exv4w1
Exhibit 4.1
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY,
Issuer
WILLIS NETHERLANDS HOLDINGS B.V.
WILLIS INVESTMENT UK HOLDINGS LIMITED
TA I LIMITED
TRINITY ACQUISITION PLC
WILLIS GROUP LIMITED
WILLIS NORTH AMERICA INC.,
Guarantors
and
THE BANK OF NEW YORK MELLON,
Trustee
Indenture
Dated as of
March 17, 2011
Senior Debt Securities
Table of Contents
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 1.01 Definitions |
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1 |
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SECTION 1.02 Compliance Certificates and Opinions |
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7 |
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SECTION 1.03 Form of Documents Delivered to Trustee |
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7 |
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SECTION 1.04 Acts of Holders |
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8 |
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SECTION 1.05 Notices, etc. to Trustee and Issuer |
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9 |
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SECTION 1.06 Notice to Holders; Waiver |
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9 |
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SECTION 1.07 Conflict with Trust Indenture Act |
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9 |
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SECTION 1.08 Effect of Headings and Table of Contents |
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9 |
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SECTION 1.09 Successors and Assigns |
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9 |
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SECTION 1.10 Separability Clause |
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10 |
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SECTION 1.11 Benefits of Indenture |
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10 |
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SECTION 1.12 Governing Law; Waiver of Trial by Jury |
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10 |
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SECTION 1.13 Legal Holidays |
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10 |
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SECTION 1.14 Submission to Jurisdiction |
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10 |
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SECTION 1.15 Appointment of Agent for Service of Process |
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11 |
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SECTION 1.16 Indemnification of Judgment Currency |
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11 |
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ARTICLE TWO
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SECURITY FORMS
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SECTION 2.01 Forms Generally |
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11 |
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SECTION 2.02 Form of Trustees Certificate of Authentication |
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12 |
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SECTION 2.03 Securities in Global Form |
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12 |
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ARTICLE THREE
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THE SECURITIES
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SECTION 3.01 Amount Unlimited; Issuable in Series |
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12 |
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SECTION 3.02 Denominations |
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14 |
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SECTION 3.03 Execution, Authentication, Delivery and Dating |
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14 |
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SECTION 3.04 Temporary Securities |
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16 |
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SECTION 3.05 Registration, Registration of Transfer and Exchange Global Securities Representing the Securities |
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16 |
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SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities |
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18 |
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SECTION 3.07 Payment of Interest; Interest Rights Preserved |
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19 |
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SECTION 3.08 Persons Deemed Owners |
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20 |
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SECTION 3.09 Cancellation |
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20 |
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SECTION 3.10 Computation of Interest |
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20 |
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SECTION 3.11 CUSIP Numbers |
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20 |
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ARTICLE FOUR
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[INTENTIONALLY OMITTED]
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ARTICLE FIVE
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SATISFACTION AND DISCHARGE; DEFEASANCE
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SECTION 5.01 Satisfaction and Discharge of Securities of any Series |
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21 |
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SECTION 5.02 Option to Effect Legal Defeasance or Covenant Defeasance |
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22 |
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SECTION 5.03 Legal Defeasance and Discharge |
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22 |
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SECTION 5.04 Covenant Defeasance |
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22 |
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SECTION 5.05 Conditions to Legal or Covenant Defeasance |
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22 |
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SECTION 5.06 Survival of Certain Obligations |
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24 |
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SECTION 5.07 Application of Trust Money |
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24 |
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SECTION 5.08 Repayment of Moneys Held by Paying Agent |
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24 |
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SECTION 5.09 Reinstatement |
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24 |
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ARTICLE SIX
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REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
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SECTION 6.01 Events of Default |
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25 |
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SECTION 6.02 Acceleration of Maturity; Rescission and Annulment |
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26 |
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SECTION 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee |
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26 |
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SECTION 6.04 Trustee May File Proofs of Claim |
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27 |
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SECTION 6.05 Trustee May Enforce Claims without Possession of Securities |
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28 |
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SECTION 6.06 Application of Money Collected |
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28 |
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SECTION 6.07 Limitation on Suits |
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28 |
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SECTION 6.08 Unconditional Right of Holders to Receive Principal, Premium and Interest |
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29 |
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SECTION 6.09 Restoration of Rights and Remedies |
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29 |
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SECTION 6.10 Rights and Remedies Cumulative |
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29 |
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SECTION 6.11 Delay or Omission Not Waiver |
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29 |
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SECTION 6.12 Control by Holders |
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29 |
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SECTION 6.13 Waiver of Past Defaults |
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30 |
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SECTION 6.14 Undertaking for Costs |
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30 |
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SECTION 6.15 Waiver of Stay or Extension Laws |
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30 |
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ARTICLE SEVEN
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THE TRUSTEE
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SECTION 7.01 Certain Duties and Responsibilities |
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30 |
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SECTION 7.02 Notice of Defaults |
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31 |
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SECTION 7.03 Certain Rights of Trustee |
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32 |
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SECTION 7.04 Not Responsible for Recitals or Issuance of Securities |
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33 |
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SECTION 7.05 May Hold Securities |
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33 |
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SECTION 7.06 Money Held in Trust |
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33 |
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SECTION 7.07 Compensation and Reimbursement |
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33 |
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SECTION 7.08 Disqualification; Conflicting Interests |
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34 |
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SECTION 7.09 Corporate Trustee Required; Eligibility |
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34 |
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SECTION 7.10 Resignation and Removal; Appointment of Successor |
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34 |
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SECTION 7.11 Acceptance of Appointment by Successor |
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35 |
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SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business |
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36 |
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SECTION 7.13 Preferential Collection of Claims Against Issuer |
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36 |
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ARTICLE EIGHT
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HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
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SECTION 8.01 Issuer to Furnish Trustee Names and Addresses of Holders |
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37 |
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SECTION 8.02 Preservation of Information; Communications to Holders |
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37 |
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SECTION 8.03 Reports by Trustee to Holders |
