section 1.03 Rules of Construction...................................24
Section 1.04 Acts of Holders.........................................25
Section 1.05 Legal Holiday...........................................26
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms..................................27
Section 2.02 Execution and Authentication............................27
Section 2.03 Registrar and Paying Agent..............................28
Section 2.04 Paying Agent to Hold Money in Trust.....................28
Section 2.05 Holder Lists............................................29
Section 2.06 Transfer and Exchange...................................29
Section 2.07 Replacement Notes.......................................38
Section 2.08 Outstanding Notes.......................................38
Section 2.09 Treasury Notes..........................................39
Section 2.10 Temporary Notes.........................................39
Section 2.11 Cancellation............................................39
Section 2.12 Defaulted Interest......................................39
Section 2.13 CUSIP Numbers...........................................40
Section 2.14 Tax.....................................................40
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee......................................43
Section 3.02 Selection of Notes to Be Redeemed or Purchased..........43
Section 3.03 Notice of Redemption....................................44
Section 3.04 Effect of Notice of Redemption..........................44
Section 3.05 Deposit of Redemption or Purchase Price.................45
Section 3.06 Notes Redeemed or Purchased in Part.....................45
Section 3.07 Optional Redemption.....................................45
Section 3.08 Early Redemption for Tax Reasons........................46
Section 3.09 Mandatory Redemption....................................47
Section 3.10 Offers to Repurchase by Application of Excess Proceeds..47
i
Page
----
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes........................................49
Section 4.02 Reports and Other Information...........................49
Section 4.03 Corporate Existence; Conduct of Business................50
Section 4.04 Taxes...................................................50
Section 4.05 Maintenance of Properties; Insurance....................51
Section 4.06 Compliance with Laws....................................51
Section 4.07 Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock and Preferred Stock...........51
Section 4.08 Liens...................................................53
Section 4.09 Offer to Repurchase Upon Change of Control..............53
Section 4.10 Asset Sales.............................................55
Section 4.11 Sale and Lease-Back Transactions........................56
Section 4.12 Limitation on Restricted Payments.......................57
Section 4.13 Maintenance of Office or Agency.........................59
Section 4.14 Stay, Extension and Usury Laws..........................59
Section 4.15 Dividend and Other Payment Restrictions Affecting
Subsidiaries........................................59
Section 4.16 Maintenance of Listing..................................61
Section 4.17 Ratings for Notes.......................................61
Section 4.18 Additional Guarantees...................................61
Section 4.19 Centre of Main Interests................................61
Section 4.20 Maintenance of Process Agent............................62
Section 4.21 Registration............................................62
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially
All Assets..........................................62
Section 5.02 Successor Corporation Substituted.......................64
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.......................................64
Section 6.02 Acceleration............................................66
Section 6.03 Other Remedies..........................................66
Section 6.04 Waiver of Past Defaults.................................67
Section 6.05 Control by Majority.....................................67
Section 6.06 Limitation on Suits.....................................67
Section 6.07 Rights of Holders of Notes to Receive Payment...........67
Section 6.08 Collection Suit by Trustee..............................68
Section 6.09 Restoration of Rights and Remedies......................68
Section 6.10 Rights and Remedies Cumulative..........................68
Section 6.11 Delay or Omission Not Waiver............................68
Section 6.12 Trustee May File Proofs of Claim........................68
ii
Page
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Section 6.13 Priorities..............................................69
Section 6.14 Undertaking for Costs...................................69
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.......................................69
Section 7.02 Rights of Trustee.......................................70
Section 7.03 Individual Rights of Trustee............................71
Section 7.04 Trustee's Disclaimer....................................71
Section 7.05 Notice of Defaults......................................72
Section 7.06 Compensation and Indemnity..............................72
Section 7.07 Replacement of Trustee..................................73
Section 7.08 Successor Trustee by Merger, etc........................73
Section 7.09 Eligibility; Disqualification...........................73
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance..........................................74
Section 8.02 Legal Defeasance and Discharge..........................74
Section 8.03 Covenant Defeasance.....................................74
Section 8.04 Conditions to Legal or Covenant Defeasance..............75
Section 8.05 Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions............76
Section 8.06 Repayment to Issuer.....................................77
Section 8.07 Reinstatement...........................................77
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.....................77
Section 9.02 With Consent of Holders of Notes........................78
Section 9.03 Revocation and Effect of Consents.......................79
Section 9.04 Notation on or Exchange of Notes........................80
Section 9.05 Trustee to Sign Amendments, etc.........................80
Section 9.06 Payment for Consent.....................................80
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee...............................................81
Section 10.02 Limitation on Guarantor Liability.......................82
Section 10.03 Execution and Delivery..................................82
Section 10.04 Subrogation.............................................83
Section 10.05 Benefits Acknowledged...................................83
iii
Page
----
Section 10.06 Release of Guarantees...................................83
Section 10.07 Rights of Holders.......................................83
Section 10.08 Certain Waivers.........................................84
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge..............................84
Section 11.02 Application of Trust Money..............................85
ARTICLE 12
MISCELLANEOUS
Section 12.01 Notices.................................................85
Section 12.02 Service of Process......................................87
Section 12.03 Certificate and Opinion as to Conditions Precedent......87
Section 12.04 Statements Required in Certificate or Opinion...........88
Section 12.05 Rules by Trustee and Agents.............................88
Section 12.06 No Personal Liability of Directors, Officers, Employees
and Stockholders....................................88
Section 12.07 Governing Law...........................................88
Section 12.08 Waiver of Jury Trial....................................88
Section 12.09 Force Majeure...........................................89
Section 12.10 No Adverse Interpretation of Other Agreements...........89
Section 12.11 Successors..............................................89
Section 12.12 Severability............................................89
Section 12.13 Counterpart Originals...................................89
Section 12.14 Table of Contents, Headings, etc........................89
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Supplemental Indenture to Be Delivered by Subsequent
Guarantors
Exhibit E Form of Notation of Guarantee
Exhibit F Form of Subordination Agreement
SCHEDULES
Schedule A Guarantors
Schedule 1.01(A) Existing Investments
Schedule 1.01(B) Existing Liens
Schedule 4.02 Reports and Other Information
Schedule 4.11 Sale and Lease-Back Transactions
iv
INDENTURE, dated as of March 6, 2009, among TRINITY
ACQUISITION LIMITED, a company organized and operated under the laws of England
and Wales (the "Issuer"), WILLIS GROUP HOLDINGS LIMITED, an exempted company
under the Companies Act 1981 of Bermuda ("Holdings"), the other GUARANTORS (as
defined herein) listed on the signature pages hereto and THE BANK OF NEW YORK
MELLON, as Trustee.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Issuer has duly authorized the creation of an
issue of $500,000,000.00 aggregate principal amount of 12.875% Senior Notes due
2016 (the "Notes"); and
WHEREAS, the Obligors (as defined below) have duly authorized
the execution and delivery of this Indenture.
NOW, THEREFORE, each of the Obligors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
-----------
"144A Global Note" means a Global Note substantially in the
form of Exhibit A hereto, bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depository or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Guarantor Indebtedness" means Indebtedness of any
other Person existing at the time such other Person is merged with or became a
Guarantor, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or becoming a
Guarantor of such specified Person.
"Acquired Indebtedness" means Indebtedness of any other Person
existing at the time such other Person is merged with or became a Subsidiary,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or becoming a Subsidiary of
such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar or Paying Agent.
"Applicable Premium" means, with respect to any Note on any
Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption
Date of (i) the redemption price of such Note at September 1, 2013 (such
redemption price being set forth in Section 3.07(c) hereof), plus (ii) all
required interest payments due on such Note through September 1, 2013
(excluding accrued but unpaid interest to the Redemption Date), computed
using a discount rate equal to the Treasury Rate as of such Redemption Date
plus 50 basis points; over (b) the then outstanding principal amount of
such Note.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository, Euroclear and/or Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, conveyance, transfer or other disposition, whether in a
single transaction or a series of related transactions, of property or
assets (including by way of a Sale and Lease-Back Transaction) of Holdings
or any of its Subsidiaries (each referred to in this definition as a
"disposition"); or
(2) the issuance, sale or disposition of Equity Interests of any
Subsidiary of Holdings, whether in a single transaction or a series of
related transactions;
in each case, other than:
(a) any disposition of Cash Equivalents;
(b) the disposition of obsolete, damaged or worn out property or
equipment in the ordinary course of business or any disposition of
inventory (or other assets) held for sale in the ordinary course of
business and dispositions of property no longer used or useful in the
conduct of the business of Holdings and its Subsidiaries (excluding
any such dispositions pursuant to or in contemplation of the
discontinuation of any operation or division);
(c) the disposition of all or substantially all of the assets of
any Obligor in a manner permitted pursuant to the provisions described
under Section 5.01 hereof;
(d) the making of any Restricted Payment or Permitted Investment
that is permitted to be made, and is made, under Section 4.12 hereof,
or the granting of a Permitted Lien pursuant to this Indenture;
(e) any disposition of property or assets or issuance of
securities by Holdings or any of its Wholly-Owned Subsidiaries to
Holdings or any of its other Wholly-Owned Subsidiaries;
(f) to the extent allowable under Section 1031 of the Code, any
exchange of like property (excluding any boot thereon) for use in a
Similar Business;
(g) the lease, assignment or sub-lease of any real or personal
property and the licensing of intellectual property in the ordinary
course of business;
(h) foreclosures on assets or transfers by reason of eminent
domain;
2
(i) the disposition of an account receivable in connection with
the collection or compromise thereof;
(j) the disposition of assets or properties with an aggregate
fair market value of not more than $5,000,000.00 for any single
transaction or series of related transactions and not more than
$25,000,000.00 in any fiscal year for all such transactions;
(k) the disposition of any Investment made by WSI pursuant to
clause (9) of the definition of Permitted Investments in the
ordinary course of WSI's business; and
(l) the provision of services by Holdings and its Subsidiaries in
the ordinary course of business.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, as of the time of determination, the present value
(discounted at the implicit interest rate for such Sale and Lease-Back
Transaction, compounded annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Bankruptcy Law" means (1) the United States federal Bankruptcy Code,
Title 11 of the United States Code, as amended from time to time; (2) the UK
Insolvency Act 1986 as amended from time to time and any other bankruptcy,
insolvency, liquidation or similar laws of general application; (3) the Bermuda
Bankruptcy Act 1989; and (4) any equivalent law of any other jurisdiction
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "Person" or "group" (as such terms are
used in Section 13(d)(3) of the Exchange Act), such Person or group will be
deemed to have beneficial ownership of all shares of Capital Stock that such
Person or group has the right to acquire, whether such right is currently
exercisable or is exercisable only after the passage of time. The terms
"Beneficially Own" and "Beneficial Ownership" have a correlative meaning.
"Board of Directors" means:
------------------
(1) with respect to a corporation or company, the board of directors
of the corporation or company or any committee thereof duly authorized to
act on behalf of such board,
(2) with respect to a partnership, the board of directors of the
general partner of the partnership,
(3) with respect to a limited liability company, the managing member
or members or any controlling committee of managing members thereof, and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function as any of the foregoing.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means:
(1) in the case of a corporation or company, any and all shares, other
equivalents of, or interests in (howsoever designated), the equity of such
corporation or company;
3
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock:
(3) in the case of a partnership, unlimited liability company or
limited liability company, any and all partnership or membership interests
(whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Capitalized Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized and reflected as a
liability on a balance sheet (excluding the footnotes thereto) in
accordance with GAAP.
"Cash Equivalents" means:
(1) United States dollars;
(2) (a) euro, or any national currency of any participating member
state of the EMU; or (b) such local currencies held by Holdings or any of
its Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally
guaranteed by the U.S. government or any agency or instrumentality thereof
the securities of which are unconditionally guaranteed as a full faith and
credit obligation of such government with maturities of 24 months or less
from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight
bank deposits, in each case with any commercial bank having tangible equity
capital of not less than $500,000,000.00;
(5) repurchase obligations for underlying securities of the types
described in clauses (3) and (4) entered into with any financial
institution meeting the qualifications specified in clause (4) above;
(6) commercial paper, marketable short-term money market and similar
securities rated at least P-1 by Moody's or at least A-1 by S&P (or such
similar rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)) and in
each case maturing within 12 months after the date of creation thereof; and
(7) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1) through (6) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts
denominated in currencies other than those set forth in clauses (1) and (2)
above; provided that such amounts are converted into any currency listed in
clauses (1) and (2) as promptly as practicable and in any event within 10
Business Days following the receipt of such amounts.
"Centre of Main Interests" has the meaning given to it in Article 3(1)
of the Council Regulation (EC) No 1346/2000 of May 29, 2000 on Insolvency
Proceedings.
4
"Change of Control" means the occurrence of any of the following:
-----------------
(1) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the assets of the Issuer and
its Subsidiaries or Holdings and its Subsidiaries, in each case taken as a
whole, to any Person;
(2) (a) the acquisition by any "Person" or "group" (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), in a single transaction or in a
related series of transactions, by way of merger, amalgamation,
consolidation or other business combination or purchase of any shares of
Capital Stock, after giving effect to which such Person or group is or
becomes the Beneficial Owner of Capital Stock of Holdings representing
during any Holding Period, 35% or more, and otherwise, 50% or more of the
total voting or economic power of the Voting Stock of Holdings or (b) such
Person or group has the right or ability, directly or indirectly, by
agreement, voting power or otherwise to designate and cause the election of
a majority of the Board of Directors of Holdings;
(3) Holdings shall cease to own, directly or indirectly, 100% of the
outstanding Equity Interests of any of the Issuer, WNA or Willis Faber
Ltd., a company organized under the laws of England and Wales;
(4) Holdings is liquidated or dissolved or adopts a plan of
liquidation or dissolution that is not a Default or Event of Default
pursuant to Section 6.01(f) or (g);
(5) the occurrence of a "change of control" (however defined) under
any Material Indebtedness; or
(6) the first day on which a majority of the members of the Board of
Directors of Holdings are not Continuing Directors.
"Clearstream" means Clearstream Banking, Societe Anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Companies Act 2006" means the English Companies Act 2006, as amended
from time to time.
"Consolidated Depreciation and Amortization Expense" means with
respect to Holdings and its Subsidiaries for any period, the total amount
of depreciation and amortization expense, including the amortization of
deferred financing fees of Holdings and its Subsidiaries for such period on
a consolidated basis and otherwise determined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to Holdings and its
Subsidiaries for any period, the Consolidated Net Income of Holdings and
its Subsidiaries for such period (in each case, without duplication):
(1) increased by:
5
(a) provision for taxes based on income, including, without
limitation, state, franchise and similar taxes and foreign withholding
taxes of Holdings and its Subsidiaries paid or accrued during such
period deducted in computing Consolidated Net Income; plus
(b) Consolidated Interest Expense of Holdings and its
Subsidiaries for such period to the extent the same was deducted in
calculating such Consolidated Net Income; plus
(c) Consolidated Depreciation and Amortization Expense of
Holdings and its Subsidiaries for such period to the extent the same
were deducted in computing Consolidated Net Income; plus
(d) any expenses or charges (other than Consolidated Depreciation
and Amortization Expense) related to any Equity Offering, Permitted
Investment, acquisition, disposition, recapitalization or the
incurrence of Indebtedness permitted to be incurred by this Indenture
(including a refinancing thereof) (whether or not successful),
including (i) such fees, expenses or charges related to the offering
of the Notes and the Credit Facilities and (ii) any amendment or other
modification of the Notes, and, in each case, deducted in computing
Consolidated Net Income; plus
(e) any other non-cash charges, including any write offs or write
downs, reducing Consolidated Net Income for such period (other than
any such non-cash charges that represent an accrual or reserve for
potential cash items in any future period) to the extent deducted in
computing Consolidated Net Income; plus
(f) any costs incurred in connection with (i) acquisitions other
than the Merger in an aggregate amount with respect to any such
acquisition not to exceed 5% of the aggregate consideration for such
acquisition and (ii) the Merger in an aggregate not to exceed
$50,000,000.00, in each case, to the extent deducted in computing
Consolidated Net Income; plus
(g) any extraordinary losses for such period to the extent
deducted in computing Consolidated Net Income; plus
(h) any non-recurring or restructuring charges for such period to
the extent deducted in computing Consolidated Net Income (provided,
that amounts added pursuant to this clause (h) for any period shall
not exceed 10% of the amount of Consolidated EBITDA for such period
computed in accordance with this definition but before giving effect
to the amounts added pursuant to this clause (h) for such period);
(2) decreased by:
(a) non-cash gains increasing Consolidated Net Income of such Person
for such period, excluding any non-cash gains to the extent they represent
the reversal of an accrual or reserve for a potential cash item that
reduced Consolidated EBITDA in any prior period; and
(b) any extraordinary or non-recurring gains increasing Consolidated
Net Income of such Person for such period;
6
provided that Consolidated EBITDA for such period shall be adjusted as follows
(without duplication) as applicable;
(A) any net gain or loss resulting in such period from Swap Contracts
that are not accounted for as fair value hedges under the Statement of
Financial Accounting Standards No. 133 or International Accounting Standard
No. 39 shall be excluded;
(B) any net gain or loss resulting in such period from currency
translation gains or losses related to (i) currency remeasurements of
Indebtedness (including any net loss or gain resulting from hedge
agreements for currency exchange risk) and (ii) United Kingdom pension
plans, shall be excluded;
(C) the cumulative effect of a change in accounting principles during
such period shall be excluded;
(D) any after-tax effect of income (loss) from disposed or
discontinued operations and any net after-tax gains or losses on disposal
of disposed, abandoned or discontinued operations shall be excluded;
(E) any after-tax effect of gains or losses (less all fees and
expenses relating thereto) attributable to asset dispositions other than in
the ordinary course of business, as determined in good faith by Holdings or
the Issuer, shall be excluded;
(F) the Consolidated Net Income for such period of any Person that is
not a Subsidiary of Holdings, or that is accounted for by the equity method
of accounting, shall be excluded; provided that Consolidated Net Income of
Holdings shall be increased by the amount of dividends or distributions or
other payments that are actually paid in cash (or to the extent converted
into cash) to the referent Person or a Subsidiary thereof in respect of
such period;
(G) effects of adjustments in Holdings' financial statements pursuant
to GAAP resulting from the application of purchase accounting, net of
taxes, shall be excluded;
(H) any after-tax effect of income (loss) from the early
extinguishment of Indebtedness or Swap Contracts or other derivative
instruments shall be excluded; and
(I) any impairment charge or asset write-off, in each case, pursuant
to GAAP and the amortization of intangibles arising pursuant to GAAP shall
be excluded.
"Consolidated Funded Indebtedness" means, as of any date of determination,
the sum of (a) the aggregate principal amount of Indebtedness of Holdings and
its Subsidiaries outstanding as of such date, in the amount that would be
reflected on the balance sheet of Holdings and its Subsidiaries prepared as of
such date on a consolidated basis in accordance with GAAP, plus (b) the
aggregate principal amount of obligations for borrowed money that are
outstanding as of such date of Persons other than Holdings and its Subsidiaries,
to the extent guaranteed by Holdings or any of its Subsidiaries.
7
"Consolidated Interest Expense" means, with respect to Holdings and its
Subsidiaries for any period, without duplication, the sum of:
(1) consolidated interest expense of Holdings and its Subsidiaries for
such period, to the extent such expense was deducted (and not added back)
in computing Consolidated Net Income (including (a) amortization of
original issue discount resulting from the issuance of Indebtedness at less
than par, (b) all commissions, discounts and other fees and charges owed
with respect to letters of credit or bankers acceptances, (c) non-cash
interest payments (but excluding any non-cash interest expense attributable
to the movement in the mark to market valuation of Swap Contracts or other
derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations, and (e) net payments, if any, pursuant to
interest rate Swap Contracts with respect to Indebtedness, and excluding
(i) amortization of deferred financing fees, debt issuance costs,
commissions, fees and expenses, and (ii) any expensing of bridge,
commitment and other financing fees; less
(2) interest income for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined by Holdings
and its Subsidiaries to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP.
"Consolidated Leverage Ratio" means at any time the ratio of
Consolidated Funded Indebtedness at such time to Consolidated EBITDA for the
most recently ended four fiscal quarters for which financial statements have
been (or are required to be) delivered to the Holders in accordance with
Section 4.02(a) or (b). In the event that Holdings or any of its
Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness or
issues or redeems Disqualified Stock subsequent to the commencement of the
period for which the Consolidated Leverage Ratio is being calculated but on or
prior to or simultaneously with the event for which the calculation of the
Consolidated Leverage Ratio is made (the "Calculation Date"), then the
Consolidated Leverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of Disqualified Stock, as if the same had occurred
at the beginning of the applicable four-quarter period (the "reference
period").
