Exhibit 4.2
EXECUTION VERSION
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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
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TABLE OF CONTENTS
Page
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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
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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
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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
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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
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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.
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"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
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(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;
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(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;
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(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.
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"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:
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(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;
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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
<PAGE>
"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
<PAGE>
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
<PAGE>
"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
<PAGE>
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
<PAGE>
(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.
12
<PAGE>
"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
<PAGE>
"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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
"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
<PAGE>
"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
<PAGE>
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
<PAGE>
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
<PAGE>
"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
<PAGE>
(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
<PAGE>
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.
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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.
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<PAGE>
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
<PAGE>
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.
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<PAGE>
(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
<PAGE>
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
<PAGE>
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.
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<PAGE>
(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;
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<PAGE>
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
<PAGE>
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
<PAGE>
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
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