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37 |
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ARTICLE NINE
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 9.01 Merger, Consolidation, etc. Only on Certain Terms |
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38 |
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SECTION 9.02 Successor Corporation Substituted |
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38 |
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ARTICLE TEN
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SUPPLEMENTAL INDENTURES
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3
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SECTION 10.01 Supplemental Indentures without Consent of Holders |
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38 |
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SECTION 10.02 Supplemental Indentures with Consent of Holders |
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39 |
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SECTION 10.03 Execution of Supplemental Indentures |
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40 |
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SECTION 10.04 Effect of Supplemental Indentures |
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40 |
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SECTION 10.05 Conformity with Trust Indenture Act |
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40 |
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SECTION 10.06 Reference in Securities to Supplemental Indentures |
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41 |
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SECTION 10.07 Notice of Supplemental Indenture |
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41 |
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ARTICLE ELEVEN
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COVENANTS
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SECTION 11.01 Payment of Principal, Premium and Interest |
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41 |
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SECTION 11.02 Maintenance of Office or Agency |
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41 |
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SECTION 11.03 Money for Securities Payments to Be Held in Trust |
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41 |
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SECTION 11.04 Corporate Existence |
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42 |
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SECTION 11.05 Payment of Taxes and Other Claims |
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43 |
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SECTION 11.06 Maintenance of Properties |
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43 |
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SECTION 11.07 Waiver of Certain Covenants |
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43 |
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SECTION 11.08 Statement by Officers as to Default |
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43 |
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SECTION 11.09 Reports by the Issuer |
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43 |
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SECTION 11.10 Further Assurances |
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44 |
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ARTICLE TWELVE
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REDEMPTION OF SECURITIES
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SECTION 12.01 Applicability of Article |
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44 |
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SECTION 12.02 Election to Redeem; Notice to Trustee |
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44 |
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SECTION 12.03 Selection by Trustee of Securities to Be Redeemed |
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45 |
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SECTION 12.04 Notice of Redemption |
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45 |
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SECTION 12.05 Deposit of Redemption Price |
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45 |
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SECTION 12.06 Securities Payable on Redemption Date |
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46 |
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SECTION 12.07 Securities Redeemed in Part |
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46 |
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SECTION 12.08 Securities No Longer Outstanding After Notice to Trustee and Deposit of Cash |
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46 |
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ARTICLE THIRTEEN
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SINKING FUNDS
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SECTION 13.01 Applicability of Article |
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46 |
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SECTION 13.02 Satisfaction of Sinking Fund Payments with Securities |
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47 |
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SECTION 13.03 Redemption of Securities for Sinking Fund |
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47 |
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ARTICLE FOURTEEN
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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SECTION 14.01 Exemption from Individual Liability |
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47 |
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ARTICLE FIFTEEN
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MEETINGS OF HOLDERS OF SECURITIES
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SECTION 15.01 Purposes of Meetings |
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48 |
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SECTION 15.02 Call of Meetings by Trustee |
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48 |
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SECTION 15.03 Call of Meetings by Issuer or Holders |
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48 |
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SECTION 15.04 Qualification for Voting |
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49 |
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SECTION 15.05 Quorum; Adjourned Meetings |
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49 |
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SECTION 15.06 Regulations |
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49 |
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SECTION 15.07 Voting Procedure |
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50 |
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SECTION 15.08 Written Consent in Lieu of Meetings |
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50 |
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SECTION 15.09 No Delay of Rights by Meeting |
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50 |
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4
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ARTICLE SIXTEEN
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SECTION 16.01 Guarantee |
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50 |
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SECTION 16.02 Limitation on Liability |
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52 |
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SECTION 16.03 Benefits Acknowledged |
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52 |
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SECTION 16.04 Successors and Assigns |
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52 |
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SECTION 16.05 No Waiver |
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53 |
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SECTION 16.06 Modification |
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53 |
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ARTICLE SEVENTEEN
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MISCELLANEOUS
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SECTION 17.01 Counterparts |
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53 |
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Reconciliation and Tie of this Indenture,
relating to Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939, as amended
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Trust Indenture Act Section |
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Indenture Section |
310 (a)(1) |
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7.09 |
(a)(2) |
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7.09 |
(a)(3) |
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Not applicable |
(a)(4) |
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Not applicable |
(b) |
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7.08, 7.10 |
311 (a) |
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7.13 |
(b) |
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7.13 |
312 (a) |
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8.01, 8.02(a) |
(b) |
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8.02(b) |
(c) |
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8.02(c) |
313 (a) |
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8.03 |
(b) |
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8.03 |
(c) |
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8.03 |
(d) |
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8.03 |
314 (a) |
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11.09 |
(a)(4) |
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11.08 |
(b) |
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Not applicable |
(c)(1) |
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1.02 |
(c)(2) |
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1.02 |
(c)(3) |
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Not applicable |
(d) |
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Not applicable |
(e) |
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1.02 |
315 (a) |
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7.01(a) |
(b) |
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7.02 |
(c) |
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7.01(b) |
(d)(3) |
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7.01 |
(e) |
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6.14 |
316 (a)(1)(A) |
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6.12 |
(a)(1)(B) |
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6.13 |
(a)(2) |
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Not applicable |
(b) |
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6.08 |
317 (a)(1) |
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6.03 |
(a)(2) |
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6.04 |
(b) |
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11.03 |
318 (a) |
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1.07 |
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NOTE: |
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This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture. |
5
INDENTURE,
dated as of March 17, 2011, among WILLIS GROUP HOLDINGS PUBLIC LIMITED
COMPANY, a company organized and existing under the laws of Ireland, as issuer, (the Issuer),
WILLIS NETHERLANDS HOLDINGS, B.V., a company organized under the laws of the Netherlands, WILLIS
INVESTMENT UK HOLDINGS LIMITED, a company organized and existing under the laws of England and
Wales, TA I LIMITED, a company organized and existing under the laws of England and Wales, TRINITY
ACQUISITION PLC, a company organized and existing under the laws of England and Wales, WILLIS GROUP
LIMITED, a company organized and existing under the laws of England and Wales and WILLIS NORTH
AMERICA INC., a Delaware corporation, as guarantors (collectively, the Guarantors), and The Bank
of New York Mellon, a New York banking corporation, as trustee (the Trustee).