For purposes of making the computation referred to above, distributions,
dividends, Investments, acquisitions, dispositions, mergers and consolidations
that have been made by Holdings or any of its Subsidiaries during the reference
period or subsequent to the reference period and on or prior to or
simultaneously with the Calculation Date shall be given pro forma effect as if
all such distributions, dividends, Investments, acquisitions, dispositions,
mergers and consolidations (and all related financing transactions) had occurred
on the first day of the reference period. Additionally, if since the beginning
of such reference period any Person that subsequently became a Subsidiary or was
merged with or into Holdings or any of its Subsidiaries since the beginning of
such reference period shall have made any distribution, dividend, Investment,
acquisition, disposition, merger or consolidation that would have required
adjustment pursuant to this definition, then the Consolidated Leverage Ratio
shall be calculated giving pro forma effect thereto for such reference period as
if such distribution, dividend, Investment, acquisition, disposition, merger or
consolidation (and all related financing transactions) had occurred at the
beginning of the reference period.
For purposes of this definition, whenever pro forma effect is to be given
to a transaction, the pro forma calculations shall be made in accordance with
Regulation S-X under the Securities Act. If any Indebtedness bears a floating
rate of interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the Calculation
8
Date had been the applicable rate for the entire period (taking into account any
Swap Contracts applicable to such Indebtedness). "Consolidated Net Income"
means, with respect to Holdings and its Subsidiaries for any period, the
aggregate of the Net Income, of Holdings and its Subsidiaries for such period,
on a consolidated basis, and otherwise determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
individuals who
(1) were members of such Board of Directors on the Issue Date; or
(2) were nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.01 hereof or such other address as to which the
Trustee may give notice to the Holders and the Issuer.
"Credit Agreement" means that certain $1,000,000,000.00 Credit
Agreement, dated as of October 1, 2008, among WNA, Holdings, Bank of America,
N.A., as Administrative Agent, and each lender from time to time party thereto
and any amendments, supplements, modifications, extensions, renewals or
restatements thereof.
"Credit Facilities" means, with respect to any Obligor, the Credit
Agreement, one or more debt facilities or other financing arrangements
(including, without limitation, commercial paper facilities or indentures)
providing for revolving credit loans, term loans, letters of credit or other
long-term indebtedness, including any notes, mortgages, guarantees, collateral
documents, instruments and agreements executed in connection therewith, incurred
pursuant to Section 4.07(b)(i) and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or
credit facilities or commercial paper facilities that replace, refund or
refinance any part of the loans, notes, other credit facilities or commitments
thereunder in each case permitted under Section 4.07(b)(i) hereof whether by the
same or any other agent, lender or group of lenders.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Debt Rating" means, as of any date of determination, the rating as
determined by any Rating Agency (if by more than one Rating Agency,
collectively, the "Debt Ratings"), as applicable, of the Issuer's non credit
enhanced, senior unsecured long term debt.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Default Interest Rate" means a rate equal to 2% per annum.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06(c) hereof,
substantially in the form of Exhibit A hereto, except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
9
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Notes, and any and all successors thereto
appointed as Depository hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Change of Control" means any event constituting a Change
of Control pursuant to paragraph 2(a) of the definition thereof so long as
after giving effect thereto the Person or group referred to therein does not
become the Beneficial Owner of Capital Stock of Holdings representing 50% or
more of the total voting or economic power of the Voting Stock of Holdings.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which, by its terms, or by the terms of any security into
which it is convertible or for which it is putable or exchangeable, or upon
the happening of any event, matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof (other than solely as a result of a change of control or asset
sale), in whole or in part, in each case prior to the date that is 91 days
after the earlier of the maturity date of the Notes or the date the Notes are
no longer outstanding; provided, however, that if such Capital Stock is issued
to any plan for the benefit of employees of Holdings or its Subsidiaries or by
any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by
Holdings or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock, but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock.
"Equity Offering" means any public or private sale of common stock or
Preferred Stock of Holdings (excluding Disqualified Stock), other than:
(1) public offerings with respect to Holdings common stock registered
on Form S-8; and
(2) issuances to any Subsidiary of Holdings.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, is treated as a single employer
under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code), as amended from
time to time, and the regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by Holdings or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Holdings or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Pension Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
10
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Holdings or
any ERISA Affiliate.
"Euroclear" means Euroclear S.A./N.V., as operator of the Euroclear
system.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated thereunder.
"Existing Bridge Loan" means that certain 364-Day Credit Agreement
dated as of October 1, 2008 between Holdings, WNA, the lenders party thereto,
Bank of America, N.A., as administrative agent, Banc of America Securities LLC,
J.P. Morgan Securities Inc., Suntrust Robinson Humphrey, Inc., and the Royal
Bank of Scotland, PLC as Book Managers, and Bank of America Securities LLC as
Sole Lead Arranger.
"Existing Notes" means the 5.125% Senior Notes due 2010, the 5.625%
Senior Notes due 2015 and the 6.20% Senior Notes due 2017 issued by WNA.
"euro" means the single currency of participating member states of
the EMU.
"Financial Officer" means, with respect to any Obligor, the chief
executive officer, chief financial officer, principal accounting officer,
treasurer or controller thereof, as applicable.
"Financing Documents" means collectively, the Indenture, the Note
Purchase Agreement, the Notes, the Registration Rights Agreement, any
supplemental indenture and all certificates, instruments, and other documents
made or delivered in connection herewith and therewith.
"GAAP" means generally accepted accounting principles in the United
States which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section
2.06(f)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes, substantially in the form of Exhibit A hereto, issued
in accordance with Article 2 hereof.
"Governmental Authority" means the government of the United States,
United Kingdom or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government where appropriate (including any supra-national bodies
such as the European Union or the European Central Bank).
"Government Securities" means securities that are:
(1) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged; or
11
(2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the
issuers thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such Government Securities or a specific payment of principal of or
interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Securities or the specific payment
of principal of or interest on the Government Securities evidenced by such
depository receipt.
"GSMP Group" means, collectively, (i) GSMP V Onshore International,
Ltd., GSMP V Offshore International, Ltd. and GSMP V Institutional
International, Ltd., (ii) any other Affiliate of GS Mezzanine Partners V
Institutional, L.P. or The Goldman Sachs Group, Inc., and (iii) any
Subsidiaries of the foregoing.
"GSMP Purchasers" has the meaning set forth in the Note Purchase
Agreement.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness or other
obligations, as applicable, or the act of making a guarantee in accordance with
the foregoing.
"Guarantee" means the guarantee by the Guarantors of the Issuer's
Obligations under this Indenture.
"Guarantor" means each Person that guarantees the Notes in accordance
with the terms of this Indenture and any other Person that becomes a party as a
Guarantor to this Indenture pursuant to a supplemental indenture in the form of
Exhibit D hereto.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Holding Company" means each of Holdings, WNA and each other
Subsidiary of Holdings (other than the Issuer) that is a direct or indirect
parent of either the Issuer or WNA.
"Holding Period" means any period during which the GSMP Group
constitutes the Required Holders; provided, however, on the Issue Date a Holding
Period shall be in effect; and provided, further, that in no event shall the
Trustee be charged with knowledge of such Holding Period unless it has received
an Officer's Certificate, on which the Trustee shall be fully protected in
relying, from the Issuer that certifies such Holding Period has ended or
commenced; provided, further, that Trustee shall be fully protected in relying
upon such Officer's Certificate until it is otherwise notified by the Issuer in
the form of a subsequent Officer's Certificate.
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"Holdings" means Willis Holdings Group Limited, an exempted
company under the Companies Act 1981 of Bermuda.
"ILS" means reinsurance related debt securities that are
underwritten and/or initially purchased for the purpose of placement with or
distribution to third parties.
"Indebtedness" of any Person means, without duplication,
------------
(1) all obligations of such Person for borrowed money or with respect
to deposits or advances of any kind,
(2) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments,
(3) all obligations of such Person upon which interest charges are
customarily paid,
(4) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person,
(5) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred
in the ordinary course of business),
(6) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed (the amount of
such Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof,
in respect of which such Lien is granted or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by the Person who granted such Lien in good faith),
(7) all guarantees by such Person of Indebtedness of others,
(8) all Capital Lease Obligations of such Person,
(9) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, and
(10) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of
any net obligation under any Swap Contract, to the extent otherwise
constituting Indebtedness, on any date shall be deemed to be the Swap
Termination Value thereof as of such date.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
13
"Interest Payment Date" means March 31, June 30, September 30 and
December 31 of each year to stated maturity.
"Investment" means, with respect to any Person, any investment by such
Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding
accounts receivable, trade credit, advances to customers, in each case made
in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities issued
by any other Person and investment that is required by GAAP to be
classified on the balance sheet (excluding the footnotes) of such Person in
the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property.
"Issue Date" means March 6, 2009.
"Issuer" means Trinity Acquisition Limited, a company
organized and operated under the laws of England and Wales.
"Issuer Order" means a written request or order signed on
behalf of the Issuer by an Officer of the Issuer.
"Laws" means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Legal Holiday" means a Saturday, a Sunday or a day on which
commercial banking institutions are not required to be open in the State of New
York, London, England, or the city in which the Corporate Trust Office of the
Trustee or Paying Agent is located.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement in
the nature of a security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, any easement, right of
way or other encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the foregoing).
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the business, financial position,
property or results of operations of Holdings and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Obligor to perform its
obligations under any Financing Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Obligor of any Financing Document to which it is a
party.
"Material Indebtedness" means Indebtedness (other than the
Notes) of any one or more of Holdings and its Subsidiaries in an aggregate
principal amount exceeding $30,000,000.00.
"Material Subsidiary" means any Subsidiary of Holdings whose
gross assets or Consolidated EBITDA are equal to or exceed 5% of the total gross
assets or Consolidated EBITDA, as applicable, of Holdings, in each case
determined on the basis of the most recently ended four fiscal quarters for
14
which financial statements have been (or are required to be) delivered to the
Holders in accordance with Section 4.02(a) or (b).
"Material Swap Obligations" means obligations in respect of
one or more Swap Contracts with an aggregate Swap Termination Value exceeding
$30,000,000.00.
"Merger" means the merger that occurred on October 1, 2008 of
Hilb Rogal & Hobbs Company, a Virginia corporation (the "Acquired Company") with
and into Hermes Acquisition Corp., a Virginia corporation (the "Acquisition
Subsidiary"), with the Acquisition Subsidiary being the surviving corporation,
pursuant to the Merger Agreement dated as of June 7, 2008 (the "Merger
Agreement") among Holdings, Acquisition Subsidiary, and Acquired Company.
"Moody's" means Moody's Investors Service, Inc. and any successor to
its rating agency business.
"Multiemployer Plan" means any employee benefit plan as
defined in Section 4001(a)(3) of ERISA, to which Holdings or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions (excluding any foreign
plans of Holdings or any of its ERISA Affiliates).
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by
Holdings or any of its Subsidiaries in respect of any Asset Sale, including any
cash received upon any Asset Sale, net of the direct costs relating to such
Asset Sale, including legal, accounting and investment banking fees, and
brokerage and sales commissions, any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of principal, premium, if any,
and interest on the Credit Facilities (or other Indebtedness that is secured by
any Permitted Liens if and to the extent the proceeds of an Asset Sale in
respect of the assets that are subject to such Permitted Liens are required to
be utilized to repay such Indebtedness) required (other than required by clause
(i) of Section 4.10(b) hereof) to be paid as a result of such transaction and
any deduction of appropriate amounts to be provided by Holdings or any of its
Subsidiaries as a reserve in accordance with GAAP against any liabilities
associated with the asset disposed of in such transaction and retained by
Holdings or any of its Subsidiaries after such sale or other disposition
thereof, including pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.
"Net Worth" means, as of any date, (1) the amount of total
assets of Holdings and its Subsidiaries minus (2) the amount of total
liabilities of Holdings and its Subsidiaries, in each case, that would be
reflected on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP.
"Non-Obligor" means any Subsidiary of Holdings that is not an
Obligor.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of February 10, 2009, by and among the Issuer, the Guarantors, GSMP V
15
Onshore International, Ltd., GSMP V Offshore International, Ltd., GSMP V
Institutional International, Ltd. and GS Mezzanine Partners V Institutional L.P.
"Notes" is defined in the Recitals.
"Obligations" means any principal, interest (including any
interest accruing subsequent to the filing of a petition in bankruptcy,
reorganization or similar proceeding at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable state, federal or foreign law), penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with
respect to letters of credit and banker's acceptances), damages and other
liabilities, and guarantees of payment of such principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities, payable
under the documentation governing any Indebtedness.
"Obligors" means the Issuer and the Guarantors.
"Officer" means the chairman of the board, the chief executive
officer, the chief financial officer, the chief responsible officer, the chief
operating officer, the president, any executive vice president, senior vice
president or vice president, the treasurer, the secretary or (in respect of any
Person organized under the laws of England and Wales) a director.
"Officer's Certificate" means a certificate signed on behalf
of the Issuer by an Officer of the Issuer.
"Opco Guarantor" means each Guarantor that is a Subsidiary of
Holdings that is not a Holding Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to any Obligor.
"Participant" means, with respect to the Depository, Euroclear
or Clearstream, a Person who has an account with the Depository, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(1) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 4.04;
(2) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business;
(3) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(4) deposits and other Liens (limited solely to Liens on
consideration owing under the contracts and other like
obligations the performance of which is secured thereby) to
secure the performance of bids, trade contracts, leases,
16
statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the
ordinary course of business;
(5) judgment liens in respect of judgments that do not
constitute an Event of Default under Section 6.01(e); and
(6) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising
in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct
of business of Holdings or any of its Subsidiaries;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(1) any Investment by Holdings or any of its Wholly-Owned
Subsidiaries in Holdings or any of the other Wholly-Owned
Subsidiaries of Holdings;
(2) any Investment in cash and Cash Equivalents;
(3) any Investment by Holdings or any of its Wholly-Owned
Subsidiaries in a Person that is engaged in a Similar Business so
long as:
(a) no Default or Event of Default shall have occurred
or be continuing or will result therefrom;
(b) after giving effect to such Investment, the Issuer
could incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Leverage Ratio test described
in Section 4.07(a) hereof;
(c) such Person is or becomes a Subsidiary of Holdings
on or prior to the consummation of such Investment, and at
least 90% of the outstanding Equity Interests of which
(other than directors' qualifying shares) shall at all times
be owned by Holdings or a Wholly-Owned Subsidiary of
Holdings;
(4) any Investment in securities or other assets not
constituting cash or Cash Equivalents and received in connection
with an Asset Sale made pursuant to the provisions of Section
4.10 hereof or any other disposition of assets not constituting
an Asset Sale;
(5) any Investment (a) existing on the Issue Date set forth
on Schedule 1.01(A) and (b) in Gras Savoye & Cie, France,
pursuant to "put" agreements and "call" agreements in place on
the Issue Date (without any amendment or modification of any such
agreement that would increase the required amount or price of
such Investment or would otherwise be materially adverse to the
interests of the Holders);
(6) any Investment acquired by Holdings or any of its
Subsidiaries:
(a) in exchange for any other Investment or accounts
receivable held by Holdings or any such Subsidiary in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such
other Investment or accounts receivable; or
17
(b) as a result of a foreclosure by Holdings or any of
its Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured
Investment in default;
(7) guarantees permitted by this Indenture;
(8) subject to compliance with applicable Law, loans and
advances to officers, directors and employees for reasonable and
customary business related travel expenses, moving expenses and
other similar expenses, in each case incurred in the ordinary
course of business consistent with past practices;
(9) Investments by WSI in any ILS in the ordinary course of
WSI's business in an aggregate amount not to exceed
$250,000,000.00 at any one time outstanding;
(10) any Investments by Holdings or any of its Subsidiaries
acquired in exchange for Capital Stock (other than Disqualified
Capital Stock) of Holdings; and
(11) other Investments not exceeding (i) $50,000,000.00 in
the aggregate for any fiscal year plus (ii) up to $25,000,000.00
of the amount available pursuant to clause (i) above for the
preceding fiscal year, but unused in such preceding fiscal year
(the amounts in clause (i) above being deemed to be utilized
first in any fiscal year prior to the utilization of any
carryover amount provided in this clause (ii)).
"Permitted Liens" means, with respect to any Person:
(1) Permitted Encumbrances;
(2) any Lien on any property or asset of Holdings or any of
its Subsidiaries existing on the date hereof and set forth in
Schedule 1.01(B) hereto; provided that (a) such Lien shall not
apply to any other property or asset of Holdings or any
Subsidiary and (b) such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof;
(3) any Lien existing on any property or asset prior to the
acquisition thereof by Holdings or any Subsidiary of Holdings
after the date hereof or existing on any property or asset of any
Person that becomes a Subsidiary of Holdings after the date
hereof prior to the time such Person becomes a Subsidiary of
Holdings; provided that (a) such Lien is not created in
contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary of Holdings, as the case may be, (b)
such Lien shall not apply to any other property or assets of
Holdings or any Subsidiary of Holdings, (c) such Lien shall
secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary of
Holdings, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof, and (d) such Liens secure only
Indebtedness permitted to be incurred pursuant to Section
4.07(b)(iii);
(4) Liens on fixed or capital assets acquired, constructed
or improved by Holdings or any of its Subsidiaries; provided that
(a) such security interests secure only Indebtedness incurred to
finance the acquisition, construction or improvement of such
fixed or capital assets (including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of
such assets) and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof,
(b) such security interests and the Indebtedness secured thereby
18
are incurred prior to or within 180 days after such acquisition
or the completion of such construction or improvement, (c) the
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets
and (d) such security interests shall not apply to any other
property or assets of Holdings or any Subsidiary of Holdings;
(5) charges or Liens in favor of a regulatory authority or a
third party, in each case, as contemplated by the rules or
regulations issued by a regulatory authority and with which the
applicable Person is required to comply in order to remain
licensed to conduct its business;
(6) Liens over credit balances created in favor of any bank
in order to facilitate the operation of bank accounts on a net
balance basis or in connection with any BACS facility used in the
ordinary course of business;
(7) Liens comprised by escrow arrangements entered into in
connection with assets sales, transfers or other dispositions
permitted by Section 4.10;
(8) Liens securing Indebtedness permitted to be incurred
pursuant to Section 4.07(b)(ix); provided that the total
Indebtedness so secured by Liens does not exceed $50,000,000.00
at any one time outstanding; and
(9) other Liens; provided that the sum of the aggregate
principal amount of obligations secured by such Liens, plus the
aggregate amount of Attributable Indebtedness in respect of Sale
and Lease-Back Transactions permitted by Section 4.11(c) shall
not, at any time, exceed 10% of Net Worth.
"Person" means any individual, corporation, limited liability
company, company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by Holdings
or any ERISA Affiliate or to which Holdings or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years (excluding any foreign
pension plans of Holdings or any of its ERISA Affiliates).
"Preferred Stock" means any Equity Interest with preferential
rights of payment of dividends or as to the distribution of assets upon
liquidation, dissolution, or winding up.
"Private Placement Legend" means the legend set forth in
Section 2.06(f)(i) hereof to be placed on all Notes issued under this Indenture,
except where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Agencies" means Moody's and S&P or if Moody's or S&P
or both shall not make a rating on the Notes publicly available, two or more
"nationally recognized statistical rating organizations" (as defined in Rule 436
under the Securities Act), selected by the Issuer or Holdings which shall be
substituted for Moody's or S&P or both, as the case may be.
19
"Record Date" for the interest payable on any applicable
Interest Payment Date means March 15, June 15, September 15 or December 15
(whether or not a Business Day) next preceding such Interest Payment Date.
"Refinancing" means the repayment of a portion of the
principal amount of the Existing Bridge Loan and the payment of related
transaction fees and expenses on the Issue Date with the proceeds of the
issuance of the Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the GSMP Group and the Obligors.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" permanent Global Note in the form
of Exhibit A hereto, bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depository or its nominee, that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903.
"Regulation S-X" means Regulation S-X promulgated under the
Securities Act as from time to time in effect and any successor regulation to
all or a portion thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than events for which the 30-day notice
requirement has been waived under the applicable regulations.
"Required Holders" means holders of at least a majority in
aggregate principal amount of the then outstanding Notes. Sections 2.08 and 2.09
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this definition.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day distribution compliance
period as defined in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
20
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., and any successor to its rating agency business.
"Sale and Lease-Back Transaction" means any arrangement
providing for the leasing by Holdings or any of its Subsidiaries of any real or
tangible personal property, which property has been or is to be sold or
transferred by Holdings or such Subsidiary to a third Person in contemplation of
such leasing.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of Holdings or
any of its Subsidiaries secured by a Lien permitted to be incurred in accordance
with Sections 4.07 and 4.08 hereof.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Similar Business" means any business conducted or proposed to
be conducted by Holdings and its Subsidiaries on the Issue Date or any business
that is similar, reasonably related, incidental or ancillary thereto.
"Stated Maturity" means, with respect to any installment of
interest on or principal of, or any other amount payable in respect of, any
series of Indebtedness, the date on which the payment of such interest,
principal or other amount was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest, principal or other amount prior
to the date originally scheduled for the payment thereof.
"Subordinated Indebtedness" means, with respect to the Notes,
(1) any Indebtedness of the Issuer which is by its terms
subordinated in right of payment to the Notes, and
(2) any Indebtedness of any Guarantor which is by its terms
subordinated in right of payment to the Guarantee of such entity of
the Notes.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association, or other business entity (other
than a partnership, joint venture, limited liability company or
similar entity) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time of determination owned or controlled,
directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof; and
(2) any partnership, joint venture, limited liability company or
similar entity of which:
(a) more than 50% of the capital accounts, distribution
rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled,
directly or indirectly, by such Person or one or more
21
of the other Subsidiaries of that Person or a combination
thereof whether in the form of membership, general, special
or limited partnership or otherwise, and
(b) such Person or any Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.
"Subsidiary Guarantor" means each Guarantor that is a Subsidiary
of the Issuer.
"Swap Contract" means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject
to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement; provided that no phantom stock or similar plan providing for payments
only on account of services provided by current or former directors, officers,
employees or consultants of Holdings and any of its Subsidiaries shall be a Swap
Contract.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the termination value(s) for
such Swap Contract, as determined in accordance therewith as if such Swap
Contract had been closed out on such date and each counterparty thereto were an
"Affected Party" (or similar term) thereunder.
"Tax" or "Taxes" means any present or future tax, levy,
impost, duty, assessment, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed and any penalties, interest or other liabilities with
respect thereto.
"Taxing Jurisdiction" means the United Kingdom or any other
jurisdiction in which an Obligor is organized, engaged in business, resident for
tax purposes or generally subject to tax on a net income basis, or any political
subdivision of any of the foregoing or any authority of or in any of the
foregoing having the power to tax.
"Transaction" means the transactions contemplated by the
issuance of the Notes.
"Treasury Rate" means, as of any Redemption Date, the yield to
maturity as of such Redemption Date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to the Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Redemption Date to September 1, 2013;
22
provided, however, that if the period from the Redemption Date to September 1,
2013, is less, than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be
used.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S.C. ss.ss. 77aaa-77bbbb).
"Trustee" means The Bank of New York Mellon, as trustee, until
a successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"U.S. Person" means a U.S. person as defined in Rule 902(k)
under the Securities Act.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent Global Note,
substantially in the form of Exhibit A attached hereto, as the case may be, that
bears the Global Note Legend and that has the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing Notes that
do not and are not required to bear the Private Placement Legend.
"VAT" means value added tax as provided in the United
Kingdom Value Added Tax Act 1994 and any other Tax of a similar nature.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any
date, the quotient obtained by dividing
(1) the sum of the products of the number of years from the date
of determination to the date of each successive scheduled principal
payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock or Preferred Stock multiplied by
the amount of such payment; by
(2) the sum of all such payments.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of
such Person, 100% of the outstanding Equity Interests of which (other than
directors' qualifying shares) shall at the time be owned by such Person or by
one or more Wholly-Owned Subsidiaries of such Person.
23
"WNA" means Willis North America Inc., a Delaware corporation,
and a direct or indirect Wholly-Owned Subsidiary of the Issuer.
"WSI" means Willis Securities, Inc., a Delaware corporation
and an indirect Wholly-Owned Subsidiary of the Issuer that is a licensed
broker-dealer.
Section 1.02 Other Definitions.
-----------------
Term Defined in
- ---- Section
-------
"Additional Amounts".......................................... 2.14
"Asset Sale Offer"............................................ 4.10
"Authentication Order"........................................ 2.02
"Change of Control Offer"..................................... 4.09
"Change of Control Payment"................................... 4.09
"Change of Control Payment Date".............................. 4.09
"Covenant Defeasance"......................................... 8.03
"DTC"......................................................... 2.03
"Event of Default"............................................ 6.01
"Excess Proceeds"............................................. 4.10
"Foreign Obligor"............................................. 12.02
"incur"....................................................... 4.07
"Legal Defeasance"............................................ 8.02
"Note Register"............................................... 2.03
"Offer Amount"................................................ 3.10
"Offer Period"................................................ 3.10
"Paying Agent"................................................ 2.03
"Process Agent"............................................... 12.02
"Purchase Date"............................................... 3.10
"Recipient" .................................................. 2.14
"Redemption Date"............................................. 3.07
"Refinancing Indebtedness".................................... 4.07
"Registrar"................................................... 2.03
"Relevant Party" ............................................. 2.14
"Restricted Payments"......................................... 4.12
"Successor Company"........................................... 5.01
"Successor Person"............................................ 5.01
"Supplier".................................................... 2.14
Section 1.03 Rules of Construction.
---------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
24
(d) words in the singular include the plural, and in the plural
include the singular;
(e) "will" shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time;
(h) unless the context otherwise requires, any reference to an
"Article," "Section" or "clause" refers to an Article, Section or clause, as the
case may be, of this Indenture;
(i) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not any particular
Article, Section, clause or other subdivision;
(j) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein);
(k) any reference herein to any Person shall be construed to
include such Person's successors and assigns; and
(l) the word "including" shall mean "including without
limitation.
Section 1.04 Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Issuer. Proof of execution of any such instrument or of a writing appointing any
such agent, or the holding by any Person of a Note, shall be sufficient for any
purpose of this Indenture and (subject to Section 7.01) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
25
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
(e) The Issuer may set a record date for purposes of determining
the identity of Holders entitled to give any request, demand, authorization,
direction, notice, consent, waiver or take any other act, or to vote or consent
to any action by vote or consent authorized or permitted to be given or taken by
Holders. Unless otherwise specified, if not set by the Issuer prior to the first
solicitation of a Holder made by any Person in respect of any such action, or in
the case of any such vote, prior to such vote, any such record date shall be the
later of 30 days prior to the first solicitation of such consent or the date of
the most recent list of Holders furnished to the Trustee prior to such
solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any
action hereunder with regard to any particular Note may do so with regard to all
or any part of the principal amount of such Note or by one or more duly
appointed agents, each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a Holder,
including DTC that is the Holder of a Global Note, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and DTC that is the Holder of a Global Note
may provide its proxy or proxies to the beneficial owners of interests in any
such Global Note through such Depository's standing instructions and customary
practices.
(h) The Issuer may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Note held by DTC entitled under the procedures of such Depository to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
Section 1.05 Legal Holiday.
-------------
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Note Purchase
Agreement) payment of interest or principal (and premium and any other amounts,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Stated Maturity, provided that no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, if payment is made
on such next succeeding Business Day.
26
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms.
----------------------
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rules or usage. Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples of $1,000.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified in the "Schedule of Exchanges of Interests in the
Global Note" attached thereto and each shall provide that it shall represent up
to the aggregate principal amount of Notes from time to time endorsed thereon
and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as applicable, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) [Reserved]
(d) Terms. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture may not exceed $500,000,000.00,
except as provided in Section 2.07 hereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuer, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
The Notes shall be subject to repurchase by the Issuer
pursuant to an Asset Sale Offer as provided in Section 4.10 hereof or a Change
of Control Offer as provided in Section 4.09 hereof. The Notes shall not be
redeemable, other than as provided in Article 3.
(e) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global Notes that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
----------------------------
At least one Officer shall execute the Notes on behalf of the
Issuer by manual or facsimile signature.
27
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose until authenticated substantially in
the form of Exhibit A attached hereto, as the case may be, by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been duly authenticated and delivered under this Indenture.
On the Issue Date, the Trustee shall, upon receipt of an Issuer
Order (an "Authentication Order"), authenticate and deliver the Notes.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuer.
Section 2.03 Registrar and Paying Agent.
--------------------------
The Issuer shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Issuer shall ensure that at all times at least one Paying Agent shall be located
in a Member State of the European Union (if any) that will not require
withholding or deduction of tax pursuant to European Council Directive
2003/48/EC on the taxation of savings income or any law implementing or
complying with, or introduced in order to conform to, such European Council
Directive. The Registrar shall keep a register of the Notes ("Note Register")
and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Issuer may change any Paying Agent or Registrar without prior
notice to any Holder. The Issuer shall notify the Trustee in writing of the name
and address of any Agent not a party to this Indenture. If the Issuer fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent
or Registrar.
The Issuer initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Paying
Agent and Registrar for the Notes and to act as Custodian with respect to the
Global Notes.
In addition, the Issuer initially appoints the Trustee (acting
through its London branch) to act as the UK Paying Agent for the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
-----------------------------------
The Issuer shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Notes, and will notify
the Trustee of any default by the Issuer in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Issuer at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than Holdings or any of its Subsidiaries) shall have no
further liability for the money. If Holdings or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
28
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Issuer, the Trustee may serve as
Paying Agent for the Notes.
Section 2.05 Holder 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 all Holders. If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee at least five Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes.
Section 2.06 Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Notes. Except as otherwise
set forth in this Section 2.06, a Global Note may be transferred, in whole and
not in part, only to another nominee of the Depository or to a successor
Depository or a nominee of such successor Depository. A beneficial interest in a
Global Note may not be exchanged for a Definitive Note unless (i) the Depository
(x) notifies the Issuer that it is unwilling or unable to continue as Depository
for such Global Note or (y) has ceased to be a clearing agency registered under
the Exchange Act and, in either case, a successor Depository is not appointed by
the Issuer within 120 days, (ii) the Issuer, at its option, notifies the Trustee
in writing that it elects to cause the issuance of the Definitive Notes or (iii)
there shall have occurred and be continuing a Default or Event of Default with
respect to the Notes. Upon the occurrence of any of the preceding events in
subsection (i), (ii) or (iii) above, Definitive Notes delivered in exchange for
any Global Note or beneficial interests therein will be registered in the names,
and issued in any approved denominations, requested by or on behalf of the
Depository (in accordance with its customary procedures). Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note, except for Definitive Notes issued subsequent
to any of the preceding events in subsection (i), (ii) or (iii) above and
pursuant to Section 2.06(c) hereof. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a); provided, however,
that beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depository, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i); except to the
extent the customary procedures of the Registrar require any such written
instrument in connection with such transfer.
29
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and exchanges
of beneficial interests that are not subject to Section 2.06(b)(i) hereof,
the transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depository in accordance with the Applicable Procedures directing the
Depository to cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depository to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) hereof and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of
a beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof; or
(B) if the transferee will take delivery in the form of
a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged
by any holder thereof for a beneficial interest in an Unrestricted Global
Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) hereof and
the Registrar receives the following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note of the same series, a
certificate from such Holder substantially in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note of the same series, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
30
and, in each such case set forth in this subclause (iv), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to this subsection
(iv) at a time when an Unrestricted Global Note has not yet been issued, the
Issuer shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to this
subsection (iv).
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Note, then, upon the occurrence of any of the events in clause (i) or (ii)
of Section 2.06(a) hereof and receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note, a certificate from such holder
substantially in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof; or
(E) if such beneficial interest is being transferred to
the Issuer, or any Guarantor or any of their Subsidiaries, a
certificate substantially in the form of Exhibit B hereto, including
the certifications in item (3)(b) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the applicable
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
31
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depository and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) [Reserved].
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only upon the occurrence of any of the events in
subsection (i) or (ii) of Section 2.06(a) hereof and if the Registrar
receives the following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate from
such holder substantially in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such
holder substantially in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subsection (iii), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon the occurrence of any of the events in subsection (i)
or (ii) of Section 2.06(a) hereof and satisfaction of the conditions
set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(g) hereof, and the Issuer shall
execute and the Trustee shall authenticate and mail to the Person
designated in the instructions a Definitive Note in the applicable
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from or through the
Depositary and the Participant or Indirect Participant. The Trustee
shall mail such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv) shall not
bear the Private Placement Legend.
32
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder substantially in the form of
Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (3)(a)
thereof; or
(E) if such Restricted Definitive Note is being transferred
to the Issuer or any Guarantor or any of their Subsidiaries, a certificate
substantially in the form of Exhibit B hereto, including the certifications
in item (3)(b) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the applicable Restricted Global Note, in the case of clause (B) above, the
applicable 144A Global Note, and in the case of clause (C) above, the applicable
Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note only if the
Registrar receives the following:
(A) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder substantially in the
form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or
(B) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder substantially in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
33
and, in each such case set forth in this subclause (ii), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subsection (ii)(A), (ii)(B) or (iii)
of this Section 2.06(d) at a time when an Unrestricted Global Note has not yet
been issued, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e):
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to
a QIB in accordance with Rule 144A, then the transferor must
deliver a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904 then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; or
(C) if the transfer will be made pursuant to
any other exemption from the registration requirements of
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
34
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if the Registrar receives the following:
(A) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder substantially in the
form of Exhibit C hereto, including the certifications in item (1)(d)
thereof; or
(B) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder substantially in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subsection (ii), if the Registrar
so requests, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register such a
transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture:
(i) Private Placement Legend. Each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
35
IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.06(g) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE
PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(g) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
36
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depository at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance with
Section 2.02 hereof or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Issuer 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 exchange or transfer pursuant to
Sections 2.07, 2.10, 3.06, 3.10, 4.09, 4.10 and 9.04 hereof).
(iii) Neither the Registrar nor the Issuer shall be required to
register the transfer of or exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed
in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Issuer shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a Record Date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Issuer may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of (and premium, if
any) and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuer shall be affected by notice to the
contrary.
(vii) Upon surrender for registration of transfer of any Note at
the office or agency of the Issuer designated pursuant to Section 4.13
hereof, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more replacement Notes of any authorized denomination or denominations of a
like aggregate principal amount.
37
(viii) At the option of the Holder, Notes may be exchanged for
other Notes of any authorized denomination or denominations of a like
aggregate principal amount upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Global Notes or Definitive Notes are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the replacement Global Notes and Definitive Notes
which the Holder making the exchange is entitled to in accordance with the
provisions of Section 2.02 hereof.
(ix) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depository participants or beneficial owners of interests in any
Definitive Note or Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
Section 2.07 Replacement Notes.
-----------------
If any mutilated Note is surrendered to the Trustee, the
Registrar or the Issuer and the Trustee receives evidence to its satisfaction of
the ownership and destruction, loss or theft of any Note, the Issuer shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Issuer, a security or an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Trustee and the Issuer to
protect the Issuer, the Trustee, any Agent and any authenticating agent from any
loss that any of them may suffer if a Note is replaced. The Issuer may charge
for its expenses in replacing a Note.
Every replacement Note is a contractual obligation of the
Issuer and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
In case any such mutilated, destroyed, lost or wrongfully
taken Note has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such a Note.
Section 2.08 Outstanding Notes.
-----------------
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section 2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Issuer or an
Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
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If the Paying Agent (other than the Issuer, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
--------------
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuer, or by any Affiliate of the Issuer, shall be considered as though
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to deliver any such direction, waiver or consent with respect to
the Notes and that the pledgee is not the Issuer or any obligor upon the Notes
or any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes.
---------------
Until certificates representing Notes are ready for delivery,
the Issuer may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Issuer considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders and Beneficial Owners, as the case may be, of
temporary Notes shall be entitled to all of the benefits accorded to Holders, or
beneficial owners, respectively, of Notes under this Indenture.
Section 2.11 Cancellation.
------------
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee or the Registrar or the Paying Agent and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall dispose of such cancelled Notes in accordance with its
customary procedures (subject to the record retention requirement of the
Exchange Act). Certification of the destruction of all cancelled Notes shall be
delivered to the Issuer. The Issuer may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
------------------
If an Event of Default has occurred and is continuing, the
Issuer shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 6.03 hereof. The Issuer shall notify the Trustee in
an Officer's Certificate of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment, and at the same time the
Issuer shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
39
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such defaulted interest as provided in this
Section 2.12. The Trustee shall fix or cause to be fixed each such special
record date and payment date; provided that no such special record date shall be
less than 10 days prior to the related payment date for such defaulted interest.
The Trustee shall promptly notify the Issuer of such special record date. At
least 15 days before the special record date, the Issuer (or, upon the written
request of the Issuer, the Trustee in the name and at the expense of the Issuer)
shall deliver or cause to be delivered, to each Holder a notice at his or her
address as it appears in the Note Register that states the special record date,
the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and
for greater certainty, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
Section 2.13 CUSIP Numbers.
-------------
The Issuer in issuing the Notes may use CUSIP numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will as promptly as practicable notify the
Trustee of any change in the CUSIP numbers.
Section 2.14 Tax.
---
(a) Withholding.
-----------
All payments under or in respect of the Notes by any Obligor
shall be made without withholding or deduction for or on account of any present
or future Taxes of whatever nature imposed, levied or assessed by or on behalf
of any Taxing Jurisdiction or any other jurisdiction (or any political
subdivision thereof or any authority thereof or therein having the power to tax)
from or through which payments are made, unless such withholding or deduction is
required by law. In such event, the Obligor shall pay such additional amounts
("Additional Amounts") as shall be necessary in order that the net amounts
received by the Holders and beneficial owners of the Notes after such
withholding or deduction shall equal the respective amounts which would
otherwise have been receivable in respect of the Notes in the absence of such
withholding or deduction; except that no such Additional Amounts shall be
payable with respect to a payment made to a Holder or beneficial owner of a
Note:
(i) to the extent that such Taxes would not have been so
imposed, levied or assessed but for the existence of some connection
between such Holder or beneficial owner of such Note and the Taxing
Jurisdiction imposing such Taxes other than the mere holding of such
Note; or
(ii) to the extent that such Taxes would not have been so
imposed, levied or assessed but for the failure of the Holder or
beneficial owner of such Note to make a declaration of non-residence
or any other claim or filing for exemption to which it is entitled ;
or
(iii) presented for payment more than 10 days after the date
on which such payment became due and payable or the date on which
payment of the Note is duly provided for and notice is given to
Holders, whichever occurs later, except to the extent that the Holder
40
or beneficial owner of such Note would have been entitled to such
Additional Amounts on presenting such Note on any date during such
10-day period; or
(iv) where such withholding or deduction is imposed on a
payment to or for an individual and is required to be made pursuant to
Council Directive 2003/48/EC or any law implementing or complying
with, or introduced in order to conform to, such Directive; or
(v) presented for payment by or on behalf of the Holder of
such Note to any Paying Agent if such withholding or deduction of such
Taxes could have been avoided by presenting such Note to another
Paying Agent in a member state of the European Union; or
(vi) any combination of clauses (i) through (v) above,
save that none of the exceptions listed above in clauses (i) through
(vi) shall apply in any case where the relevant withholding or
deduction of Taxes is required as a result of a breach by the Issuer of
any of its covenants in Section 4.16 hereof.
The Issuer shall make or cause to be made any applicable
withholding or deduction and remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law. The Issuer will furnish to
the Holders, within 30 days after the date the payment of any Taxes deducted or
withheld is due pursuant to applicable law, certified copies of tax receipts
evidencing payment of such Taxes or, if such tax receipts are not reasonably
available to the Issuer, other documentation reasonably evidencing such payment
of such Taxes. Copies of such receipts or other documentation will be made
available to the Trustee or the Holders upon request.
Whenever in this Indenture there is mentioned, in any context,
the payment of principal, premium, if any, interest or of any other amount
payable under or with respect to any Note, such mention shall be deemed to
include mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
The foregoing obligations relating to Additional Amounts shall
survive any termination, defeasance or discharge of the Indenture.
(b) Tax indemnity.
(i) Except as provided by paragraph (ii) below, the
Obligors shall (within five Business Days of written demand to the
Issuer by any Holder) indemnify a Holder of a Note against any loss,
liability or cost which such Holder or the beneficial owner of such
Notes has (directly or indirectly) suffered for or on account of Tax
in respect of a Financing Document.
(ii) Paragraph (i) above shall not apply and no other
provision in the Financing Documents shall apply to compensate or
otherwise indemnify a Holder or beneficial owner of a Note:
(A) with respect to any Tax assessed on such
Holder or beneficial owner under the laws of the jurisdiction or
jurisdictions in which: (x) that Holder or beneficial owner is
incorporated and, if different, the jurisdiction (or
jurisdictions) in which that Holder or beneficial owner is
treated as resident for tax purposes; or (y) that Holder or
beneficial owner is located in respect of amounts received or
receivable in that jurisdiction;
41
(B) if that Tax is imposed on or calculated
by reference to the overall net income received or receivable by
that Holder or beneficial owner. Any sum deemed to be received or
receivable, including, for the avoidance of doubt, any amount
treated as income but not actually received by the Holder or
beneficial owner (such as a Tax Deduction), is not income
received or receivable for this purpose; or
(C) if and to the extent that a loss,
liability or cost is compensated for by an increased payment
pursuant to Section 2.14(a) hereof.