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured senior debentures, notes or other evidences of
indebtedness (the Securities), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Issuer and the
Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act or by Commission
rule under the Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP; and
(d) the words herein, hereof and hereunder and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in that Article.
Act when used with respect to any Holder, has the meaning specified in Section 1.04.
1
Affiliate means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. 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.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 3.03 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Authorized Newspaper shall mean a newspaper of general circulation in the Borough of
Manhattan, The City of New York, and customarily published on each Business Day, currently expected
to be The Wall Street Journal (National Edition). Where successive publications are required to be
made in an Authorized Newspaper, the successive publications may be made in the same or different
newspapers meeting the foregoing requirements and in each case on any Business Day.
Bankruptcy Law means (i) any and all relevant provisions of the Companies Act of 1963-2009
of Ireland, including but not limited to Part IV of the Companies Act 1963 of Ireland and Section 2
of the Companies (Amendment) Act 1990 of Ireland, as supplemented or amended, together will all
rules, regulations and instruments made thereunder and applicable Irish law relating to bankruptcy,
insolvency, winding up, court protection, administration, receivership or other similar matters,
(ii) any and all relevant provisions of the Bankruptcy Code of the Netherlands
(Faillissementswet), as supplemented or amended, together will all rules, regulations and
instruments made thereunder and applicable Dutch law relating to bankruptcy, insolvency, winding
up, administration, receivership or other similar matters, (iii) the U.K. Insolvency Act 1986, as
supplemented or amended, together with all rules, regulations and instruments made thereunder and
applicable laws of England and Wales relating to bankruptcy, insolvency, winding up,
administration, receivership and other similar matters and (iv) Title 11, United States Bankruptcy
Code of 1978 as amended, or any similar United States federal or state law relating to relief of
debtors or any amendment to, succession to or change in any such law.
Board of Directors means either the board of directors of the Issuer or any committee of
that board duly appointed by the board of directors and authorized to act hereunder.
Board Resolution means a copy of a resolution or resolutions certified by the Secretary or
an Assistant Secretary of the Issuer to have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification and delivered to the Trustee.
Business Day when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
Capital Stock means, with respect to any Person, any shares or other equivalents (however
designated) of any class of corporate stock or partnership interests or any other participations,
rights, warrants, options or other interests in the nature of an equity interest in such Person,
including, without limitation, preferred stock and any debt security convertible or exchangeable
into such equity interest.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
Corporate Trust Office means the principal corporate trust office of the Trustee in New
York, New York at which at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at 101 Barclay Street, Floor 8W, New York, New York
10286.
2
Corporation includes corporations, associations, companies and business trusts.
Custodian means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
Defaulted Interest has the meaning specified in Section 3.07.
Depositary has the meaning specified in Section 3.01.
Dollar or $ means a dollar or other equivalent unit in such coin or currency of the United
States as at the time of payment is legal tender for the payment of public and private debts.
Event of Default has the meaning specified in Section 6.01.
GAAP shall mean generally accepted accounting principles in the United States of America set
forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession as in effect from time to time.
Global Security has the meaning specified in Section 2.03.
Guarantee means the guarantee by any Guarantor of the Issuers Indenture obligations.
Guaranteed Obligations has the meaning specified in Section 16.01.
Guarantor means each of Willis Netherlands Holdings B.V., a company organized under the laws
of the Netherlands, Willis Investment UK Holdings Limited, a company organized and existing under
the laws of England and Wales, TA I Limited, a company organized and existing under the laws of
England and Wales, Trinity Acquisition plc, a company organized and existing under the laws of
England and Wales, Willis Group Limited, a company organized and existing under the laws of England
and Wales, Willis North America Inc., a Delaware corporation, and any other subsidiary of Willis
Group Holdings Public Limited Company which becomes a guarantor of the Issuers Indenture
obligations.
Hedging Obligation means, with respect to any Person, the obligations of such Person under
(i) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate
or commodity cap agreements and currency exchange, interest rate or commodity collar agreements and
(ii) other agreements or arrangements designed to protect such Person against fluctuations in
currency exchange, interest rates or commodity prices.
Holder means a Person in whose name a Security is registered in the Security Register.
Indebtedness means, with respect to any Person, (a) the principal of and premium (if any) in
respect of any obligation of such Person for money borrowed, and any obligation evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such Person is responsible
or liable; (b) all obligations of such Person as lessee under leases required to be capitalized on
the balance sheet of the lessee under GAAP and leases of property or assets made as part of any
sale and leaseback transaction entered into by such Person; (c) all obligations of such Person
issued or assumed as the deferred purchase price of any property, all conditional sale obligations
of such Person and all obligations of such Person under any title retention agreement (but
excluding trade accounts payable or similar obligations to a trade creditor arising in the ordinary
course of business); (d) all obligations of such Person for the reimbursement of any obligor on any
letter of credit, bankers acceptance or similar credit transaction; (e) all obligations of the
type referred to in clauses (a) through (d) of other Persons and all dividends of other Persons for
the
3
payment of which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of business); (f) all
obligations of the type referred to in clauses (a) through (d) of other Persons secured by any Lien
on any property of such Person (whether or not such obligation is assumed by such Person); and (g)
to the extent not otherwise included in this definition Hedging Obligations of such Person.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the form and terms of particular series of
Securities established as contemplated by Section 3.01.
Interest when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Issuer means Willis Group Holdings Public Limited Company, a company organized and existing
under the laws of Ireland, until a successor Person shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter Issuer shall mean such successor Person.
Issuer Request or Issuer Order means a written request or order signed in the name of the
Issuer by its Chairman of the Board, its Chief Executive Officer, its President, its Vice
President, its Chief Financial Officer or a Member of the Sealing Committee and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
Legal Defeasance has the meaning specified in Section 5.03.
Lien means, with respect to any property of any Person, any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge,
encumbrance, preference, priority or other security agreement or preferential arrangement of any
kind or nature whatsoever on or with respect to such property (including any capital lease
obligation, conditional sale or other title retention agreement having substantially the same
economic effect as any of the foregoing or any sale and leaseback transaction).
Maturity when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Obligation means any principal, premium, interest (including interest accruing subsequent to
a bankruptcy or other similar proceeding whether or not such interest is an allowed claim
enforceable against the Issuer in a bankruptcy case under Federal Bankruptcy Law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant to the terms of
the documentation governing any Indebtedness.
Officers Certificate means a certificate signed by the Chairman of the Board, the Chief
Executive Officer, the President, a Vice President, the Chief Financial Officer, a Member of the
Sealing Committee, the Treasurer or an Assistant Treasurer of the Issuer or any Guarantor, as
applicable, and delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Issuer or
any Guarantor, as applicable, and who shall be acceptable to the Trustee.
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Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02.
Outstanding when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities or portions thereof for whose payment or redemption money or, as provided
in Section 5.05 hereof, U.S. Government Obligations, in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or,
except for purposes of Section 5.01, set aside and segregated in trust by the Issuer (if the
Issuer shall act as its own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose
hands such Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder or whether a quorum is present at a meeting of Holders of Securities, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon acceleration of the maturity thereof pursuant to Section 6.01, (ii) the
principal amount of a Security denominated in one or more foreign currencies which shall be deemed
to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case
of a Security described in Clause (i) above, of the amount determined as provided in such Clause);
and (iii) Securities owned by the Issuer or any other obligor upon the Securities or any Affiliate
of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon such determination as
to the presence of a quorum, only Securities which a Responsible Officer of the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees
right so to act with respect to such Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any Affiliate of the Issuer or of such other obligor.
Paying Agent means any Person authorized by the Issuer to pay the principal of (and premium,
if any) or interest on any Securities on behalf of the Issuer.
Person means any individual, corporation, partnership, joint venture, joint-stock company,
limited liability company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment when used with respect to the Securities of any series, means the place or
places where the principal of (and premium, if any) and interest on the Securities of that series
are payable as specified as contemplated by Section 3.01.
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Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Principal of a debt security, including any Security, on any day and for any purpose means
the amount (including, without limitation, in the case of an Original Issue Discount Security, any
accrued original issue discount, but excluding interest) that is payable with respect to such debt
security as of such date and for such purpose (including, without limitation, in connection with
any sinking fund, upon any redemption at the option of the Issuer, upon any purchase or exchange at
the option of the Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
Principal Amount of a debt security, including any Security, means the principal amount as
set forth on the face of such debt security.
Redemption Date when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price when used with respect to any Security to be redeemed, means the price
(exclusive of accrued interest, if any) at which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.01.
Responsible Officer when used with respect to the Trustee, means any officer assigned to and
working in the corporate trust department of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Security Register and Security Registrar have the respective meanings specified in Section
3.05.
Significant Subsidiary means any Subsidiary of the Issuer that would be a significant
subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act of 1933, as amended, as such regulation is in effect on the date hereof.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
Stated Maturity when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary means, with respect to any Person, (i) 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 (ii) any partnership, joint venture, limited liability company or similar entity of
which (x) 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
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controlled, directly or indirectly, by such Person or one or more 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 (y) such Person or any wholly owned Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended, and as in force at
the date as of which this instrument was executed, except as provided in Section 10.05; provided,
however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture
Act means, with respect to the Securities of any series issued after such date, the Trust
Indenture Act of 1939 as so amended.
U.S. Government Obligations has the meaning specified in Section 5.05.
Vice President when used with respect to the Issuer or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
SECTION 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Issuer or any Guarantor to the Trustee to take any
action under any provision of this Indenture, the Issuer or such Guarantor shall furnish to the
Trustee an Officers Certificate stating that all conditions precedent (including any covenant
compliance with which constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel such action is authorized or permitted by this Indenture and all such
conditions precedent (including any covenants compliance with which constitutes a condition
precedent), if any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than annual certificates provided pursuant to Section 11.08) shall
include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may
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certify or give an opinion with respect to some matters and one or more other such Persons as
to other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Issuer or any Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or Opinion of Counsel, or representations by
counsel, unless such officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel or representation by
counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Issuer or such Guarantor stating that the
information with respect to such factual matters is in the possession of the Issuer or such
Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
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 or by the record of the Holders voting in favor thereof at any meeting of
such Holders duly called and held in accordance with the provisions of Article Fifteen; and, except
as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Issuer or any Guarantor. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the
Holders signing such instrument or instruments or voting at such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee, the Issuer and any Guarantor if made in the
manner provided in this Section. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 15.07 and the record so proved shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee, the Issuer and any Guarantor, if
made in the manner provided in this Section.
(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 a certificate of a 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, or may be proved in
such other manner as shall be deemed sufficient by the Trustee. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. 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 which the Trustee deems sufficient.
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(c)The ownership of Securities shall be proved by the Security Register. |
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Security.
(e) The Issuer or the Trustee, as applicable, may set a date for the purpose of determining
the Holders of Securities entitled to consent, vote or take any other action referred to in this
Section 1.04, which date shall be not less than 10 days nor more than 60 days prior to the taking
of the consent, vote or other action.
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SECTION 1.05 Notices, etc. to Trustee and Issuer.
Any request, demand, authorization, direction, notice, consent, waiver or Act of the Holders
or other document provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Issuer or any Guarantor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, attention: Corporate Trust Department, and, unless otherwise herein
expressly provided, any such document shall be deemed to be sufficiently made, given, furnished
or filed upon its receipt by a Responsible Officer of the Trustee, or
(2) the Issuer or any Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Issuer addressed to it at:
c/o Willis Group Limited
51 Lime Street
London, EC3M 7DQ
England
or at any other address or addresses previously furnished in writing to the Trustee by the
Issuer or such Guarantor.
SECTION 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c),
such imposed duties shall control.
SECTION 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.09 Successors and Assigns.
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All covenants and agreements in this Indenture by the Issuer or any Guarantor shall bind their
successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law; Waiver of Trial by Jury.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to applicable principles of conflicts of law.