(iii) A Holder making, or intending to make, a claim
under paragraph (i) above shall promptly notify the Issuer in writing
of the event which will give, or has given, rise to the claim.
(iv) A Holder shall, on receiving a payment from an
Obligor under paragraph (i) above, notify the Trustee in writing.
(v) Notwithstanding the foregoing provisions of this
Section 2.14(b):
(A) no Holder or beneficial owner of a Note
shall be entitled to make any claim under this Section 2.14(b) in
respect of losses if such Holder does not notify the Issuer in
writing of its intention to claim pursuant to this Section
2.14(b) within ninety days after the date on which such Holder or
its Parent or any of its Subsidiaries becomes aware of the
relevant losses; and
(B) no Holder or beneficial owner of a Note
shall be entitled to make any claim pursuant to this Section
2.14(b) in respect of any losses on any date falling after the
discharge of all obligations and liabilities of the Obligors
hereunder and termination of this Agreement.
The Obligors, jointly and severally, covenant to indemnify each
of the Trustee and any Paying Agent for, and to hold each of them harmless
against, any loss, liability or expense which either of them has suffered in its
capacity as Trustee or Paying Agent, as applicable, for or on account of any Tax
(including any stamp duty) arising in connection with the Notes or this
Indenture, except to the extent that any such loss, liability or expense is due
to the negligence or bad faith of the Trustee or Paying Agent.
(c) Stamp Taxes.
-----------
The Issuer shall pay and, within five Business Days of written
demand by any Holder, indemnify each Holder and beneficial owner of a Note
against any cost, loss or liability that Holder or beneficial owner of a Note
incurs in relation to any stamp duty, stamp duty reserve, documentary,
registration and any other similar Tax payable in connection with or in relation
to any Financing Document.
(d) VAT.
---
(i) All fees and other consideration expressed to be payable
under a Financing Document shall (except where otherwise agreed) be
deemed to be exclusive of any VAT. If VAT is chargeable on any supply
made to any Person in connection with or under a Financing Document,
that Person shall pay (in addition to and at the same time as paying
the consideration for that supply) an amount equal to the amount of
the VAT, and provided that such Person has first been provided with an
appropriate valid VAT invoice.
42
(ii) Where a Financing Document requires any Person to reimburse
another Person for any costs or expenses, the Person making such
reimbursement shall also at the same time pay and indemnify the other
Person against any VAT incurred in respect of the costs or expenses to
the extent that the Person receiving the reimbursement determines in
its sole discretion (acting reasonably) that neither it nor any other
member of any group of which it is a member for VAT purposes is
entitled to credit for or repayment of the VAT or an amount equal to
the VAT.
(iii) If VAT is chargeable on any supply made by any Holder,
beneficial owner of a Note, Agent or Trustee (the "Supplier") to any
other Holder, beneficial owner of a Note, Agent or Trustee (the
"Recipient") under a Financing Document, and any party to this
Indenture (the "Relevant Party") is required by the terms of any
Financing Document to pay an amount equal to the consideration for
such supply to the Supplier (rather than being required to reimburse
the Recipient in respect of that consideration), such Person shall
(except where otherwise agreed) also pay to the Supplier (in addition
to and at the same time as paying such amount) an amount equal to the
amount of such VAT. The Recipient will promptly pay to the Relevant
Party an amount equal to any credit or repayment from the relevant tax
authority (whether such credit or repayment is obtained by the
Recipient or any other member of any group of which it is a member for
VAT purposes) which it reasonably determines relates to the VAT
chargeable on that supply.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
------------------
If the Issuer elects to redeem Notes pursuant to Section 3.07
hereof, it shall furnish to the Trustee, at least 15 days before notice of
redemption is required to be delivered or caused to be delivered to Holders
pursuant to Section 3.03 hereof but not more than 60 days before a redemption
date, an Officer's Certificate setting forth (a) the paragraph or subparagraph
of such Note and/or Section of this Indenture pursuant to which the redemption
shall occur, (b) the redemption date, (c) the principal amount of the Notes to
be redeemed and (d) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
----------------------------------------------
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased in accordance with applicable procedures of the Depository
and (a) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange
on which the Notes are listed or (b) on a pro rata basis or, to the extent that
selection on a pro rata basis is not practicable, by lot or by such other method
the Trustee considers fair and appropriate. In the event of partial redemption
or purchase by lot, the particular Notes to be redeemed or purchased shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer in writing of the
Notes selected for redemption or purchase and, in the case of any Note selected
for partial redemption or purchase, the principal amount thereof to be redeemed
or purchased. Notes and portions of Notes selected shall be in amounts of $2,000
or whole multiples of $1,000; no Notes of less than $1,000 can be redeemed in
part, except that if all of the Notes of a Holder are to be redeemed or
purchased, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed or purchased. Except as provided in
43
the preceding sentence, provisions of this Indenture that apply to Notes called
for redemption or purchase also apply to portions of Notes called for redemption
or purchase.
Section 3.03 Notice of Redemption.
--------------------
Subject to Section 3.10 hereof, the Issuer shall deliver or
cause to be delivered by electronic transmission or by first-class mail notices
of redemption at least 30 days but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at such Holder's registered address,
except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Article 8 or Article
11 hereof.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of
the principal amount of that Note that is to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion of the original Note representing the
same indebtedness to the extent not redeemed will be issued in the name of the
Holder of the Notes upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph or subparagraph of the Notes and/or Section
of this Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense; provided that the Issuer
shall have delivered to the Trustee, at least 15 days before notice of
redemption is required to be delivered or caused to be delivered to Holders
pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the
Trustee), an Officer's Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is delivered in accordance with
Section 3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. The notice, if delivered
in a manner herein provided, shall be conclusively presumed to have been given,
whether or not the Holder receives such notice. In any case, failure to give
such notice by electronic transmission or by mail or any defect in the notice to
44
the Holder of any Note designated for redemption in whole or in part shall not
affect the validity of the proceedings for the redemption of any other Note.
Subject to Section 3.05 hereof, on and after the redemption date, interest
ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
---------------------------------------
Prior to 10:00 a.m. (New York City time) on the redemption or
purchase date, the Issuer shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption or purchase price of and accrued
and unpaid interest on all Notes to be redeemed or purchased on that date. The
Trustee or the Paying Agent shall promptly return to the Issuer any money
deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the redemption price of, and accrued and unpaid
interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption or purchase.
If a Note is redeemed or purchased on or after a Record Date but on or prior to
the related Interest Payment Date, then any accrued and unpaid interest to the
redemption or purchase date shall be paid to the Person in whose name such Note
was registered at the close of business on such Record Date. If any Note called
for redemption or purchase shall not be so paid upon surrender for redemption or
purchase because of the failure of the Issuer to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and to the extent lawful on any
interest accrued to the redemption or purchase date not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
-----------------------------------
Upon surrender of a Note that is redeemed or purchased in
part, the Issuer shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate for the Holder at the expense of the Issuer a new Note
equal in principal amount to the unredeemed or unpurchased portion of the Note
surrendered representing the same indebtedness to the extent not redeemed or
purchased; provided that each new Note will be in a minimum principal amount of
$2,000 or an integral multiple of $1,000.
Section 3.07 Optional Redemption.
-------------------
(a) At any time prior to September 1, 2013, the Issuer may
redeem all or part of the Notes, upon not less than 30 nor more than 60 days'
prior notice delivered electronically or by first-class mail, with a copy to the
Trustee, to the registered address of each Holder or otherwise delivered in
accordance with the Applicable Procedures, at a redemption price equal to 100%
of the principal amount of Notes redeemed plus the Applicable Premium as of,
plus accrued and unpaid interest thereon to the date of redemption (the
"Redemption Date"), subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date. The
Trustee shall not be responsible for determining the Applicable Premium.
(b) Except pursuant to clause (a) of this Section 3.07
or pursuant to Section 3.09, the Notes will not be redeemable at the Issuer's
option prior to September 1, 2013.
(c) On and after September 1, 2013, the Issuer may redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days'
prior notice delivered electronically or by first-class mail, postage prepaid,
with a copy to the Trustee, to each Holder of Notes at the address of such
Holder appearing in the security register, at the redemption prices (expressed
as percentages of principal amount of the Notes to be redeemed, plus accrued and
unpaid interest thereon to the applicable Redemption Date) set forth below,
45
subject to the right of Holders of Notes of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date, if redeemed
during the twelve-month period beginning on September 1 of each of the years
indicated below:
Year Percentage
------------------------------------------ -----------
2013...................................... 106.43750%
2014...................................... 104.29167%
2015...................................... 102.14583%
2016 and thereafter....................... 100.00000%
(d)......Any redemption pursuant to this Section 3.07 shall
be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. In
addition, each redemption pursuant to this Section 3.07 shall relate to an
aggregate principal amount of Notes of at least the lesser of (i) $5,000,000.00
and (ii) the remaining outstanding principal amount of the Notes.
Section 3.08 Early Redemption for Tax Reasons
--------------------------------
(a) The Notes may be redeemed at the option of the Issuer in
whole, but not in part, at any time upon not less than 30 nor more than 60 days'
prior notice delivered electronically or by first-class mail, with a copy to the
Trustee, to the registered address of each Holder or otherwise delivered in
accordance with the Applicable Procedures, if:
(i) on the occasion of the next payment due under the
Notes, the Issuer has or will become obliged to pay Additional Amounts
as a result of any change in, or amendment to, the laws or regulations
of the United Kingdom or any political subdivision of, or any
authority in, or of, the United Kingdom having the power to tax, or
any change in the official application or official interpretation of
such laws or regulations, which change or amendment is announced and
becomes effective on or after the Issue Date; and
(ii) such obligation cannot be avoided by the Issuer
taking reasonable measures available to it, including without
limitation, by the Issuer's compliance with the covenants contained in
Section 4.16(a) hereof;
provided that no such notice of redemption shall be given earlier than
90 days prior to the earliest date on which the Issuer would be
obliged to pay such Additional Amounts were a payment in respect of
the Notes then due.
(b) Prior to the publication of any notice of redemption
pursuant to this Section 3.08, the Issuer shall deliver to the Trustee an
Officer's Certificate of the Issuer stating that the Issuer is entitled to
effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Issuer so to redeem have occurred, and
a customary opinion in a form satisfactory to the Trustee (and during any period
which is a Holding Period, the Required Holders) of independent legal advisers
of recognized standing to the effect that the Issuer has or will become obliged
to pay such Additional Amounts as a result of such change or amendment and that
the Issuer cannot avoid the payment of such Additional Amounts by taking
reasonably measures available to it. The Trustee shall be entitled to accept
such certificate and opinion as sufficient evidence of the satisfaction of the
conditions precedent set out above in which event they shall be conclusive and
binding on the Holders of Notes. The Obligors, jointly and severally, covenant
to indemnify each of the Trustee and any Paying Agent for, and to hold each of
them harmless against, any loss, liability or expense arising out of or in
connection with actions taken or omitted by any of them in reliance on any
46
Officer's Certificate furnished pursuant to this Section, except to the extent
that any such loss, liability or expense is due to the negligence or bad faith
of the Trustee or Paying Agent.
(c) Notes redeemed pursuant to this Section 3.08 will be
redeemed at a redemption price equal to 100% of the principal amount of Notes
redeemed plus accrued and unpaid interest thereon to the date of redemption.
Section 3.09 Mandatory Redemption.
--------------------
The Issuer shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes.
Section 3.10 Offers to Repurchase by Application of Excess Proceeds.
------------------------------------------------------
(a) In the event that, pursuant to Section 4.10 hereof, the
Issuer shall be required to commence an Asset Sale Offer, it shall follow the
procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of
20 Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Issuer shall apply all Excess Proceeds (the "Offer
Amount") to the purchase of Notes, or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale Offer. Payment for
any Notes so purchased shall be made in the same manner as interest payments are
made.
(c) If the Purchase Date is on or after a Record Date and on
or before the related Interest Payment Date, any accrued and unpaid interest up
to but excluding the Purchase Date, shall be paid to the Person in whose name a
Note is registered at the close of business on such Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to the
Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer
shall deliver electronically or by first-class mail, a notice to each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to
this Section 3.10 and Section 4.10 hereof and the length of time the
Asset Sale Offer shall remain open;
(ii) the Offer Amount, the purchase price and the
Purchase Date;
(iii) that any Note not tendered or accepted for
payment shall continue to accrue interest;
(iv) that, unless the Issuer defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
47
(vi) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase"
attached to the Note completed, or transfer by book-entry transfer, to
the Issuer, the Depository, if appointed by the Issuer, or a Paying
Agent at the address specified in the notice at least three days
before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their
election if the Issuer, the Depository or the Paying Agent, as the
case may be, receives, not later than the expiration of the Offer
Period, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes
surrendered by the Holders thereof exceeds the Offer Amount, the
Trustee shall select the Notes to be purchased on a pro rata basis
based on the accreted value or principal amount of the Notes tendered
(with such adjustments as may be deemed appropriate by the Trustee so
that only Notes in denominations of $2,000, or an integral multiple of
$1,000, shall be purchased); and
(ix) that Holders whose Notes were purchased only in
part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer) representing the same indebtedness to the extent
not repurchased.
(e) On or before the Purchase Date, the Issuer shall, to
the extent lawful, (i) accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof validly tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered and (ii) deliver or cause to be delivered to the
Trustee the Notes properly accepted together with an Officer's Certificate
stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuer, the Depository or the Paying Agent, as the
case may be, shall promptly mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes properly tendered by such Holder and
accepted by the Issuer for purchase, and the Issuer shall promptly issue a new
Note, and the Trustee, upon receipt of an Authentication Order, shall
authenticate and mail or deliver (or cause to be transferred by book-entry) such
new Note to such Holder in a principal amount equal to any unpurchased portion
of the Note surrendered representing the same indebtedness to the extent not
repurchased; provided, that each such new Note shall be in a principal amount of
$2,000 or an integral multiple of $1,000. Any Note not so accepted shall be
promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer
shall announce to the Holders and the Trustee the results of the Asset Sale
Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.10 or
Section 4.10 hereof, any purchase pursuant to this Section 3.10 shall be made
pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.
48
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
----------------
The Issuer shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than Holdings or
any of its Subsidiaries, holds as of 10:00 A.M. Eastern Time on the due date
money deposited by the Issuer in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer shall pay interest on overdue principal (including
post-petition interest in any proceeding under any Bankruptcy Law) and on
overdue installments of interest, to the extent lawful, as provided in Section
6.03 hereof.
Section 4.02 Reports and Other Information.
-----------------------------
Holdings will furnish to the Trustee and to the Holders:
(a) as soon as available and in any event within 120 days
(or, if earlier, the date that is 15 days after the reporting date for such
information required by the SEC) after the end of each fiscal year of Holdings,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by Deloitte & Touche LLP or other independent public accountants
of recognized national standing to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of Holdings and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) as soon as available and in any event within 60 days
(or, if earlier, the date that is 15 days after the reporting date for such
information required by the SEC) after the end of each of the first three fiscal
quarters of each fiscal year of Holdings, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by a Financial Officer of
Holdings as presenting fairly in all material respects the financial condition
and results of operations of Holdings and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) for so long as any of the Notes remain outstanding and
constitute "restricted securities" within the meaning of Rule 144(a)(3) under
the Securities Act, Holdings and its Subsidiaries will make available at their
expense, upon request, to the Holders, and any prospective purchasers thereof,
the information specified in Rule 144A(d)(4) under the Securities Act, unless
Holdings is then subject to Section 13 or 15(d) of the Exchange Act.
Documents required to be delivered pursuant to Section 4.02(a)
or (b) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered within
the time frames set forth in such Sections, shall be deemed to have been
delivered on the date (i) on which Holdings or the Issuer posts such documents,
or provides a link thereto on Holdings' or the Issuer's website on the Internet
at the website address listed on Schedule 4.02; or (ii) on which such documents
are posted on Holdings' or the Issuer's behalf on an Internet website; provided
49
that: (i) Holdings or the Issuer, as applicable, shall deliver paper copies of
such documents to the Trustee or any Holder upon the written request of such
Person and until a written request to cease delivering paper copies is given by
such Person and (ii) Holdings or the Issuer, as applicable, shall notify the
Trustee and each Holder (by telecopier or electronic mail) of the posting of any
such documents and provide to the Trustee and each Holder by electronic mail
electronic versions (i.e., soft copies) of such documents. The Trustee shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by Holdings or the Issuer with any such request for delivery,
and each Holder shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents; provided, further, that delivery of
all of the above-described reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder.
The Issuer will deliver to the Trustee and the Holders, within
120 days after the end of each fiscal year of the Issuer ending after the date
hereof, a certificate signed by the principal executive officer, principal
financial officer, or principal accounting officer of the Issuer stating whether
or not to the knowledge of such person after due inquiry the Issuer is in
default in the performance and observance of any of the terms, provisions, and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Issuer is in default,
specifying all such defaults and the nature and status thereof of which such
person may have such knowledge. The Issuer shall promptly notify the Trustee
following its knowledge of an Event of Default or Default under the Indenture,
and in any event within 5 Business Days of such knowledge.
Section 4.03 Corporate Existence; Conduct of Business.
----------------------------------------
(a) Subject to Article 5 hereof, Holdings will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Article 5; provided,
further, that Holdings shall not be required to preserve any such right,
license, permit, privilege or franchise, or the legal existence of any
Subsidiary (subject to compliance with this Indenture, including Article 5), if
the Board of Directors of Holdings shall determine in good faith that the
preservation of such existence is no longer necessary or desirable in the
conduct of the business of Holdings, and that the loss thereof is not, and will
not be, disadvantageous to the Holders.
(b) Holdings will, and will cause each of its Subsidiaries
to, continue to engage (including after giving effect to any acquisition) only
in a business of the type that does not represent a fundamental change in the
character of the business of Holdings and its Subsidiaries, taken as a whole,
conducted by Holdings and its Subsidiaries on the date of execution of this
Indenture, and businesses reasonably related thereto.
(c) The Issuer shall maintain its status as a public limited
company as defined in the Companies Act 2006.
Section 4.04 Taxes.
-----
During any Holding Period, Holdings will, and will cause each
of its Subsidiaries to, pay its tax liabilities before the same shall become
50
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings and for which Holdings
or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP, or (b) the failure to make payment would not
reasonably be expected to result in a Material Adverse Effect.
Section 4.05 Maintenance of Properties; Insurance.
------------------------------------
During any Holding Period, Holdings will, and will cause each
of its Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain in full force and effect, with insurance
companies that Holdings and the Issuer believe (in good faith judgment of the
management of Holdings and the Issuer) are financially sound and responsible at
the time the relevant coverage is placed or renewed, insurance, in at least such
amounts and against at least such risks (and with such risk retentions) as are
usually insured against in the same general area by companies engaged in the
same or a similar business.
Section 4.06 Compliance with Laws.
--------------------
During any Holding Period, Holdings will, and will cause each
of its Subsidiaries to, comply with all Laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
Section 4.07 Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock.
--------------------------------------
(a) Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect, contingently or
otherwise (collectively, "incur" and collectively, an "incurrence"), to any
Indebtedness (including Acquired Indebtedness) and Holdings shall not issue any
shares of Disqualified Stock and shall not permit any of its Subsidiaries to
issue any shares of Preferred Stock; provided, however, that the Obligors may
incur Indebtedness (including Acquired Guarantor Indebtedness) or issue shares
of Disqualified Stock or Preferred Stock, as applicable, if the Consolidated
Leverage Ratio on a consolidated basis for Holdings and its Subsidiaries would
have been less than 4.00 to 1.00, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had
been issued.