Each of the Issuer, the Guarantors and the Trustee irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Indenture or the transactions contemplated hereby.
SECTION 1.13 Legal Holidays.
Unless otherwise provided with respect to the Securities of a series, in any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any, on such Security
need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no additional interest
shall accrue with respect to the payment due on such date for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 1.14 Submission to Jurisdiction.
For the benefit of the Holders, the Issuer and each Guarantor hereby (i) irrevocably submits
to the non-exclusive jurisdiction of any New York State court or United States federal court
sitting in the Borough of Manhattan in the City of New York solely for purposes of any legal action
or proceeding arising out of or relating to the Securities or this Indenture and (ii) irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of venue of any legal action or proceeding in any New York State court or United States
federal court sitting in the Borough of Manhattan in the City of New York, and any claim that any
such action or proceedings brought in any such court has been brought in an inconvenient forum. The
Issuer and each Guarantor agrees that a final judgment in any such legal action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its
assets immunity (to the extent that any immunity may now or hereafter exist) from suit, execution,
attachment (whether in aid of execution, before judgment or otherwise) or other legal process
(whether through service or notice or otherwise), and to the extent that in any such jurisdiction
there may be attributed to itself or its assets such immunity (whether or not claimed), the Issuer
and each Guarantor irrevocably agree not to claim, and irrevocably waive, such immunity to the full
extent permitted by the laws of such jurisdiction.
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SECTION 1.15 Appointment of Agent for Service of Process.
By the execution and delivery of this Indenture, the Issuer and each Guarantor (except for
Willis North America, Inc.) hereby designates and appoints Willis North America Inc. (or any
successor corporation) as its agent to accept and acknowledge on its behalf service of any and all
process which may be served in any legal action or proceeding which may be instituted in any
Federal or State court in the Borough of Manhattan, the City of New York, arising out of or
relating to the Securities or the Guarantees or this Indenture, but for that purpose only. Service
of process upon such agent at the office of Willis North America Inc. at One World Financial
Center, 200 Liberty Street, New York, New York 10281, attention of the General Counsel, and written
notice of said service to the Issuer or such Guarantor by the Person servicing the same addressed
as provided by Section 1.05, shall be deemed in every respect effective service of process upon the
Issuer or such Guarantor, respectively, in any such legal action or proceeding, and the Issuer and
such Guarantor hereby submits to the nonexclusive jurisdiction of any such court in which any such
legal action or proceeding is so instituted. Such appointment shall be irrevocable so long as the
Holders of Securities or the Trustee shall have any rights pursuant to the terms thereof or of this
Indenture until the appointment of a successor by the Issuer or such Guarantor with the consent of
the Trustee and such successors acceptance of such appointment. The Issuer and each such Guarantor
further agree to take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and appointment of such
agent or successor.
SECTION 1.16 Indemnification of Judgment Currency.
To the fullest extent permitted by applicable law, the Issuer and each of the Guarantors shall
indemnify each Holder against any loss incurred by such Holder as a result of any judgment or order
being given or made for any amount due under any Security or Guarantee and such judgment or order
being expressed and paid in a currency (the Judgment Currency), which is other than U.S. dollars
and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar is
converted into the Judgment Currency for the purposes of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which the Holder on the date of payment of such
judgment is able to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Holder. This indemnification will constitute a separate and independent obligation
of the Issuer or each of the Guarantors, as the case may be, and will continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term spot rate of exchange
includes any premiums and costs of exchange payable in connection with the purchase of, or
conversion into, U.S. dollars.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01 Forms Generally.
The Securities of each series shall be in substantially the form established from time to time
by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security. If the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the
delivery of the Issuer Order contemplated by Section 3.03 for the authentication and delivery of
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such Securities. Any such Board Resolution or record of such action shall have attached
thereto a true and correct copy of the form of Security referred to therein approved by or pursuant
to such Board Resolution.
The Trustees certificate of authentication shall be in substantially the form set forth in
this Article.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02 Form of Trustees Certificate of Authentication.
The Trustees certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the series designated therein issued under the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, AS TRUSTEE
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By: |
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Authorized Signatory |
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SECTION 2.03 Securities in Global Form
If any Security of a series is issuable in global form (a Global Security), such Global
Security may provide that it shall represent the aggregate amount of Outstanding Securities from
time to time endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as
shall be specified in such Global Security. Any instructions by the Issuer with respect to a Global
Security, after its initial issuance, shall be in writing but need not comply with Section 1.02.
Global Securities may be issued in either temporary or permanent form. Permanent Global
Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth in an Officers Certificate, of the Issuer or established in
one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of
the series from all other Securities);
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(2) the aggregate principal amount of the Securities of such series and any limit upon the
aggregate principal amount of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other securities of the series
pursuant to Section 3.04, 3.05, 3.06, 10.06 or 12.07);
(3) the date or dates on which the principal (and premium, if any) of the Securities of the
series is payable or the method of determination thereof;
(4) the rate or rates (which may be fixed or variable), or the method of determination
thereof, at which the Securities of the series shall bear interest, if any, including the rate
of interest applicable on overdue payments of principal or interest, if different from the rate
of interest stated in the title of the Security, the date or dates from which such interest
shall accrue or the method of determination thereof, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest payable on any Interest
Payment Date;
(5) the Paying Agent or Paying Agents for the Securities of the series if other than the
Trustee;
(6) the Place of Payment of the Securities of the series;
(7) if other than U.S. Dollars, the foreign currency or currencies in which Securities of
the series shall be denominated or in which payment of the principal of (and premium, if any) or
interest on Securities of the series may be made, and the particular provisions applicable
thereto and the manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition of Outstanding in
Section 1.01 and, if applicable, the amount of the Securities of the series which entitles the
Holder of a Security of the series or its proxy to one vote for purposes of Section 15.06;
(8) the right, if any, of the Issuer to redeem the Securities of such series and the period
or periods within which, the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of the Issuer;
(9) the obligation, if any, of the Issuer to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(11) whether the Securities of the series shall be issued in whole or in part in the form
of one or more Global Securities and, in such case, the depositary (the Depositary) for such
Global Security or Securities; and the manner in which and the circumstances under which Global
Securities representing Securities of the series may be exchanged for Securities in definitive
form, if other than, or in addition to, the manner and circumstances specified in Section
3.05(b);
(12) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 6.02;
(13) if the provisions of Section 5.03 or 5.04 of this Indenture are to apply to the
Securities of the series, a statement indicating the same;
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(14) any deletions from or modifications of or additions to the Events of Default set forth
in Section 6.01 pertaining to the Securities of the series;
(15) the form of the Securities of the series; and
(16) any other terms of a particular series and any other provisions expressing or
referring to the terms and conditions upon which the Securities of that series are to be issued,
(which terms and provisions are not in conflict with the provisions of this Indenture or do not
adversely affect the rights of Holders of any other series of Securities then Outstanding);
provided, however, that the addition to or subtraction from or variation of Articles Five, Six,
Nine, Eleven, Thirteen and Sixteen (and Section 1.01 insofar as it relates to the definition of
certain terms as used in such Articles) with regard to the Securities of a particular series
shall not be deemed to constitute a conflict with the provisions of those Articles.
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officers Certificate or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time, and unless otherwise provided, a series may be reopened
for issuance of additional Securities of such series without the consent of the Holders thereof.
The Securities of all series shall rank on a parity in right of payment.
Except as modified in a Board Resolution, Officers Certificate or supplemental indenture
establishing a series of Securities, the Securities shall be fully and unconditionally guaranteed,
jointly and severally, by each Guarantor as provided in Article Sixteen.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of
the Officers Certificate setting forth the terms of the series.
SECTION 3.02 Denominations.
The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed under the common seal of the Issuer reproduced thereon and
the affixing of such seal to the Securities shall be signed and countersigned by any two directors
of the Issuer, or by a director and the Secretary of the Issuer or by any director of the Issuer
and any other officer of the Issuer authorized by the Board of Directors to sign or countersign the
affixing of such seal. The signature of any of these directors or officers on the Securities may
be manual or facsimile.
Securities bearing the signatures of individuals who were at any time the proper officers of
the Issuer shall bind such Person notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Securities or did not hold
such offices at the date of issuance of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the
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Issuer Order shall authenticate and deliver such Securities. If any Security shall be
represented by a permanent Global Security, then, for purposes of this Section and Section 3.04,
the notation of a beneficial owners interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in
connection with the original issuance of such beneficial owners interest in such permanent Global
Security.
In authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive and (subject to
Section 7.01) shall be fully protected in relying upon the documents specified in Section 314 of
the Trust Indenture Act, and, in addition:
(1) a Board Resolution relating thereto, and if applicable, an appropriate record of any
action taken pursuant to such Board Resolution, certified by the Secretary or Assistant
Secretary of the Issuer, if applicable;
(2) an executed supplemental indenture, if any; and
(3) an Opinion of Counsel which shall state:
(A) that the form and terms of such Securities have been established by or pursuant to
Board Resolutions, by a supplemental indenture or by both such resolution or resolutions and
such supplemental indenture in conformity with the provisions of this Indenture;
(B) that the supplemental indenture, if any, when executed and delivered by the Issuer,
the Guarantors and the Trustee, will constitute a valid and legally binding obligation of the
Issuer and the Guarantors;
(C) that such Securities, when authenticated and delivered by the Trustee and issued by
the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel,
will constitute the legal, valid and binding obligations of the Issuer, enforceable against
it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors rights and
remedies generally, and subject, as to enforceability, to general principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity); and
(D) that the Guarantees, when the Securities to which they relate shall have been
authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Guarantors, enforceable against them in accordance with their
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors rights and remedies generally, and subject,
as to enforceability, to general principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
If such form or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all Securities of
a series are not to be originally issued at one time, it shall not be necessary to deliver the
Board Resolution and the Officers Certificate otherwise required pursuant to Section 3.01 or the
Board Resolution and Opinion of Counsel otherwise required pursuant to this Section 3.03 at or
prior to the time of authentication of each
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Security of such series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder.
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.
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuer may execute, and
upon Issuer Order, the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, reproduced or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Issuer will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Issuer in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 3.05 Registration, Registration of Transfer and Exchange Global Securities
Representing the Securities.
(a) The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office or in any other office or agency of the Issuer in a Place
of Payment being herein sometimes referred to as the Security Register) in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the registration of
Securities and of transfers of Securities. The Trustee is hereby appointed Security Registrar for
the purpose of registering Securities and transfers of Securities as herein provided.
The Security Registrar shall maintain on behalf of the Issuer a full and complete list of names and
addresses of all Holders of Securities issued by the Issuer pursuant to this Indenture and any
indenture supplemental hereto, and the principal amount of Securities held by such Holder.
Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity.
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Except as otherwise provided in this Article Three, at the option of the Holder, Securities of
any series may be exchanged for other Securities of the same series, of any authorized
denominations and of an equal aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Issuer and each Guarantor evidencing the same debt and entitled to the
same benefits under this Indenture as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing with such signature guaranteed by
a commercial bank reasonably acceptable to the Trustee or by a member of a national securities
exchange.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Issuer or the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any
transfer.
The Issuer shall not be required (i) to issue, register the transfer of or exchange Securities
of any series during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for redemption under
Section 12.03 and ending at the close of business on the day of such mailing, or (ii) to register
the transfer of or exchange of any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
(b) If the Issuer shall establish pursuant to Section 3.01 that the Securities of a series are
to be issued in whole or in part in the form of one or more Global Securities, then the Issuer
shall execute and the Trustee shall, in accordance with Section 3.03 and the Issuer Order with
respect to such series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be represented by one or
more Global Securities, (ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee
or delivered or held pursuant to such Depositarys instruction, and (iv) unless otherwise provided
for with respect to the Securities of such series pursuant to Section 3.01, shall bear a legend
substantially to the following effect: This Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary, unless and until this Security is exchanged
in whole or in part for Securities in definitive form.
Each Depositary designated pursuant to Section 3.01 must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended (the Exchange Act), and any other applicable statute or
regulation.