(b) The provisions of Section 4.07(a) hereof shall not apply
to:
(i) the incurrence by an Obligor of Indebtedness under
the Credit Facilities and the issuance and creation of letters of
credit thereunder (with letters of credit being deemed to have a
principal amount equal to the face amount thereof), up to an aggregate
principal amount of $1.0 billion outstanding at any one time, less the
aggregate amount of amortization and mandatory principal payments
(excluding repayments of any revolving facility thereunder that do not
result in a permanent reduction or cancellation of such revolving
facility) actually made by an Obligor in respect of such Indebtedness;
(ii) the Indebtedness of an Obligor under the Existing
Notes and the Indebtedness of an Obligor under the Existing Bridge
Loan immediately following the Refinancing, in each case less the
aggregate amount of amortization and mandatory or voluntary principal
payments actually made by such Obligor thereunder after the Issue
Date;
51
(iii) Indebtedness of any Person that becomes a
Subsidiary of Holdings after the date hereof; provided that such
Indebtedness exists at the time such Person becomes a Subsidiary of
Holdings and is not created in contemplation of or in connection with
such Person becoming a Subsidiary of Holdings; provided, further, that
the aggregate principal amount of Indebtedness permitted to exist by
this clause (iii) shall not exceed $25,000,000.00 at any time
outstanding;
(iv) Indebtedness incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (x) such
Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and
(y) the aggregate principal amount of Indebtedness permitted by this
clause (iv) shall not exceed $25,000,000.00 at any time outstanding;
(v) Indebtedness incurred in relation to arrangements
made in the ordinary course of business to facilitate the operation of
bank accounts on a net balance basis;
(vi) short term Indebtedness from banks incurred in the
ordinary course of business pursuant to a facility required in order
to comply with rules and regulations issued from time to time by
regulatory authorities; provided that such compliance is required for
Holdings or a Subsidiary of Holdings, as applicable, to remain
licensed to conduct its business;
(vii) Indebtedness of Holdings or any of its
Wholly-Owned Subsidiaries to Holdings or any of its Wholly-Owned
Subsidiaries; provided that any such Indebtedness (except for
Indebtedness represented by any guarantee provided by Holdings in
favor of a Wholly-Owned Subsidiary in respect of Indebtedness of
another Wholly-Owned Subsidiary the subordination of which would be
prohibited by the FSA or the UK Pensions Trustee) that is owed by an
Obligor to a Non-Obligor in excess of $100,000,000.00 in the aggregate
shall be subordinated pursuant a subordination agreement in the form
attached hereto as Exhibit F or on terms reasonably satisfactory to
the Required Holders; provided, further, that any subsequent transfer
of any such Indebtedness (except to Holdings or any of its
Wholly-Owned Subsidiaries) shall be deemed, in each case, to be an
incurrence of such Indebtedness that was not permitted by this clause
(vii);
(viii) the incurrence by an Obligor of Indebtedness
or Disqualified Stock that serves to extend, refund, refinance, renew,
replace or defease any Indebtedness or Disqualified Stock incurred as
permitted under Section 4.07(a) hereof, this clause (viii) or any
Indebtedness or Disqualified Stock issued to so refund or refinance
such Indebtedness or Disqualified Stock, including additional
Indebtedness or Disqualified Stock incurred to pay premiums, fees and
expenses in connection therewith (the "Refinancing Indebtedness")
prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity
at the time such Refinancing Indebtedness is incurred which is
not less than the remaining Weighted Average Life to Maturity
of the Notes;
(B) to the extent such Refinancing
Indebtedness refinances (x) Indebtedness subordinated or pari
passu to the Notes or any Guarantee, such Refinancing
52
Indebtedness is subordinated or pari passu to the Notes or
such Guarantee at least to the same extent as the Indebtedness
being refinanced or refunded or (y) Disqualified Stock, such
Refinancing Indebtedness must be Disqualified Stock; and
(C) such Indebtedness is issued and
guaranteed by the same entities that issued and/or guaranteed
the Indebtedness being redeemed, repurchased, acquired or
retired; and
(ix) other Indebtedness of Holdings or any of its
Subsidiaries in an aggregate principal amount not exceeding
$150,000,000.00 at any time outstanding.
Section 4.08 Liens.
-----
Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (except Permitted Liens) on any asset or property of Holdings or
any of its Subsidiaries, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless the Notes are equally and ratably
secured; provided, that neither Holdings nor any of its Subsidiaries shall
permit the Existing Notes to benefit from any Liens on any assets or property of
Holdings or any of its Subsidiaries or incur or profit therefrom, or assign or
convey any right to receive income therefrom, unless the Notes are equally and
ratably secured.
Section 4.09 Offer to Repurchase Upon Change of Control.
------------------------------------------
(a) If a Change of Control occurs, unless the Issuer has
previously or concurrently mailed a redemption notice with respect to all the
outstanding Notes as described under Section 3.07 hereof, the Issuer shall make
an offer to purchase all of the Notes pursuant to the offer described below (the
"Change of Control Offer") at a price in cash (the "Change of Control Payment")
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest to the date of purchase, subject to the right of Holders of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date. Within 30 days following any Change of Control (or 90 days, in the
case of a Designated Change of Control), the Issuer shall deliver notice of such
Change of Control Offer, with a copy to the Trustee, to each Holder to the
registered address of such Holder (or otherwise delivered in accordance with the
Applicable Procedures) with the following information:
(i) that a Change of Control Offer is being made
pursuant to this Section 4.09 and that all Notes properly tendered
pursuant to such Change of Control Offer will be accepted for payment
by the Issuer;
(ii) the purchase price and the purchase date, which
will be no earlier than 30 days nor later than 60 days from the date
such notice is delivered (the "Change of Control Payment Date");
(iii) that any Note not properly tendered will remain
outstanding and continue to accrue interest;
(iv) that unless the Issuer defaults in the payment
of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest
on the Change of Control Payment Date;
(v) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender
such Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of such Notes completed, to the Paying Agent specified
53
in the notice at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change of Control
Payment Date;
(vi) that Holders shall be entitled to withdraw their
tendered Notes and their election to require the Issuer to purchase
such Notes, provided that the Paying Agent receives, not later than the
close of business on the 30th day following the date of the Change of
Control notice, a facsimile transmission or letter setting forth the
name of the Holder of the Notes, the principal amount of Notes tendered
for purchase, and a statement that such Holder is withdrawing its
tendered Notes and its election to have such Notes purchased;
(vii) that if the Issuer is redeeming less than all
of the Notes, the Holders of the remaining Notes will be issued new
Notes and such new Notes will be equal in principal amount to the
unpurchased portion of the Notes surrendered (which must be equal to
$1,000 or an integral multiple thereof); and
(viii) the other instructions, as determined by the
Issuer, consistent with this Section 4.09, that a Holder must follow.
The notice, if delivered in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. If (a) the notice is delivered in a manner herein provided and (b)
any Holder fails to receive such notice or a Holder receives such notice but it
is defective, such Holder's failure to receive such notice or such defect shall
not affect the validity of the proceedings for the purchase of the Notes as to
all other Holders that properly received such notice without defect.
The Issuer shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws or regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.09, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations in this Section 4.09 by virtue thereof.
(b) On the Change of Control Payment Date, the Issuer shall,
to the extent permitted by law,
(i) accept for payment all Notes issued by it or
portions thereof properly tendered pursuant to the Change of Control
Offer,
(ii) deposit with the Paying Agent an amount equal to
the aggregate Change of Control Payment in respect of all Notes or
portions thereof so tendered, and
(iii) deliver, or cause to be delivered, to the
Trustee for cancellation the Notes so accepted together with an
Officer's Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer shall not be required to make a Change of
Control Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.09 applicable to a Change of Control
Offer made by the Issuer and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. Notwithstanding anything to the
54
contrary herein, a Change of Control Offer may be made in advance of a Change of
Control, conditional upon such Change of Control, if a definitive agreement is
in place for the Change of Control at the time of making of the Change of
Control Offer.
(d) The provisions of this Section 4.09 relative to the
Issuer's obligation to make an offer to repurchase the Notes as a result of a
Change of Control may be waived or modified with the written consent of the
Required Holders.
(e) Other than as specifically provided in this Section
4.09, any purchase pursuant to this Section 4.09 shall be made pursuant to the
provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.10 Asset Sales.
-----------
(a) Holdings shall not, and shall not permit any of its
Subsidiaries to, cause, make or suffer to exist an Asset Sale, unless after
giving effect thereto, Holdings shall continue to own directly or indirectly
100% of the Equity Interests of the Issuer and WNA, and unless:
(i) Holdings or such Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to
the fair market value (as determined in good faith by the Issuer or
Holdings) of the assets sold or otherwise disposed of; and
(ii) at least 75% of the consideration therefor
received by such Obligor or such Subsidiary, as the case may be, is in
the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on Holdings'
or such Subsidiary's most recent balance sheet or in the
footnotes thereto) of the Issuer or such Subsidiary, other
than liabilities that are by their terms subordinated to the
Notes, that are assumed by the transferee of any such assets
and for which the Issuer and all of its Subsidiaries have been
validly released by all creditors in writing, and
(B) any securities received by Holdings or
such Subsidiary from such transferee that are converted by
Holdings or such Subsidiary into cash (to the extent of the
cash received) within 180 days following the closing of such
Asset Sale,
shall be deemed to be cash for purposes of this provision and for no
other purpose.
(b) Within 270 days after the receipt of any Net Proceeds of
any Asset Sale, Holdings or such Subsidiary, at its option, may apply the Net
Proceeds from such Asset Sale:
(i) to permanently reduce:
(A) Obligations under the Credit Facilities,
and to correspondingly reduce commitments with respect
thereto; or
(B) Indebtedness of a Non-Obligor, other
than Indebtedness owed to Holdings or any of its Subsidiaries,
or
(ii) to make a Permitted Investment (A) in any one or
more businesses, provided that such Permitted Investment is in the form
of the acquisition of Capital Stock and results in Holdings or any of
its Wholly-Owned Subsidiaries owning an amount of the Capital Stock of
such business such that it constitutes a Wholly-Owned Subsidiary; (B)
55
that are capital expenditures; or (C) that are acquisitions of other
assets, in each of (A), (B) and (C), used or useful in a Similar
Business.
(c) Any Net Proceeds from the Asset Sale that are not invested
or applied as provided and within the time period set forth in Section 4.10(b)
hereof shall be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $200,000,000.00, the Issuer shall make an
offer to all Holders of the Notes (an "Asset Sale Offer"), to purchase the
maximum aggregate principal amount of the Notes that is an integral multiple of
$1,000 that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to the date fixed for the closing of such offer, in
accordance with the procedures set forth in this Indenture. The Issuer shall
commence an Asset Sale Offer with respect to Excess Proceeds within ten Business
Days after the date that Excess Proceeds exceed $200,000,000.00 by delivering
the notice required pursuant to the terms of this Indenture, with a copy to the
Trustee.
To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may
use any remaining Excess Proceeds for general corporate purposes, subject to the
covenants contained in this Indenture. If the aggregate principal amount of
Notes surrendered by such Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes to be purchased on a pro rata basis based on
the accreted value or principal amount of the Notes tendered. Upon completion of
any such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant
to this Section 4.10, the holder of such Net Proceeds may apply such Net
Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit
facility or otherwise invest such Net Proceeds in any manner not prohibited by
this Indenture.
(e) The Issuer shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws or regulations are applicable in connection
with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described in this Indenture by virtue thereof.
Section 4.11 Sale and Lease-Back Transactions.
--------------------------------
Holdings shall not, and shall not permit any of its
Subsidiaries to, enter into any Sale and Lease-Back Transaction, except:
(a) any such sale of any fixed or capital assets that is made
for cash consideration in an amount not less than the cost of such fixed or
capital asset and is consummated within 180 days after Holdings or such
Subsidiary acquires or completes the construction of such fixed or capital
asset;
(b) any such sale of the property listed on Schedule 4.11; and
(c) any other such sale if, after giving effect thereto, the
Attributable Debt in respect of the applicable Sale and Lease-Back Transaction
is within the limits set forth in clause (9) of the definition of Permitted
Liens (after giving effect to all such Sale and Lease-Back Transactions and
applicable Liens).
56
Section 4.12 Limitation on Restricted Payments.
---------------------------------
Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any payment or other
distribution on account of Holdings or any of its Subsidiaries' Equity
Interests, including any dividend or distribution payable in connection with any
merger or consolidation other than:
(i) dividends or distributions by Holdings payable
solely in Equity Interests (other than Disqualified Stock) of Holdings,
as applicable, or in options, warrants or other rights to purchase such
Equity Interests (other than Disqualified Stock); or
(ii) dividends or distributions by a Subsidiary of
Holdings so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by
a Subsidiary other than a Wholly-Owned Subsidiary, Holdings or a
Subsidiary of Holdings receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in
such class or series of securities;
(b) purchase, redeem, defease or otherwise acquire or retire
for value any Equity Interests of any Obligor or any direct or indirect parent
company of any Obligor, including in connection with any merger or
consolidation;
(c) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value in each case, prior to any
scheduled repayment, sinking fund payment or maturity, any Subordinated
Indebtedness, other than the purchase, repurchase or other acquisition of
Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of purchase, repurchase or acquisition; or
(d) make any Restricted Investment,
all such payments and other actions set forth in clauses (a) through (d) above
being collectively referred to as "Restricted Payments") except that Holdings
and the Issuer may, and may permit their respective Subsidiaries to, so long as
no Default shall have occurred and be continuing or would occur as a consequence
thereof, to effect the following:
(A) the making of any Restricted Payment so long as
immediately prior to and immediately after giving effect to such Restricted
Payment and any Indebtedness incurred or repaid in connection therewith on a pro
forma basis the Consolidated Leverage Ratio is less than or equal to 2.50 to
1.00;
(B) the declaration and payment of ordinary (as
opposed to special) cash dividends on Holdings' common stock in the ordinary
course of business consistent with past practices: (i) so long as immediately
prior to and after giving effect to each such dividend and any Indebtedness
incurred or repaid in connection therewith, on a pro forma basis, the Obligors
could incur $1.00 of additional Indebtedness under Section 4.07(a) or (ii) such
dividends do not exceed 6% per annum of Holdings' market capitalization as of
the last day of the most recent fiscal quarter based on the weighted average
closing price of Holdings' common stock during each day of such fiscal quarter
so long as immediately prior to and after giving effect to each such dividend
and any Indebtedness incurred or repaid in connection therewith, on a pro forma
basis, the Consolidated Leverage Ratio is less than or equal to 5.00 to 1.00;
57
(C) the payment of any dividend or distribution or
the consummation of any irrevocable redemption within 60 days after the date of
declaration of the dividend or distribution or giving of the redemption notice,
as applicable, if at the date of declaration or notice such payment or
redemption would have complied with the provisions of this Indenture;
(D) the defeasance, redemption, repurchase or other
acquisition or retirement of Subordinated Indebtedness of Holdings and its
Subsidiaries made by exchange for, or out of the proceeds of the substantially
concurrent sale of, new Indebtedness of Holdings and its Subsidiaries that is
incurred in compliance with Section 4.07 hereof so long as:
(i) the principal amount (or accreted value, if
applicable) of such new Indebtedness does not exceed the principal
amount plus any accrued and unpaid interest on the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired for
value, plus the amount of any premium required to be paid under the
terms of the instrument governing the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired and any fees and expenses
incurred in the issuance of such new Indebtedness;
(ii) such Indebtedness is subordinated to the Notes
at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired for
value;
(iii) such Indebtedness has a final scheduled
maturity date equal to or later than the final scheduled maturity date
of the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired;
(iv) such Indebtedness is issued and guaranteed by
the same entities that issued and/or guaranteed the Indebtedness being
redeemed, repurchased, acquired or retired; and
(v) such Indebtedness has a Weighted Average Life to
Maturity equal to or greater than the remaining Weighted Average Life
to Maturity of the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired.
(E) the declaration and payment of dividends or
distributions to holders of any class or series of Disqualified Stock of
Holdings or any of its Subsidiary issued in accordance with Section 4.07 hereof;
(F) the repurchase by Holdings of Equity Interests of
Holdings, so long as (i) the number of shares of common stock of Holdings so
repurchased since the Merger does not exceed the number of shares issued in the
Merger (adjusted for stock splits, stock combinations and similar transactions),
(ii) the aggregate amount of such Restricted Payments since the Merger does not
exceed $800,000,000.00, (iii) all such Equity Interests repurchased by Holdings
are retired and not held as treasury stock, and (iv) at the time of and
immediately after giving effect to each such Restricted Payment and any
Indebtedness incurred or repaid in connection therewith, on a pro forma basis,
the Obligors could incur $1.00 of additional Indebtedness under Section 4.07(a);
(G) the repurchase, retirement or other acquisition
sor retirement for value of Equity Interests of Holdings held by any current or
former employee or director (or their respective estates, heirs, beneficiaries,
transferees, spouses or former spouses) of Holdings and its Subsidiaries
pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or similar agreement, in each case entered
into in the ordinary course of business; and
58
(H) the making of other Restricted Payments that are
not otherwise permitted in any other clause of this Section 4.12 in an aggregate
amount in any fiscal year of Holdings not to exceed the sum of (i)
$50,000,000.00 plus (ii) up to $25,000,000.00 of the amount available pursuant
to clause (i) above for the preceding fiscal year, but unused in such fiscal
year (the amounts in clause (i) above being deemed to be utilized first in any
fiscal year prior to the utilization of any carryover amount provided in this
clause (ii)).
Section 4.13 Maintenance of Office or Agency.
-------------------------------
The Issuer shall maintain an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar)
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer shall 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 the Issuer 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
Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency for such purposes. The
Issuer shall 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.
The Issuer hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Issuer in accordance with Section
2.03 hereof.
Section 4.14 Stay, Extension and Usury Laws.
------------------------------
The Obligors covenant (to the extent that they may lawfully do
so) that they shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Obligors (to
the extent that they may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and covenant that they shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.15 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
------------
(a) Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any such Subsidiary to:
(i) (A) pay dividends or make any other distributions
to Holdings or any of its Subsidiaries on their Capital Stock or with
respect to any other interest or participation in, or measured by, its
profits, or
(B) pay any Indebtedness owed to Holdings or any
of its Subsidiaries;
59
(ii) make loans or advances to Holdings or any of its
Subsidiaries; or
(iii) sell, lease or transfer any of its properties
or assets to Holdings or any of its Subsidiaries.
(b) The restrictions in Section 4.15(a) hereof shall not apply
to encumbrances or restrictions existing under or by reason of:
(i) contractual encumbrances or restrictions in
effect on the Issue Date, including pursuant to the Credit Agreement
and the related documentation;
(ii) this Indenture and the Notes;
(iii) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of
the nature discussed in clause (iii) of Section 4.15(a) hereof on the
property so acquired;
(iv) applicable Law;
(v) any agreement or other instrument of a Person
acquired by Holdings or any of its Subsidiaries in existence at the
time of such acquisition (but not created in contemplation thereof),
which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person and its
Subsidiaries, or the property or assets of the Person and its
Subsidiaries, so acquired;
(vi) contracts for the sale of assets or mergers,
including customary restrictions with respect to Holdings and any of
its Subsidiaries pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary;
(vii) Secured Indebtedness otherwise permitted to be
incurred pursuant to Section 4.07 hereof and Section 4.08 hereof that
limit the right of the debtor to dispose of the assets securing such
Indebtedness;
(viii) customary provisions in joint venture
agreements and other similar agreements relating solely to such joint
venture;
(ix) customary provisions contained in leases or
licenses of intellectual property and other agreements, in each case,
entered into in the ordinary course of business; and
(x) any encumbrances or restrictions of the type
referred to in clauses (i), (ii) and (iii) of Section 4.15(a) hereof
imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (i)
through (ix) of this Section 4.15(b); provided that such amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith
judgment of the Issuer or Holdings, no more restrictive with respect to
such encumbrance and other restrictions taken as a whole than those
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
60
Section 4.16 Maintenance of Listing.
----------------------
(a) As promptly as possible after the Issue Date, and in any
event prior to the first Interest Payment Date after the Issue Date, so long as
any Notes remain outstanding, the Issuer shall procure and maintain the listing
of such Notes on the Channel Islands Stock Exchange or any other stock exchange
(during any period that is a Holding Period, reasonably acceptable to the GSMP
Purchasers) which is a "recognised stock exchange" as defined in s.1005 Income
Tax Act 2007 of the United Kingdom.
(b) The Issuer shall promptly notify the Trustee and each
Holder if:
(i) the Notes have not been admitted to listing as
described in (a) above on or before May 31, 2009; or
(ii) at any time after the Notes have been so
admitted to listing, the Notes (or any Note) shall lose their listed
status on the relevant stock exchange.
Section 4.17 Ratings for Notes.
-----------------
As soon as practicable (and in all events within 60 days from
the Issue Date), the Issuer will use commercially reasonable efforts to obtain
and, during any Holding Period, maintain a Debt Rating for the Notes from Rating
Agencies.
Section 4.18 Additional Guarantees.
---------------------
Holdings will cause each of its Subsidiaries that:
(a) guarantees any Indebtedness of Holdings or any of its
Subsidiaries permitted to be incurred pursuant to Section 4.07 (other than
guarantees of Indebtedness permitted to be incurred pursuant to Section
4.07(b)(iii), (iv), (v), (vi), (vii) and (ix)); or
(b) incurs any Indebtedness or issues any shares of
Disqualified Stock or Preferred Stock permitted to be incurred or issued
pursuant to Section 4.07 hereof (other than Indebtedness permitted to be
incurred pursuant to Section 4.07(b)(iii), (iv), (v), (vi), (vii) and (ix)) to
execute and deliver to the Trustee, a supplemental indenture, substantially in
the form attached hereto as Exhibit D, pursuant to which such Subsidiary will
guarantee payment of the Notes and the Obligations of the Issuer under this
Indenture. Each Guarantee by a Subsidiary Guarantor will be limited to an amount
not to exceed the maximum amount that can be guaranteed by that Subsidiary
without rendering the Guarantee, as it relates to such Subsidiary Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
To evidence its Guarantee set forth in Article 10 hereof, each
subsequent Guarantor hereby agrees that a notation of such Guarantee
substantially in the form attached as Exhibit E hereto will be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers. Each subsequent Guarantor also will execute a supplemental
indenture.