If at any time the Depositary for the Securities of a series notifies the Issuer that it is
unwilling or unable to continue as Depositary for the Securities of such series or if at any time
the Depositary for Securities of a series shall no longer be a clearing agency registered and in
good standing under the Exchange Act or other applicable statute or regulation (as required by this
Section 3.05), the Issuer shall appoint a successor Depositary eligible under this Section 3.05
with respect to the Securities of such series. If a successor Depositary for the Securities of such
series is not appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such condition, the Issuer shall execute, and the
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Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or Securities.
The Issuer may at any time and in its sole discretion and subject to the procedures of the
Depositary determine that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities. In such event, the
Issuer shall execute, and the Trustee, upon receipt of an Issuer Order for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver, Securities of such
series in definitive form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such Global Security or
Securities.
If the Securities of any series shall have been issued in the form of one or more Global
Securities and if an Event of Default with respect to the Securities of such series shall have
occurred and be continuing, the Issuer may, and upon the request of the Trustee shall, promptly
execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global Security or Securities.
The Depositary for such series of Securities may surrender a Global Security for such series
of Securities in exchange in whole or in part for Securities of such series in definitive form on
such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute
and the Trustee shall authenticate and deliver, without charge:
(i) to each Person specified by the Depositary a new Security or Securities of the same
series, of any authorized denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Persons beneficial interest in the Global Security;
and
(ii) to the Depositary a new Global Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to holders thereof.
Upon the exchange of a Global Security for Securities in definitive form, such Global Security
shall be cancelled by the Trustee. Securities issued in exchange for a Global Security pursuant to
this subsection (b) shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
None of the Issuer, the Trustee nor any agent of the Issuer or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to
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save each of them and any agent of either of them harmless, then, in the absence of notice to
the Issuer or the Trustee that such Security has been acquired by a protected purchaser, the Issuer
shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become or is about to become due
and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
SECTION 3.07 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest.
At the option of the Issuer, interest on the Securities of any series that bear interest may
be paid by mailing a check to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (Defaulted Interest) shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at
the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having
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been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 3.08 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, any
Guarantor, the Trustee and any agent of the Issuer, any Guarantor, or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section 3.07) interest on
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and
none of the Issuer, any Guarantor, the Trustee or any agent of the Issuer, any Guarantor, or the
Trustee shall be affected by notice to the contrary.
SECTION 3.09 Cancellation.
All Securities surrendered for payment, redemption, conversion, registration of transfer or
exchange or for credit against any sinking fund payment or analogous obligation shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and promptly shall be
cancelled by it and, if surrendered to the Trustee, shall be promptly cancelled by it. The Issuer
or any Guarantor may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuer or any Guarantor may have acquired in any
manner whatsoever, and all Securities so delivered promptly shall be cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of in accordance with the Trustees customary procedures
unless directed by an Issuer Order. The acquisition of any Securities by the Issuer or any
Guarantor shall not operate as a redemption or satisfaction of the Indebtedness represented thereby
unless and until such Securities are surrendered to the Trustee for cancellation. Permanent Global
Securities shall not be destroyed until exchanged in full for definitive Securities or until
payment thereon is made in full.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day
months.
SECTION 3.11 CUSIP Numbers.
The Issuer in issuing the Securities may use CUSIP numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer
will promptly notify the Trustee in writing of any change in the CUSIP numbers.
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ARTICLE FOUR
[INTENTIONALLY OMITTED]
ARTICLE FIVE
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 5.01 Satisfaction and Discharge of Securities of any Series.
The Issuer shall be deemed to have satisfied and discharged the entire Indebtedness on all the
Securities of any particular series (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the Trustee, upon Issuer Request and
at the expense of the Issuer, shall execute such instruments as may be requested by the Issuer
acknowledging satisfaction and discharge of such Indebtedness, when
(a) either
(1) all Securities theretofore authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged
from such trust, as provided in Section 11.03) have been delivered to the Trustee for
cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one year, or
(C) are to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Issuer,
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and the Issuer or any Guarantor, in the case of (A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation (other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06), for principal (and premium, if
any) and interest to the date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may be; |
(b) the Issuer or any Guarantor, has paid or caused to be paid all other sums payable
hereunder by the Issuer or any Guarantor; and
(c) the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of the entire Indebtedness on all Securities of such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Issuer and each Guarantor to the Trustee under Section 7.07 or to any Authenticating Agent under
Section 3.03 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (2) of this Section, the obligations of the Trustee under Section 5.07 and the last
paragraph of Section 11.03 shall survive.
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SECTION 5.02 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at the option of its Board of Directors evidenced by a supplemental indenture
or, at any time, by a Board Resolution set forth in an Officers Certificate with respect to the
Securities of any series, unless otherwise specified pursuant to Section 3.01 with respect to a
particular series of Securities, elect to have either Section 5.03 or 5.04 be applied to all of the
Outstanding Securities of that series upon compliance with the conditions set forth below in this
Article Five.
SECTION 5.03 Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 5.02 of the option applicable to this Section 5.03,
the Issuer shall be deemed to have been discharged from its obligations with respect to all
Outstanding Securities of the particular series and any coupons appertaining thereto on the date
the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose,
such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged all the
obligations relating to the Outstanding Securities of that series, including any coupons
appertaining thereto, and the Securities of that series, including any coupons appertaining
thereto, shall thereafter be deemed to be outstanding only for the purposes of Section 5.06 and
the other Sections of this Indenture referred to below in this Section 5.03, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining thereto and this
Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged hereunder: (i) the Issuers
or any Guarantors obligations, as the case may be, with respect to Securities of such series under
Sections 3.05, 3.06, 11.02 and 11.03, (ii) rights of Holders to receive payments of the principal
of (and premium, if any) and interest, if any, on the Securities of such series as they shall
become due from time to time and other rights, duties and obligations of Holders as beneficiaries
hereof with respect to the amounts so deposited with the Trustee, (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such series shall be
deemed outstanding), (iv) this Article Five and the obligations set forth in Section 5.06 hereof
and (v) the obligations of the Issuer and each Guarantor under Section 7.07 hereof.