Section 4.19 Centre of Main Interests.
------------------------
No Obligor incorporated or otherwise existing under the laws
of England & Wales or any other country that is a member of the European Union
shall (and Holdings shall procure that none of its Subsidiaries incorporated or
61
otherwise existing under the laws of England & Wales or any other country that
is a member of the European Union shall), without the prior written consent of
the Required Holders, cause or allow its Centre of Main Interests to change to a
country other than England & Wales or such other country that is a member of the
European Union, as applicable.
Section 4.20 Maintenance of Process Agent.
----------------------------
The Issuer shall maintain a Person in New York, New York
acting as agent to receive service of process on behalf of it and its property
and capable of discharging the functions of the Process Agent set forth in
Section 12.02.
Section 4.21 Registration.
------------
The Issuer shall have re-registered as a public limited
company as defined in the Companies Act of 2006 within 30 days of the Issue
Date.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All
Assets.
------
(a) Neither the Issuer nor any Holding Company (each, a
"Designated Obligor") shall consolidate or merge with or into or wind up into
(whether or not the Designated Obligor is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets, in one or more related transactions, to any Person
unless:
(i) either: (A) the Designated Obligor is the
surviving corporation; or (B) the Person formed by or surviving any
such consolidation or merger (if other than the Designated Obligor) or
to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made is a corporation organized or existing
under the laws of the jurisdiction of organization of such Designated
Obligor (such Person, as the case may be, being herein called the
"Successor Company"), and the Successor Company of the Issuer shall be,
and maintain its status as, a public limited company as defined in the
Companies Act 2006.
(ii) the Successor Company, if other than the
Designated Obligor, expressly assumes all the obligations of the
Designated Obligor under the Notes and this Indenture pursuant to
supplemental indentures or other documents or instruments in form
reasonably satisfactory to the Trustee;
(iii) immediately prior to and immediately after such
transaction, (A) no Default exists and (B) Holdings (or if Holdings is
the Designated Obligor, the Successor Company to Holdings) owns
directly or indirectly 100% of the Equity Interests of each of the
Issuer and WNA;
(iv) immediately after giving pro forma effect to
such transaction and any related financing transactions, as if such
transactions had occurred at the beginning of the applicable
four-quarter period, the Successor Company would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to Section 4.07(a)
62
hereof; provided that this clause (iv) shall not apply to any
consolidation or merger of any Designated Obligor with, or any transfer
by any Designated Obligor or all or substantially all of its properties
or assets to, any other Designated Obligor;
(v) each Guarantor, unless it is a Opco
Guarantor that is the other party to the transactions described above,
in which case Section 5.01(c)(i)(B) hereof shall apply, shall have by
supplemental indenture confirmed that its Guarantee shall apply to such
Person's obligations under this Indenture and the Notes; and
(vi) Holdings shall have delivered to the Trustee
(and during any period that is a Holding Period, the Holders) a
customary Officer's Certificate and a customary Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture and during
any period that is a Holding Period other customary matters reasonably
requested by the Required Holders; provided that, the Required Holders
shall provide notice of such request to the Trustee.
(b) If applicable, the Successor Company shall succeed to, and
be substituted for the Designated Obligor, as the case may be, under this
Indenture, the Guarantees and the Notes, as applicable.
(c) Subject to certain limitations described in this Indenture
governing release of a Guarantee upon the sale, disposition or transfer of a
Opco Guarantor, no Opco Guarantor shall, and Holdings shall not permit any Opco
Guarantor to, consolidate or merge with or into or wind up into (whether or not
the Issuer or Opco Guarantor is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to any Person unless:
(i) (A) such Opco Guarantor is the surviving
corporation or the Person formed by or surviving any such consolidation
or merger (if other than such Opco Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation organized or existing under the laws of the
jurisdiction of organization of such Opco Guarantor, as the case may be
(such Opco Guarantor or such Person, as the case may be, being herein
called the "Successor Person");
(B) the Successor Person, if other than such
Opco Guarantor, expressly assumes all the obligations of such Opco
Guarantor under this Indenture and such Opco Guarantor's related
Guarantee pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Trustee;
(C) immediately prior to and immediately after
such transaction, no Default exists; and
(D) the Issuer shall have delivered to the
Trustee (and during any period that is a Holding Period, the Holders) a
customary Officer's Certificate and a customary Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture, including
Section 4.10 hereof, and during any period that is a Holding Period
other customary matters reasonably requested by the Required Holders;
provided that, the Required Holders shall provide notice of such
request to the Trustee; or
(ii) the transaction is made in compliance with
Section 4.10 hereof.
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(d) Subject to certain limitations described in this
Indenture, the Successor Person shall succeed to, and be substituted for, such
Opco Guarantor under this Indenture and such Opco Guarantor's Guarantee.
Notwithstanding the foregoing, any Opco Guarantor may merge into or consolidate
with or transfer all or part of its properties and assets to another Opco
Guarantor or the Issuer.
Section 5.02 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets in accordance with Section 5.01 hereof, the Successor Company or
Successor Person formed by such consolidation or into or with which an Obligor
is merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that from
and after the date of such consolidation, merger, sale, lease, conveyance or
other disposition, the provisions of this Indenture referring to Holdings, the
Issuer or such other Obligor shall refer instead to the applicable Successor
Company or Successor Person, as applicable and not to the predecessor), and may
exercise every right and power of Holdings, the Issuer or such other Obligor, as
applicable under this Indenture with the same effect as if such successor Person
had been named as Holdings, the Issuer or such other Obligor herein; provided
that in the case of the Issuer, the predecessor Issuer shall not be relieved
from the obligation to pay the principal of and interest on the Notes and the
fees and expenses of the Trustee, except in the case of a sale, assignment,
transfer, conveyance or other disposition of all of the Issuer's assets that
meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
-----------------
An "Event of Default" wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in payment when due and payable, upon redemption,
acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(b) (i) during any Holding Period, default for 3 Business Days
or more in the payment when due of interest on or with respect to the Notes and
(ii) during any period that is not a Holding Period, default for 30 days or more
in the payment when due of interest on or with respect to the Notes;
(c) (i) during any Holding Period (A) failure by Holdings or
any of its Subsidiaries to comply with any of its obligations, covenants or
agreements contained in Section 4.02, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12
or 4.15 hereof or Article 5 hereof or (B) failure by Holdings or any of its
Subsidiaries to comply with any of its obligations, covenants or agreements
(other than a default referred to in clauses (a) and (b) above and this clause
(c)(i)) contained in this Indenture, the Notes or any other Financing Document,
and if such failure is capable of remedy, such failure shall continue unremedied
for a period of 30 days after the earlier of the date (A) Holdings or any of its
Subsidiaries has knowledge of such failure or (B) notice is given by the Trustee
or any Holder to the Issuer; and (ii) during any period that is not a Holding
Period, failure by Holdings or any of its Subsidiaries to comply with any of its
obligations, covenants or agreements contained in this Indenture or a default in
the performance, or breach, of any covenant of the Issuer or any Guarantor
(other than a default referred to in clauses (a) and (b) above), and such
64
failure shall continue unremedied for a period of 30 days notice is given to the
Issuer by the Trustee or by the Holders of at least 25% in principal amount of
the Notes then outstanding;
(d) (i) during any Holding Period, either (A) Holdings or any
of its Subsidiaries shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness or
Material Swap Obligations, when and as the same shall become due and payable,
(B) any event or condition occurs that results in any Material Indebtedness of
Holdings or any of its Subsidiaries becoming due prior to its scheduled maturity
or (C) any event or condition occurs in respect of any Material Indebtedness of
Holdings or any of its Subsidiaries (other than any Credit Facilities) that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of such Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that clause (d)(i)(B) or (C) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary sale
or transfer of the property or assets securing such Indebtedness; and (ii)
during any period that is not a Holding Period, any event or condition occurs
that results in any Material Indebtedness of Holdings or any of its Subsidiaries
becoming due prior to its scheduled maturity, or Holdings or any of its
Subsidiaries fail to pay any Material Indebtedness at maturity;
(e) one or more judgments for the payment of money in an
aggregate amount in excess of $30,000,000.00 (to the extent not covered by
insurance provided by a carrier that is not disputing coverage) shall be
rendered against Holdings, any of its Subsidiaries or any combination thereof,
which Holdings or any of its Subsidiaries has failed to pay, and the stayed, or
any formal legal process has been commenced by a judgment creditor to attach or
levy upon any material assets of Holdings or any of its Subsidiaries to enforce
any such judgment;
(f) An involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of Holdings or any of its Material Subsidiaries or their
debts, or of a substantial part of their assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings or any of its Material Subsidiaries
or for a substantial part of their assets, and, in any case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(g) Holdings or any of its Material Subsidiaries shall: (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (f) of this Section 6.01, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings or any of its
Material Subsidiaries or for a substantial part of their assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing Holdings
or any of its Subsidiaries;
(h) Holdings or any of its Material Subsidiaries shall become
unable, admit in writing its inability, or fail generally to pay their debts as
they become due;
(i) during any Holding Period, any representation or warranty
made or deemed made by or on behalf of Holdings or any of its Subsidiaries in or
in connection with any Financing Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with any Financing
65
Document or any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect (or, with respect to any
representation or warranty modified by materiality or Material Adverse Effect,
in any respect) when made or deemed made;
(j) during any Holding Period, an ERISA Event shall have
occurred that, in the opinion of the Required Holders, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
result in a Material Adverse Effect; or
(k) during any Holding Period, any Financing Document, at any
time after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or Holdings or any of its
Subsidiaries (including any Obligor) contests in any manner the validity or
enforceability of any Financing Document; or any Obligor denies that it has any
or further liability or obligation under any Financing Document, or purports to
revoke, terminate or rescind any Financing Document.
Section 6.02 Acceleration.
------------
If any Event of Default (other than an Event of Default
specified in clause (f) or (g) of Section 6.01 hereof with respect to the
Issuer) occurs and is continuing under this Indenture, the Trustee or the
Holders of at least 25% in principal amount of the then total outstanding Notes
may declare the principal, premium, if any, interest and any other monetary
obligations on all the then outstanding Notes to be due and payable immediately.
Upon the effectiveness of such declaration, such principal and
interest shall be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of
Default arising under clause (f) or (g) of Section 6.01 hereof with respect to
the Issuer, all outstanding Notes shall be due and payable immediately without
further action or notice.
The Required Holders may on behalf of all of the Holders by
written notice to the Trustee rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal, interest, or premium
that has become due solely because of the acceleration) have been cured or
waived.
Section 6.03 Other Remedies.
--------------
If an Event of Default has occurred and is continuing, then in
each case the Notes will accrue interest at the stated interest rate on the
Notes plus the Default Interest Rate until such time as no such Event of Default
shall be continuing (to the extent that the payment of such interest shall be
legally enforceable). At any other time, any amounts payable under or in respect
of the Notes not paid when due will accrue interest at the stated interest rate
on the Notes plus the Default Interest Rate until such time as such amounts are
paid in full, including any interest thereon (to the extent that the payment of
such overdue interest shall be legally enforceable). Default interest shall be
payable in cash on demand and, to the extent applicable, in accordance with
Section 2.12 hereof.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
66
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note 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. All remedies
are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
-----------------------
The Required Holders may on behalf of the Holders of all of
the Notes by written notice to the Trustee waive any existing Default and its
consequences hereunder, except a continuing Default in the payment of interest
on, premium, if any, or the principal of any Note held by a non-consenting
Holder (including in connection with an Asset Sale Offer or a Change of Control
Offer) or in respect of any other matter that requires the consent of all
Holders pursuant to Section 9.02(b); provided, subject to Section 6.02 hereof,
that the Required Holders may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05 Control by Majority.
-------------------
Subject to Section 7.01(e), the Required Holders may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture or that would involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
-------------------
Subject to Section 6.07 hereof, no Holder of a Note may pursue
any remedy with respect to this Indenture or the Notes unless:
(a) such Holder has previously given the Trustee notice that
an Event of Default is continuing;
(b) Holders of at least 10% in principal amount of the total
outstanding Notes have requested the Trustee to pursue the remedy;
(c) the Trustee has not complied with such request within 30
days after the receipt thereof and the offer of security or indemnity
satisfactory to the Trustee; and
(d) the Required Holders have not given the Trustee a
direction inconsistent with such request within such 30-day period.
Section 6.07 Rights of Holders of Notes to Receive Payment.
---------------------------------------------
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
and interest on the Note, on or after the respective due dates expressed in the
Note, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
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Section 6.08 Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(a) or (b)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Issuer for the
whole amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.09 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture 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, subject to any
determination in such proceedings, the Issuer, the Trustee and the Holders shall
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 has been instituted.
Section 6.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Default or Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Default or Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
--------------------------------
The Trustee is authorized to 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 of the Notes allowed in any judicial proceedings relative to the
Issuer (or any other obligor upon the Notes including the Guarantors), its
creditors or its property and shall be entitled and empowered to participate as
a member in any official committee of creditors appointed in such matter and to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
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 agents
68
and counsel, and any other amounts due the Trustee under Section 7.06 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.06 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. 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 Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.13 Priorities.
----------
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
(i) to the Trustee, its agents and attorneys for amounts due
under Section 7.06 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
(ii) to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively; and
(iii) to the Issuer or to such party as a court of competent
jurisdiction shall direct including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.13.
Section 6.14 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
-----------------
(a) If 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 its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
69
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) 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. However, 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 examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved in a court of competent jurisdiction that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any
of its rights or powers under this Indenture at the request or direction of any
of the Holders of the Notes unless the Holders have offered to the Trustee
reasonable indemnity or security against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
Section 7.02 Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely upon any document
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, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer, personally or
by agent or attorney at the sole cost of the Issuer and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officer's Certificate or Opinion of Counsel. The Trustee may
70
consult with counsel of its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Issuer shall be sufficient if
signed by an Officer of the Issuer.
(f) None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, 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 indemnity satisfactory to it
against such risk or liability is not assured to it.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default of Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture.
(h) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(j) In no event shall the Trustee be charged with any
knowledge of any of the Financing Documents referred to herein, except this
Indenture and the Notes issued hereunder.
Section 7.03 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Issuer or any
Affiliate of the Issuer with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Section 7.09 hereof.
Section 7.04 Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Issuer's use of the proceeds from the Notes or
any money paid to the Issuer or upon the Issuer's direction under any provision
71
of this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
------------------
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall deliver to Holders of Notes a notice of the
Default within 15 Business Days after it occurs. Except in the case of a default
in payment of principal of or interest on a Note, the Trustee may withhold the
notice if and so long as the board of directors of the Trustee, the executive or
any trust committee of such directors or Responsible Officers of the Trustee in
good faith determine that withholding the notice is in the interests of Holders
of the Notes. The Trustee shall not be deemed to know of any Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is such a Default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.
Section 7.06 Compensation and Indemnity.
--------------------------
The Issuer shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree in writing from time to time. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Issuer shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuer and the Guarantors, jointly and severally, shall
indemnify the Trustee for, and hold the Trustee harmless against, any and all
loss, damage, claims, liability or expense (including attorneys' fees) incurred
by it in connection with the acceptance or administration of this trust and the
performance of its duties hereunder (including the costs and expenses of
enforcing this Indenture against the Issuer or any of the Guarantors (including
this Section 7.06) or defending itself against any claim whether asserted by any
Holder, the Issuer or any Guarantor, or liability in connection with the
acceptance, exercise or performance of any of its powers or duties hereunder).
The Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder. The Issuer shall defend the claim and the
Trustee may have separate counsel and the Issuer shall pay the fees and expenses
of such counsel. The Issuer need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
The obligations of the Issuer under this Section 7.06 shall
survive the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee.
To secure the payment obligations of the Issuer and the
Guarantors in this Section 7.06, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or (g) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
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Section 7.07 Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.07. The Trustee may
resign in writing at any time upon 30 days' prior written notice to the Issuer
and be discharged from the trust hereby created by so notifying the Issuer. The
Required Holders may remove the Trustee by so notifying the Trustee and the
Issuer in writing. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.09 hereof;
(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 custodian or 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, the Issuer shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Required Holders may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Issuer's expense), the Issuer or the Holders of at least 10% in principal amount
of the then outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.09 hereof,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, 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. The successor Trustee shall deliver a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee; provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.06 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.07, the Issuer's obligations under Section 7.06 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.08 Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.09 Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
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America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100,000,000.00 as set forth in its most recent published annual report of
condition.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Issuer may at any time, at the option of its Board of
Directors evidenced by a resolution set in an Officer's Certificate, elect to
have either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
------------------------------
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuer and each of the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their obligations with respect to
all outstanding Notes and Guarantees on the date the conditions set forth below
are satisfied ("Legal Defeasance"). For this purpose, Legal Defeasance means
that the Issuer and the Guarantors shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture including that of the Guarantors (and the Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in
respect of the principal of, premium, if any, and interest on the Notes when
such payments are due solely out of the trust created pursuant to this Indenture
referred to in Section 8.04 hereof;
(b) the Issuer's obligations with respect to Notes concerning
issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost
or stolen Notes and the maintenance of an office or agency for payment and money
for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the
Trustee, and the Issuer's and the Guarantors' obligations in connection
therewith; and
(d) this Section 8.02.
------------
Subject to compliance with this Article 8, the Issuer may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
-------------------
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuer and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from their obligations under the covenants contained in Sections
4.03, 4.04, and 4.06 through 4.19 hereof and clauses (iv) and (v) of Section
5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof are
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satisfied ("Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes 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 (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Issuer's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(c) through (k) hereof shall not constitute
Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance with respect to the Notes:
(a) the Issuer must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S. dollars,
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest due on the
Notes on the date of Stated Maturity or on the redemption date, as the case may
be, of such principal, premium, if any, or interest on such Notes and the Issuer
must specify whether such Notes are being defeased to maturity or to a
particular redemption date;
(b) in the case of Legal Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions,
(i) the Issuer has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or
(ii) since the issuance of the Notes, there has been
a change in the applicable U.S. federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, subject to customary assumptions and exclusions, the
Holders and Beneficial Owners of the Notes will not recognize income,
gain or loss for U.S. federal income tax purposes, as applicable, as a
result of such Legal Defeasance and will be subject to U.S. 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;
(c) in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions, the
Holders and Beneficial Owners of the Notes will not recognize income, gain or
75
loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to such 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;
(d) the Issuer shall have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders and Beneficial Owner of the
Notes will not recognize income, gain or loss for U.K. tax purposes as a result
of such Legal Defeasance or Covenant Defeasance, as the case may be, and will be
subject to such U.K. tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance or Covenant
Defeasance, as the case may be, had not occurred, and no withholding Tax will be
imposed by the United Kingdom (or any political subdivision of, or any authority
in, or of, the United Kingdom having the power to tax) on any payments under or
in respect of the Notes as a result of such Legal Defeasance or Covenant
Defeasance, as the case may be;
(e) no Default (other than that resulting from borrowing funds
to be applied to make such deposit and any similar and simultaneous deposit
relating to other Indebtedness, and in each case the granting of Liens in
connection therewith) shall have occurred and be continuing on the date of such
deposit;
(f) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under the Credit
Facilities or any other material agreement or instrument (other than this
Indenture) to which, Holdings or any of its Subsidiaries is a party or by which
Holdings or any of its Subsidiaries is bound (other than that resulting from any
borrowing of funds to be applied to make the deposit required to effect such
Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit
relating to other Indebtedness, and the granting of Liens in connection
therewith);
(g) the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that, as of the date of such opinion and subject to
customary assumptions and exclusions following the deposit, the trust funds will
not be subject to the effect of Section 547 of Title 11 of the United States
Code;
(h) the Issuer shall have delivered to the Trustee an
Officer's Certificate stating that the deposit was not made by the Issuer with
the intent of defeating, hindering, delaying or defrauding any creditors of the
Issuer or any Guarantor or others; and
(i) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions and exclusions) each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to Section 8.06 hereof, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer or a Guarantor acting as Paying
76
Agent) as the Trustee may determine, to the Holders of such 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.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or Government
Securities deposited pursuant to Section 8.04 hereof or the principal 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 Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon the
request of the Issuer any money or Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuer.
-------------------
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuer on its request or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Issuer for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer
as trustee thereof, shall thereupon cease.
Section 8.07 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any United
States dollars or Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuer's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided that, if the Issuer makes any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
-----------------------------------
Notwithstanding Section 9.02 hereof, the Issuer and the
Trustee may amend or supplement this Indenture and any Guarantee or Notes
without the consent of any Holder:
(a) to provide for uncertificated Notes of such series in
addition to or in place of certificated Notes;
(b) to comply with Section 5.01 hereof;
77
(c) to secure the Notes as required by this Indenture
including pursuant to Section 4.08;
(d) to evidence and provide for the acceptance and appointment
under this Indenture of a successor Trustee thereunder pursuant to the
requirements thereof;
(e) to provide for the issuance of exchange notes or private
exchange notes, which are identical to exchange notes except that they are not
freely transferable;
(f) to add a Guarantor under this Indenture;
(g) during any period that is not a Holding Period, to make
any amendment to the provisions of this Indenture relating to the transfer and
legending of Notes as permitted by this Indenture, including, without limitation
to facilitate the issuance and administration of the Notes; provided, however,
that, (i) compliance with this Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any applicable
securities law and (ii) such amendment does not adversely affect the rights of
Holders to transfer Notes;
(h) during any period that is not a Holding Period, to cure
any ambiguity, omission, defect or inconsistency contained herein;
(i) during any period that is not a Holding Period, to add to
the covenants of the Issuer for the benefit of the Holders or to surrender any
right or power conferred upon the Issuer or the other Obligors; or
(j) during any period that is not a Holding Period, to make
any change that does not adversely affect the legal rights hereunder of any
Holder.
Upon the request of the Issuer accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 and 9.05 hereof, the Trustee shall join with the
Issuer in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
--------------------------------
(a) Except as provided below in this Section 9.02, the Issuer
and the Trustee may amend or supplement this Indenture, the Notes and the
Guarantees with the consent of the Required Holders voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium,
if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Guarantees or the Notes may be waived with the consent of the
Required Holders voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes
are considered to be "outstanding" for the purposes of this Section 9.02.
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Upon the request of the Issuer accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02 and
9.05 hereof, the Trustee shall join with the Issuer in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Issuer shall deliver to the Holders of Notes
affected thereby such amendment, supplement or waiver and a notice briefly
describing the amendment, supplement or waiver. Any failure of the Issuer to
deliver such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental indenture or
waiver.
(b) Without the consent of each Holder of Notes, an amendment,
supplement or waiver under this Section 9.02 may not:
(i) reduce the principal amount of Notes whose
Holders must consent to an amendment or waiver;
(ii) change the fixed final maturity of any such Note
or alter or waive the provisions with respect to the redemption of such
Notes (other than provisions relating to Section 3.10, Section 4.09 and
Section 4.10 hereof to the extent that any such amendment or waiver
does not have the effect of reducing the principal of or changing the
fixed final maturity of any such Note or altering or waiving the
provisions with respect to the redemption of such Notes);
(iii) reduce the rate of or change the time for
payment of interest on any Note;
(iv) make any Note payable in money other than that
stated therein;
(v) make any change in the provisions of this
Indenture relating to the rights of Holders to receive payments of
principal of or premium, if any, or interest on the Notes;
(vi) make any change in the amendment and waiver
provisions of this Section 9.02(b);
(vii) impair the right of any Holder to receive
payment of principal of, or interest on such Holder's Notes on or after
the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Notes; or
(viii) except as expressly permitted by this
Indenture, modify the Guarantees in any manner adverse to the Holders
of the Notes.
Section 9.03 Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
79
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
The Issuer 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 preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such 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. No such consent shall be valid or effective for more
than 120 days after such record date unless the consent of the requisite number
of Holders has been obtained.
Section 9.04 Notation on or Exchange of Notes.
--------------------------------
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The Issuer
in exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.05 Trustee to Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuer may not sign an amendment, supplement or waiver until the Board of
Directors approves it. In executing any amendment, supplement or waiver, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents referred to in
by Section 7.02 hereof, an Officer's Certificate and an Opinion of Counsel
stating that (i) the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture including, Section 9.01(g)(i) and (ii)
and Section 9.01(j) and (ii) that such amendment, supplement or waiver is the
legal, valid and binding obligation of the Issuer and any Guarantors party
thereto, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof. Notwithstanding
the foregoing, no Opinion of Counsel will be required for the Trustee to execute
any amendment or supplement adding a new Guarantor under this Indenture.
Section 9.06 Payment for Consent.
-------------------
Neither the Issuer nor any Affiliate of the Issuer shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to all Holders and is paid to
all Holders that so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or agreement.
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ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
---------
Subject to this Article 10, each of the Guarantors hereby,
jointly and severally, absolutely and unconditionally guarantees to each Holder
of a 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 Notes or the obligations of the Issuer hereunder or thereunder,
that: (a) the principal of, interest, and premium, if any, on the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, demand,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other Obligations of the Issuer to the
Holders or the Trustee hereunder or thereunder shall 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 Notes or any of such other
obligations, the same Obligations shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Guarantors hereby agree that their obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Issuer, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Issuer,
any right to require a proceeding first against the Issuer, protest, notice and
all demands whatsoever and covenants that this Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and
this Indenture.
Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section 10.01.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or
the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (a) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 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 declaration of 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 Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantees.
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Each Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation, reorganization, should the Issuer 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 the Issuer'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 Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes or Guarantees, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment or any
part thereof, is rescinded, reduced, restored or returned, the 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.
In case any provision of any Guarantee 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.
The Guarantee issued by any Guarantor shall be a general
senior obligation of such Guarantor.
Each payment to be made by a Guarantor in respect of its
Guarantee shall be made without set-off, counterclaim, reduction or diminution
of any kind or nature.
Section 10.02 Limitation on Guarantor Liability.
---------------------------------
Each Subsidiary Guarantor, and by its acceptance of Notes,
each Holder, hereby confirms that it is the intention of all such parties that
the guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer
or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or
foreign law to the extent applicable to any guarantee. To effectuate the
foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors
hereby irrevocably agree that the obligations of each Subsidiary Guarantor shall
be limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Subsidiary
Guarantor (including, without limitation, all senior Indebtedness of such
Subsidiary Guarantor) that are relevant under such laws and after giving effect
to any collections from, rights to receive contribution from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 10, result in the obligations of such
Subsidiary Guarantor under its guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law. Each Subsidiary
Guarantor that makes a payment under the Guarantee shall be entitled upon
payment in full of all guaranteed obligations under this Indenture to a
contribution from each other Subsidiary Guarantor in an amount equal to such
other Subsidiary Guarantor's pro rata portion of such payment based on the
respective net assets of all the Subsidiary Guarantors at the time of such
payment determined in accordance with GAAP.
Section 10.03 Execution and Delivery.
----------------------
To evidence its Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that this Indenture shall be executed on behalf of
such Guarantor by its President, one of its Vice Presidents or one of its
Assistant Vice Presidents or a Director in the case of each Obligor organized
and operated under the laws of England and Wales.
82
Each Guarantor hereby agrees that its Guarantee set forth in
Section 10.01 hereof shall remain in full force and effect notwithstanding the
absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer of a Guarantor whose signature is on this
Indenture no longer holds that office at the time the Trustee authenticates the
Note, the Guarantee shall be valid nevertheless.
The delivery of any 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 Guarantors.
Section 10.04 Subrogation.
-----------
Each Guarantor shall be subrogated to all rights of Holders of
Notes against the Issuer in respect of any amounts paid by any Guarantor
pursuant to the provisions of Section 10.01 hereof; provided that, if an Event
of Default has occurred and is continuing, no Guarantor shall be entitled to
enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under this
Indenture or the Notes shall have been paid in full.
Section 10.05 Benefits Acknowledged.
---------------------
Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the guarantee and waivers made by it pursuant to its Guarantee are
knowingly made in contemplation of such benefits.
Section 10.06 Release of Guarantees.
---------------------
A Guarantee by a Guarantor shall be automatically and
unconditionally released and discharged, and no further action by such
Guarantor, the Issuer or the Trustee is required for the release of such
Guarantor's Guarantee, upon:
(a) (A) any sale, exchange or transfer (by merger or
otherwise) of the Capital Stock of such Guarantor (including any sale,
exchange or transfer), after which the applicable Guarantor is no
longer a Subsidiary of Holdings or all or substantially all the assets
of such Guarantor, which sale, exchange or transfer is made in
compliance with the applicable provisions of this Indenture; or (B) the
Issuer exercising its Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 hereof or the Issuer's obligations
under this Indenture being discharged in accordance with the terms of
this Indenture; and
(b) delivery by such Guarantor to the Trustee and (during any
period that is a Holding Period, the Holders) of an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Indenture relating to such transaction
have been complied with.
Section 10.07 Rights of Holders.
-----------------
The Guarantors consent and agree that the Holders may, at any
time and from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (i) amend, extend, renew,
compromise, discharge, accelerate or otherwise change the time for payment or
the terms of the Obligations under the Financing Documents or any part thereof;
and (ii) release or substitute one or more of any endorsers or other guarantors
of any of the Obligations under the Financing Documents. Without limiting the
83
generality of the foregoing, the Guarantors consent to the taking of, or failure
to take, any action which might in any manner or to any extent vary the risks of
the Guarantors under this Guarantee or which, but for this provision, might
operate as a discharge of the Guarantors.
Section 10.08 Certain Waivers.
---------------
The Guarantors hereby waive: (i) any defense arising by reason
of any disability or other defense of the Issuer or any Guarantor, or the
cessation from any cause whatsoever (including any act or omission of any
Obligor) of the liability of the Issuer; (ii) any defense based on any claim
that the Guarantors obligations exceed or are more burdensome than those of the
Issuer; (iii) the benefit of any statute of limitations affecting the
Guarantors' liability hereunder; (iv) any right to proceed against the Issuer,
proceed against or exhaust any security for the Obligations under the Financing
Documents, or pursue any other remedy in the power of any Obligor whatsoever;
(v) any benefit of and any right to participate in any security now or hereafter
held by any Obligor; and (vi) to the fullest extent permitted by law, any and
all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or sureties.
The Guarantors expressly waive all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Obligations under the Financing Documents, and all notices of acceptance of the
Guarantee or of the existence, creation or incurrence of new or additional
Obligations under the Financing Documents.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
--------------------------
This Indenture shall be discharged and shall cease to be of
further effect as to all Notes, when either:
(a) all Notes theretofore authenticated and delivered, except
lost, stolen or destroyed Notes which have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust, have been delivered
to the Trustee for cancellation; or
(b) (A) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of
redemption or otherwise, shall become due and payable within one year or are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuer and the Issuer or any Guarantor have irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders of the Notes, cash in U.S. dollars,
Government Securities, or a combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of interest to pay and
discharge the entire indebtedness on the Notes not theretofore delivered to the
Trustee for cancellation for principal, premium, if any, and accrued interest to
the date of maturity or redemption;
(B) no Default (other than that resulting from
borrowing funds to be applied to make such deposit and any similar and
simultaneous deposit relating to other Indebtedness) with respect to this
Indenture or the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under the Credit
84
Facilities or any other material agreement or instrument (other than this
Indenture) to which the Issuer or any Guarantor is a party or by which the
Issuer or any Guarantor is bound (other than that resulting from any borrowing
of funds to be applied to make such deposit and any similar and simultaneous
deposit relating to other Indebtedness, and the granting of Liens in connection
therewith);
(C) the Issuer has paid or caused to be paid all
sums payable by it under this Indenture; and
(D) the Issuer has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officer's Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, Section 7.06 shall survive and if money shall have been deposited
with the Trustee pursuant to subclause (A) of clause (b) of this Section 11.01,
the provisions of Section 11.02 and Section 8.06 hereof shall survive.
Section 11.02 Application of Trust Money.
--------------------------
Subject to the provisions of Section 8.06 hereof, all money
deposited with the Trustee pursuant to Section 11.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof 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, the Issuer's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 hereof; provided that if the Issuer has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Notices.
-------
Any notice or communication by the Issuer, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in person or
mailed by first-class mail (or registered or certified, return receipt
requested), fax or overnight air courier guaranteeing next day delivery, to the
others' address:
85
If to the Issuer and/or any Guarantor:
Trinity Acquisition Limited
c/o Willis Group Holdings Limited
51 Lime Street
London EI
United Kingdom
Fax No.: 44 (0)20 3124 7183
Attention: Adam G. Ciongoli
with a copy to:
Willis Legal
One World Financial Center
200 Liberty Street
New York, NY 10281
Fax No.: 212-519-5407
Attention: Adam G. Ciongoli
with a copy to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Fax No.: (212) 310-8007
Attention: Michael J. Aiello, Esq.
If to the Trustee:
The Bank of New York Mellon
101 Barclay Street, 4E
New York, NY 10286
Attention: Corporate Trust Global Finance Unit
Fax No.: (212) 815-5366
The Issuer, any Guarantor or the Trustee, by notice to the
others, may designate additional or different addresses for subsequent notices
or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: (i) at the time delivered by
hand, if personally delivered; (ii) five calendar days after being deposited in
the mail, postage prepaid, if mailed by first-class mail; (iii) when receipt
acknowledged, if faxed; (iv) and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery;
provided that any notice or communication delivered to the Trustee shall be
deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall be mailed by
first-class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
86
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
In addition to the foregoing, the Trustee agrees to accept and
act upon instructions or directions pursuant to this Indenture sent by unsecured
electronic methods; provided, however, that (a) the party providing such written
instructions, subsequent to such transmission or written instructions, shall
provide the originally executed instructions or directions to the Trustee in a
timely manner, and (b) such originally executed instructions or directions shall
be signed by an authorized representative of the party providing such
instructions or directions. If the party elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic method) and the
Trustee in its discretion elects to act upon such instructions, the Trustee's
understanding of such instructions shall be deemed controlling. The Trustee
shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee's reliance upon and compliance with such
instructions notwithstanding if such instructions conflict or are inconsistent
with a subsequent written instruction. The party providing electronic
instructions agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.
Section 12.02 Service of Process.
------------------
Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 12.01. In addition,
each Obligor not organized in the US or a State thereof (each such Obligor a
"Foreign Obligor") hereby irrevocably appoints CT Corporation System (the
"Process Agent") with an office on the date hereof at 111 Eighth Avenue, New
York, NY 10011, as its agent to receive on behalf of such Obligor and its
property service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be made
by mailing or delivering a copy of such process to such Obligor in care of the
Process Agent at the Process Agent's address above, and such Obligor hereby
irrevocably authorizes and directs the Process Agent to receive such service on
its behalf. As an alternative method of service, each Obligor also irrevocably
consents to the service of any and all process in any such action or proceeding
by the mailing of copies of such process to such Obligor at its address
specified in Section 12.01 (such service to be effective seven days after
mailing thereof). Each Foreign Obligor covenants and agrees that it shall take
any and all reasonable action, including the execution and filing of any and all
documents, that may be necessary to continue the designation of the Process
Agent above in full force and effect, and to cause the Process Agent to continue
to act in such capacity.
Nothing in this Section 12.02 shall affect the right of any
Purchaser or the Trustee to serve legal process in any other manner permitted by
applicable law or affect the right of any Purchaser or the Trustee to bring any
suit, action or proceeding against each Obligor or its property in the courts of
other jurisdictions, including England and Wales.
Section 12.03 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Issuer or any of the
Guarantors to the Trustee to take any action under this Indenture, the Issuer or
such Guarantor, as the case may be, shall furnish to the Trustee upon request:
87
(a) An Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.04 hereof) stating that, in the opinion of the signer, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) An Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.04 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.04 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 statements or opinions contained 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 informed opinion as to whether or not such covenant or condition
has been complied with (and, in the case of an Opinion of Counsel, may be
limited to reliance on an Officer's Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.05 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 12.06 No Personal Liability of Directors, Officers, Employees and
Stockholders.
------------
No director, officer, employee, incorporator or stockholder of
the Issuer or any Guarantor or any of their parent companies shall have any
liability for any obligations of the Issuer or the Guarantors under the Notes,
the Guarantees or this Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder by accepting Notes
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 12.07 Governing Law.
-------------
THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 12.08 Waiver of Jury Trial.
--------------------
EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
88
THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.09 Force Majeure.
-------------
In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations under this Indenture
arising out of or caused by, directly or indirectly, forces beyond its
reasonable control, including without limitation strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software or hardware) services; it being
understood that the Trustee shall use reasonable efforts, which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
Section 12.10 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.11 Successors.
----------
All agreements of the Issuer in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors. All agreements of each Guarantor in this Indenture shall
bind its successors, except as otherwise provided in Section 10.06 hereof.
Section 12.12 Severability.
------------
In case any provision in this Indenture or in the 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.
Section 12.13 Counterpart Originals.
---------------------
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 12.14 Table of Contents, Headings, etc.
--------------------------------
The Table of Contents, Cross-Reference Table 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 of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
89
IN WITNESS WHEREOF, the parties have executed this Indenture
as of the date first written above.
TRINITY ACQUISITION LIMITED
By: _____________________________
Name:
Title:
WILLIS GROUP HOLDINGS LIMITED
By: _____________________________
Name:
Title:
WILLIS INVESTMENT UK HOLDINGS LIMITED
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
By: _____________________________
Name:
Title:
WILLIS NORTH AMERICA INC.
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK MELLON,
as Trustee
By:
---------------------------------
Name:
Title:
Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of March 6, 2009 (the
"Agreement"), by and among Willis Group Holdings Limited, an exempted company
under the Companies Act 1981 of Bermuda ("Holdings"), Trinity Acquisition
Limited, a company organized and operated under the laws of England and Wales
and an indirect subsidiary of Holdings (the "Issuer"), and each of the other
guarantors party hereto (collectively with Holdings, the "Guarantors" and the
Guarantors, together with the Issuer, the "Obligors"), on the one hand, and GSMP
V Onshore International, Ltd., an exempted Issuer incorporated in the Cayman
Islands with limited liability ("GSMP Onshore"), GSMP V Offshore International,
Ltd., an exempted Issuer incorporated in the Cayman Islands with limited
liability ("GSMP Offshore") and GSMP V Institutional International, Ltd., an
exempted Issuer incorporated in the Cayman Islands with limited liability ("GSMP
Institutional" and, together with GSMP Onshore and GSMP Offshore, the "Initial
Purchasers"), on the other hand.
This Agreement is entered into in connection with the Note Purchase
Agreement by and among the Obligors, the Initial Purchasers and certain other
purchasers named therein, dated as of February 10, 2009 (the "Note Purchase
Agreement") which provides for, among other things, the issuance by the Issuer
to the Initial Purchasers of $500,000,000.00 aggregate principal amount of the
Issuer's 12.875% Senior Notes due December 31, 2016 (the "Notes") which will be
guaranteed by each of the Guarantors (the "Guarantees"). References herein to
the "Securities" refer to the Notes and the Guarantees collectively (or any
Securities into which the Notes and Guarantees may be converted or exchanged).
In order to induce the Initial Purchasers to enter into the Note Purchase
Agreement, the Obligors have agreed to provide the registration rights set forth
in this Agreement for the sole benefit of the Initial Purchasers and not for the
benefit of any subsequent holder or holders of the Securities.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Automatic Shelf Registration Statement" shall have the meaning set
forth in Section 3 hereof.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Note
Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Guarantors" shall have the meaning set forth in the preamble and
shall also include any of the Guarantors' successors.
"Holders" shall mean the Initial Purchasers and any subsequent
holder of Registrable Securities that is a member of the GSMP Group (as defined
in the Indenture), for so long as they own any Registrable Securities, and not
any other subsequent holder of such securities.
"Indenture" shall mean the Indenture relating to the Securities
dated as of March 6, 2009 among the Issuer, as issuer, the Guarantors and The
Bank of New York Mellon, as trustee, and as the same may be amended and
supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Inspector" shall have the meaning set forth in Section 3(m) hereof.
"Issuer" shall have the meaning set forth in the Preamble and shall
also include the Issuer's successors.
"Note Purchase Agreement" shall have the meaning set forth in the
preamble.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Prospectus" shall mean the prospectus included in a registration
statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities sold to the
Initial Purchasers on the Closing Date, for so long as they are owned directly
or indirectly by the Initial Purchasers; provided that the Securities shall
cease to be Registrable Securities (i) when a registration statement with
respect to such Securities has been declared effective under the Securities Act
and such Securities have been disposed of pursuant to such registration
statement, (ii) after such Securities have been sold pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A) under the Securities Act
or (iii) when such Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Obligors with this Agreement, including,
without limitation, (i) all SEC, stock exchange or FINRA registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and disbursements
of counsel for any Underwriters or Holders in connection with blue sky
qualification of any Registrable Securities), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, printing and
distributing any registration statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Obligors and
the reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Required Holders) including one local or
foreign counsel in each relevant jurisdiction, (viii) the fees and disbursements
of the independent public accountants of the Obligors, including the expenses of
any special audits or "comfort" letters required by or incident to the
performance of and compliance with this Agreement, (ix) the expenses incurred in
connection with any road shows, including preparation and transmission of any
road shows, (x) printers costs, (xi) any expenses related to clearance of the
Securities on DTC, Everclear and/or Clearstream, and any expenses related to
obtaining CUSIP numbers for the Securities, (xii) the fees and disbursements and
expenses of any qualified independent underwriter necessary in connection with
any offering of Securities hereunder and (xiii) fees and disbursements of
Underwriters customarily paid by Obligors of securities, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
2
"Required Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Issuer or any of its Affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(a) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Obligors that covers all the Registrable Securities (and may
cover other securities of the Obligors) on an appropriate form (including,
without limitation, Form S-1 or F-1, or Form S-3 or F-3) under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein. To the extent the Obligors are eligible (i) a Shelf Registration
Statement on Form S-1 or F-1 may be refiled at any time on Form S-3 or F-3, (ii)
the Shelf Registration Statement may be filed in the form of an "automatic shelf
registration statement" (as defined below), and (iii) the Shelf Registration
Statement may be re-filed at any time as an automatic shelf registration
statement.
"Staff" shall mean the staff of the SEC.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from
time to time.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act.(a) Upon the written
demand (the "Shelf Demand") of the Required Holders, the Obligors shall be
required to file, on up to three occasions, a Shelf Registration Statement with
the SEC to cover resales of the Registrable Securities; provided that, each
Shelf Demand shall include Registrable Securities with an aggregate principal
amount of no less than the lesser of (i) the aggregate principal amount of
Registrable Securities held by the Initial Purchasers at such time and (ii)
$50,000,000.00. In that case, the Obligors will use their commercially
reasonable efforts to (a) file the Shelf Registration Statement within 75 days
of receipt of the Shelf Demand, (b) cause the Shelf Registration Statement to be
declared effective under the Securities Act by the 165th day after they receive
the Shelf Demand and (c) maintain the effectiveness of the Shelf Registration
Statement during the Shelf Effectiveness Period (defined below).
3
The Obligors agree to use their commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective until the earliest
of (i) two years from the date the Shelf Registration Statement is declared
effective under the Securities Act or (ii) such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (the
"Shelf Effectiveness Period"). The Obligors further agree to supplement or amend
the Shelf Registration Statement and the related Prospectus if required by the
rules, regulations or instructions applicable to the registration form used by
the Obligors for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their commercially reasonable
efforts to cause any such amendment to become effective and such Shelf
Registration Statement and Prospectus to become usable as soon as thereafter
practicable. The Obligors agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC. The Shelf Registration Statement may cover any
securities of the Obligors in addition to the Registrable Securities.
(b) The Obligors shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(c) A Shelf Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.
(d) Without limiting the remedies available to the Holders, the
Obligors acknowledge that any failure by the Obligors to comply with their
obligations under Section 2(a) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Holders may obtain such relief as may be required to
specifically enforce the Obligors' obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) hereof, the Obligors shall as expeditiously as
reasonably possible:
(a) prepare and file with the SEC the Shelf Registration Statement
on the appropriate form under the Securities Act, which form (x) shall be
selected by the Obligors, (y) shall be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC
to be filed therewith; and use their commercially reasonable efforts to
cause such registration statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof (provided,
however, that before filing a registration statement or Prospectus or any
amendments or supplements thereto, or any free writing prospectus related
thereto, the Obligors will furnish to the Holders and to one counsel for
the Holders copies of all such documents proposed to be filed, including
all exhibits thereto, which documents will be subject to the reasonable
review and reasonable comment of such counsel, and the Obligors shall not
file any registration statement or amendment thereto, any Prospectus or
supplement thereto or any free writing prospectus related thereto to which
the Holders or their counsel shall reasonably object);
4
(b) prepare and file with the SEC such amendments, supplements and
post-effective amendments to the Shelf Registration Statement and
Prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the applicable period in accordance
with Section 2 hereof and cause each Prospectus to be supplemented by any
required Prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under
the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities;
(c) furnish to the Holders, to counsel for such Holders (which
counsel shall be selected by Holders of a majority in principal amount of
Securities covered by the Shelf Registration) and to each Underwriter of
an Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and any free writing
prospectus related thereto, in order to facilitate the sale or other
disposition of the Registrable Securities thereunder; and the Obligors
consent to the use of such Prospectus and any amendment or supplement
thereto and any free writing prospectus related thereto, in accordance
with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering and
sale of the Registrable Securities covered by and in the manner described
in such Prospectus or any amendment or supplement thereto in accordance
with applicable law;
(d) use their commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or blue
sky laws of such jurisdictions as any Holder of Registrable Securities
covered by a registration statement shall reasonably request in writing by
the time the applicable registration statement is declared effective by
the SEC; cooperate with the Holders in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc.; and do any and all other acts and things that may be reasonably
necessary or advisable to enable each Holder to complete the disposition
in each such jurisdiction of the Registrable Securities owned by such
Holder; provided that neither the Issuer nor any Guarantor shall be
required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(e) notify each Holder of Registrable Securities, and counsel for
Holders of Registrable Securities (which counsel shall be selected by
Holders of a majority in principal amount of Securities covered by the
Shelf Registration), promptly and, if requested by any such Holder or
counsel, confirm such advice in writing (i) when the Shelf Registration
Statement, any pre-effective amendments, any related Prospectus or
Prospectus supplement or any free writing prospectus related thereto has
been filed or used, when the Shelf Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to the Shelf Registration
Statement and Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of the
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of any
Obligor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of
such Registrable Securities cease to be true and correct in all material
respects or if any Obligor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event during the period the Shelf Registration
Statement is effective that makes any statement made in such registration
statement or the related Prospectus, any document incorporated by
reference therein, any free writing prospectus, or any information
conveyed to any purchaser at the time of sale to such purchaser untrue in
any material respect or that requires the making of any changes in such
registration statement or Prospectus or free writing prospectus or
incorporated document in order to make the statements therein not
misleading and (vi) of any determination by any Obligor that a
post-effective amendment to a registration statement would be appropriate;
5
(f) use their commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Shelf
Registration Statement at the earliest possible moment and provide
immediate notice to each Holder of the withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of the Shelf Registration Statement
and any post-effective amendment thereto (without any documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be issued in
such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request
at least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) upon the occurrence of any event contemplated by Section 3(e)(v)
hereof, use their commercially reasonable efforts to prepare and file with
the SEC a supplement or post-effective amendment to the Shelf Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(j) a reasonable time prior to the filing of the Shelf Registration
Statement, any Prospectus, any amendment to the Shelf Registration
Statement or amendment or supplement to a Prospectus (excluding any
document that is to be incorporated by reference into the Shelf
Registration Statement or a Prospectus after initial filing of such
registration statement), provide copies of such document to the Required
Holders of Registrable Securities and their counsel and make such of the
representatives of the Obligors as shall be reasonably requested by the
Required Holders of Registrable Securities or their counsel available for
discussion of such document; and the Obligors shall not, at any time after
initial filing of the Shelf Registration Statement, file any Prospectus,
any amendment of or supplement to the Shelf Registration Statement or a
Prospectus, (excluding any document that is to be incorporated by
reference into the Shelf Registration Statement or a Prospectus), of which
the Required Holders of Registrable Securities and their counsel shall not
have previously been advised and furnished a copy and shall give good
faith consideration to their comments thereon;
6
(k) obtain a CUSIP number for all Registrable Securities not later
than the effective date of a registration statement and ensure that the
Registrable Securities are and remain cleared through The Depository Trust
Company (and/or, at the request of the holders of a majority of the
Registrable Securities, Euroclear and Clearstream);
(l) use their commercially reasonable efforts to cause the Indenture
to be qualified under the TIA in connection with the registration of the
Registrable Securities; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA; otherwise
comply with all provisions of the TIA; and execute, and use their
commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms
and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(m) in the case of an Underwritten Offering off of the Shelf
Registration Statement, make available for inspection by a representative
of the Holders of the Registrable Securities (an "Inspector"), any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, counsel for the Underwriter, and one firm of
attorneys, at reasonable times and in a reasonable manner, all pertinent
financial and other records, documents and properties of the Obligors, and
cause the respective officers, directors and employees of the Obligors to
supply all information reasonably requested by any such Inspector,
Underwriter or attorney in connection with an Underwritten Offering off of
the Shelf Registration Statement; provided that if any such information is
identified by the Obligors as being confidential or proprietary, each
Person receiving such information shall take such actions as are
reasonably necessary to protect the confidentiality of such information to
the extent such action is otherwise not inconsistent with, an impairment
of or in derogation of the rights and interests of any Inspector, Holder
or Underwriter and shall sign customary confidentiality agreements
reasonably requested by the Obligors prior to the receipt of such
information;
(n) if reasonably requested by any Holder of Registrable Securities
covered by the Shelf Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Issuer has received
notification of the matters to be incorporated in such filing;
(o) at the request of any Holder seeking to effect a distribution of
Securities to such Holder's shareholders, partners or members (a "Partner
Distribution"), file any Prospectus supplement or post-effective
amendments and otherwise take any action necessary to amend or supplement
the Shelf Registration Statement in order to allow the Holder to
consummate the Partner Distribution and allow the shareholders, partners
or members of the Holder to freely sell the Securities received in such
Partner Distribution pursuant to such Shelf Registration Statement;
(p) deliver promptly to the Holders of Registrable Securities
included in any Shelf Registration Statement copies of all correspondence
between the SEC and the Obligors, their counsel or auditors and all
memoranda relating to discussions with the SEC or its Staff with respect
to the Shelf Registration Statement (including documents incorporated
therein by reference);
7
(q) make reasonably available, during normal business hours, their
employees and personnel and senior management for participation in up to
three road shows and other marketing efforts and meetings with rating
agencies and otherwise provide reasonable assistance to any Underwriters
in the marketing of Registrable Securities in any Underwritten Offering;
(r) take no direct or indirect action prohibited by Regulation M
under the Exchange Act;
(s) in the case of an Underwritten Offering off of the Shelf
Registration, enter into such customary agreements and take all such other
actions in connection therewith (including those reasonably requested by
the Holders of a majority in principal amount of the Registrable
Securities being sold) in order to expedite or facilitate the disposition
of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business
of the Issuer and its subsidiaries, the Shelf Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated
by reference, if any, in each case, in form, substance and scope as are
customarily made by companies to Underwriters in Underwritten Offerings of
debt securities and confirm the same if and when requested, (ii) use
commercially reasonable efforts to obtain opinions of counsel to the
Obligors (which counsel and opinions, in form, scope and substance, shall
be reasonably satisfactory to such Underwriters and their counsel)
addressed to each Underwriter of Registrable Securities, covering the
matters customarily covered in opinions requested in underwritten
offerings, (iii) use commercially reasonable efforts to obtain "comfort"
letters from the independent certified public accountants of the Obligors
(and, if necessary, any other certified public accountant of any
subsidiary of the Issuer or any Guarantor, or of any business acquired by
the Issuer or any Guarantor for which financial statements and financial
data are or are required to be included in the Shelf Registration
Statement) addressed to each Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings; (iv) in connection with any Underwritten Offering, retain a
qualified independent Underwriter to the extent required by the rules and
regulations of the FINRA and pay the fees and expenses of such QIU; and
(v) deliver such documents and certificates as may be reasonably requested
by the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Obligors made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement;
(t) take all reasonable action to ensure that any free writing
prospectus utilized in connection with any Shelf Registration Statement
complies in all material respects with the Securities Act, is filed in
accordance with the Securities Act to the extent required thereby, is
retained in accordance with the Securities Act to the extent required
thereby and, when taken together with the related Prospectus, Prospectus
supplement and related documents, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(u) in connection with any Underwritten Offering, if at any time the
information conveyed to a purchaser at the time of sale includes any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, promptly file
with the SEC such amendments or supplements to such information as may be
necessary so that the statements as so amended or supplemented will not,
in light of the circumstances, be misleading.
8
To the extent that the Issuer or Holdings (or any other Obligors) is
a well-known seasoned issuer (as defined in Rule 405 under the Securities Act)
(a "WKSI") at the time any Shelf Demand is submitted to any of the Obligors, and
such Shelf Demand requests that the Obligors file an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an
"Automatic Shelf Registration Statement") on Form S-3, the Obligors shall file
an Automatic Shelf Registration Statement which covers those Registrable
Securities which are requested to be registered. The Obligors shall use their
commercially reasonable best efforts to remain a WKSI (and not become an
ineligible issuer (as defined in Rule 405 under the Securities Act)) during the
period during which such Automatic Shelf Registration Statement is required to
remain effective. If the Obligors do not pay the filing fee covering the
Registrable Securities at the time the Automatic Shelf Registration Statement is
filed, the Obligors agree to pay such fee at such time or times as the
Registrable Securities are to be sold. If the Automatic Shelf Registration
Statement has been outstanding for at least three years, at the end of the third
year the Obligors shall re-file a new Automatic Shelf Registration Statement
covering the Registrable Securities. If at any time when the Obligors are
required to re-evaluate their WKSI status the Obligors determine that neither
the Issuer nor Holdings is a WKSI, the Obligors shall use their commercially
reasonable best efforts to re-file the Shelf Registration Statement on Form S-3
or F-3 and, if such form is not available, Form S-1 or F-1 and keep such
registration statement effective during the period during which such
registration statement is required to be kept effective.
With respect to the Shelf Registration Statement, the Obligors may
require each Holder of Registrable Securities to furnish to the Issuer such
information regarding such Holder (including, without limitation, a customary
selling Holder questionnaire) and the proposed disposition by such Holder of
such Registrable Securities as the Obligors may from time to time reasonably
request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Obligors of the happening of any event of the kind described
in Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof and, if so directed by
the Obligors, such Holder will deliver to the Obligors all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities that is current at the
time of receipt of such notice.
If the Obligors shall give any such notice to suspend the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement, the Obligors shall extend the period during which such registration
statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions.
The Obligors may give any such notice only twice during any 365-day period and
any such suspensions shall not exceed 90 days per 365-day period for all
extensions.
The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Required Holders of the
Registrable Securities included in such offering with the Issuer's consent, not
to be unreasonably withheld.
9
4. Indemnification and Contribution. The Obligors, jointly and
severally, agree to indemnify and hold harmless each Holder, their respective
affiliates, directors; officers, employees, fiduciaries, agents, shareholders,
partners, members, advisors, attorneys, representatives and each Person, if any,
who controls any Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all out-of-pocket
losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or any Prospectus, any preliminary Prospectus, any
amendment or supplement to any of the foregoing, or any free writing prospectus
utilized in connection with any of the foregoing, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or any untrue
statement or alleged untrue statement of a material fact in the information
conveyed to any purchaser at the time of the sale to such purchaser, or the
omission or alleged omission to state therein a material fact required to be
stated therein, and the Obligors will reimburse any such indemnified party for
any reasonable legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim as such
expenses are incurred, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Holder furnished to the Issuer in writing
through the Initial Purchasers or any selling Holder expressly for use therein.
In connection with any Underwritten Offering permitted by Section 3, the
Obligors, jointly and severally, will also indemnify the Underwriters, if any,
selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) generally to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any registration
statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, the Guarantors and the other selling Holders, their
respective affiliates, the directors of the Obligors, each officer of the
Obligors who signed the Shelf Registration Statement and each Person, if any,
who controls the Issuer, the Guarantors, the Initial Purchasers and any other
selling Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the Issuer
in writing by such Holder expressly for use in the Shelf Registration Statement
and any Prospectus; provided, that the liability of each Holder hereunder shall
be limited to the proportion of any such losses, claims, damages and liabilities
which is equal to the proportion that the public offering price of the
Securities sold by such Holder under such registration statement bears to the
total public offering price of all Securities sold thereunder, but not to exceed
the net proceeds received by such Holder from the sale of Registrable Securities
covered by such registration statement.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 4 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 4. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 4
10
that the Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed in writing to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified
Person shall have reasonably concluded that there may be legal defenses
available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm (x) for any
Holder, its affiliates, directors and officers and any control Persons of such
Holder shall be designated in writing by the Required Holders and (y) in all
other cases shall be designated in writing by the Issuer. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment, as required by paragraphs (a) and (b) of this Section 4.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for the reasonable fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Indemnifying Person of such
request; (ii) the Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement and
(iii) such Indemnified Person shall have given the Indemnifying Person at least
30 days prior written notice of its intention to settle. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Obligors and the Holders from the issuance of the
Securities to the Initial Purchasers on the Closing Date (the benefit to the
Obligors being the proceeds received by them on the Closing Date from the
issuance of the Securities and the benefit to the Holders being the fees
received by them on the Closing Date in connection with the issuance of the
Securities), or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Obligors on the one hand and the Holders on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Obligors on the one hand and the Holders on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Obligors or by
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
11
(e) The Obligors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
a party as a result of the losses, claims, damages and liabilities referred to
in paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such party
in connection with any such action or claim. Notwithstanding the provisions of
this Section 4, in no event shall a Holder be required to contribute any amount
in excess of the amount by which the total price at which the Securities sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 4 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 4 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers, their respective affiliates or any Person controlling
the Initial Purchasers, or by or on behalf of the Obligors, their respective
affiliates or the officers or directors of or any Person controlling the
Obligors and (iii) any sale of Registrable Securities pursuant to the Shelf
Registration Statement.
5. General.
(a) No Inconsistent Agreements. The Obligors represent, warrant and
agree that (i) the rights granted to the Initial Purchasers hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of any other outstanding securities issued or guaranteed by the Issuer
or any Guarantor under any other agreement and (ii) neither the Issuer nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Obligors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 5(b) shall be by a writing executed by each of
the parties hereto.
12
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuer by means of a notice given in accordance with the provisions of this
Section 5(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Note Purchase Agreement; (ii) if to the
Obligors, initially at the Issuer's address set forth in the Note Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 5(c); and (iii) to such other
persons at their respective addresses as provided in the Note Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 5(c). All such notices and communications
shall be deemed to have been duly given at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Rule 144. The Obligors covenant that (i) so long as the Issuer
and/or Holdings remains subject to the reporting provisions of the Exchange Act,
it or they, as applicable, will timely file the reports required to be filed by
them under the Securities Act or the Exchange Act (including, but not limited
to, the reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 under the Securities Act), and (ii) they will take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (A) Rule 144 under the Securities
Act, as such rule may be amended from time to time, or (B) any similar rule or
regulation hereafter adopted by the SEC.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and the
respective successors, personal representatives and assigns of the parties
hereto, whether so expressed or not, so long as such successors, personal
representatives and assigns are members of the GSMP Group. If a member of the
GSMP Group shall acquire Registrable Securities from any Holder, in any manner,
whether by operation of law or otherwise, such Person shall promptly notify the
Obligors, and such Registrable Securities acquired from such Holder shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(g) Jurisdiction. With respect to any suit, action or proceeding
("Proceeding") arising out of or relating to this Agreement each of the parties
hereto hereby irrevocably (i) submits to the exclusive jurisdiction of the
United States District Court for the Southern District of New York, the United
States District Court for the District of Delaware, or any state court located
in the State of Delaware, County of Newcastle (the "Selected Courts") and waives
any objection to venue being laid in the Selected Courts whether based on the
grounds of forum non-conveniens or otherwise and hereby agrees not to commence
any such Proceeding other than before one of the Selected Courts; provided,
however, that a party may commence any Proceeding in a court other than a
Selected Court solely for the purpose of enforcing an order or judgment issued
by one of the Selected Courts and (ii) consents to service of process in any
Proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, or by recognized international express carrier or delivery
service, to the parties at their respective addresses referred to in Section
5(c) hereof; provided, however, that nothing herein shall affect the right of
any party hereto to serve process in any other manner permitted by law.
13
(h) WAIVER OF TRIAL BY JURY. WITH RESPECT TO ANY PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE
WAIVED, WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN
WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREE THAT ANY OF THEM MAY
FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO
THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN
A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
(i) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions and other equitable remedies to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any of the Selected Courts, this being in addition to any other remedy to which
they are entitled at law or in equity. Any requirements for the securing or
posting of any bond with respect to such remedy are hereby waived by each of the
parties hereto. Each party further agrees that, in the event of any action for
an injunction or other equitable remedy in respect of such breach or enforcement
of specific performance, it will not assert the defense that a remedy at law
would be adequate.
(j) Other Acts. Each party hereto shall do and perform or cause to
be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(l) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(m) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Obligors and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
TRINITY ACQUISITION LIMITED
By:______________________________
Name:
Title:
WILLIS GROUP HOLDINGS LIMITED
By:______________________________
Name:
Title:
WILLIS INVESTMENT UK HOLDINGS, LTD.
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
By: ______________________________
Name:
Title:
WILLIS NORTH AMERICA INC.
By:______________________________
Name:
Title:
[Signature Page - Registration Rights Agreement]
GSMP V ONSHORE INTERNATIONAL, LTD.
By:______________________________
Name:
Title:
GSMP V OFFSHORE INTERNATIONAL, LTD.
By:______________________________
Name:
Title:
GSMP V INSTITUTIONAL INTERNATIONAL, LTD.
By:______________________________
Name:
Title:
[Signature Page - Registration Rights Agreement]