Subject to compliance with this Article Five, the Issuer may exercise its option under Section
5.03 notwithstanding the prior exercise of its option under Section 5.04 with respect to the
Securities of a particular series and any coupons appertaining thereto.
SECTION 5.04 Covenant Defeasance.
Upon the Issuers exercise under Section 5.02 of the option applicable to this Section 5.04,
the Issuer shall be released from any obligations under the covenants contained in Sections 11.04,
11.05 and 11.06 hereof or established pursuant to Section 3.01 or 10.01 hereof with respect to the
Outstanding Securities of the particular series on and after the date the conditions set forth
below are satisfied (hereinafter, Covenant Defeasance), and the Securities of that series and any
coupons appertaining thereto shall thereafter be deemed not Outstanding for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed Outstanding for all other
purposes hereunder (it being understood that such Securities shall not be deemed outstanding for
accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the
Outstanding Securities of that series and any coupons appertaining thereto, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a default or Event
of Default under Section 6.01(4) or any Event of Default specified pursuant to Section 3.01 or
10.01 but, except as specified above, the remainder of this Indenture and the Securities of that
series shall be unaffected thereby.
SECTION 5.05 Conditions to Legal or Covenant Defeasance.
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The following shall be the conditions to the application of either Section 5.03 or Section
5.04 to the Outstanding Securities of a particular series:
(a) the Issuer must irrevocably deposit, or cause to be irrevocably deposited, with the
Trustee for the Securities of that series, in trust, for the benefit of the Holders of the
Securities of that series, cash in the currency or currency unit in which the Securities of that
series are payable (except as otherwise specified pursuant to Section 301 for the Securities of
that series) sufficient or U.S. Government Obligations the principal of and interest on which will
be sufficient or a combination thereof sufficient to pay the principal of, premium, if any, and
interest, if any, due on the Outstanding Securities of that series and any related coupons to and
including the date of Stated Maturity, or the applicable Redemption Date, as the case may be, with
respect to the Outstanding Securities of that series and any related coupons;
(b) in the case of Legal Defeasance only, the Issuer shall have delivered to the Trustee for
the Securities of that series (1) an Opinion of Counsel confirming that, subject to customary
assumptions and exclusions, since the date on which Securities of such series were originally
issued, there has been a change in the applicable U.S. Federal income tax law, to the effect that,
and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and
exclusions, the Holders of the Outstanding Securities of that series will not recognize income,
gain or loss for U.S. Federal income tax purposes as a result of such Legal Defeasance and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred or (2) a copy of a ruling or
other formal statement or action to that effect received from or published by the U.S. Internal
Revenue Service;
(c) in the case of Covenant Defeasance only, the Issuer shall have delivered to the Trustee
for the Securities of that series an Opinion of Counsel confirming that, subject to customary
assumptions and exclusions, the Holders of the Outstanding Securities of that series will not
recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Event of Default or event which with the giving of notice or the lapse of time, or
both, would become an Event of Default with respect to the Securities of that series (other than
any event resulting from the borrowing of funds to be applied to make such deposit) shall have
occurred and be continuing on the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under any material agreement (other than this Indenture) or instrument to
which the Issuer is a party or by which the Issuer is bound; and
(f) the Issuer shall have delivered to the Trustee for the Securities of that series an
Officers Certificate and an Opinion of Counsel (which opinion of counsel may be subject to
customary assumptions and exclusions) each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied
with.
As used in this Article Five, U.S. Government Obligations means securities that are (i)
direct obligations of the United States of America for payment of which its full faith and credit
is pledged or (ii) 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 of the United States of America, which, in either
case under clause (i) or (ii), are not callable or redeemable at the option of the issuer thereof,
and will also include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specified payment of interest on or principal
of any such U.S. Government Obligation held by such custodian for the account of the holder of a
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 U.S. Government Obligation or the specific
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payment of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 5.06 Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of the Securities of a particular series
referred to in Sections 5.01, 5.02, 5.04, or 5.05, the respective obligations of the Issuer, the
Guarantors and the Trustee for the Securities of a particular series under Sections 3.03, 3.04,
3.05, 3.06, 3.09, 5.07, 5.08, 5.09 and 6.08, Article 7, and Sections 8.01, 8.02, 11.02, 11.03 and
11.04, shall survive with respect to Securities of that series until the Securities of that series
are cancelled, and thereafter the obligations of the Issuer and the Trustee for the Securities of a
particular series with respect to that series under Sections 5.08 and 7.07 shall survive. Nothing
contained in this Article Five shall abrogate any of the obligations or duties of the Trustee of
any series of Securities under this Indenture.
SECTION 5.07 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.03, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to
Sections 5.01 and 5.05 shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer or any Guarantor acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for
whose payment such money has been deposited with the Trustee.
SECTION 5.08 Repayment of Moneys Held by Paying Agent.
Any money deposited with the Trustee or any other Paying Agent remaining unclaimed by the
Holders of any Securities for two years after the date upon which the principal of or interest on
such Securities shall have become due and payable, shall be repaid to the Issuer by the Trustee or
any such other Paying Agent and such Holders shall thereafter be entitled to look to the Issuer
only as general creditors for payment thereof (unless otherwise provided by law); provided,
however, that, before the Trustee or any such other Paying Agent is required to make any such
payment to the Issuer, the Trustee may, upon the written request of the Issuer and at the expense
of the Issuer, cause to be published once in an Authorized Newspaper a notice that such money
remains unclaimed and that, after the date set forth in said notice, the balance of such money then
unclaimed will be returned to the Issuer.
SECTION 5.09 Reinstatement.
If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with
Section 5.07, by reason of any legal proceeding or by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Issuers and each Guarantors obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 5.01 or 5.05, as the case may
be, until such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 5.07 provided that, if the Issuer or any Guarantor has made
payment of principal of, or interest on any Securities because of the reinstatement of its
obligations, the Issuer or such Guarantor shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government Obligations held by the
Trustee.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
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SECTION 6.01 Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of interest upon any Security of that series when it becomes due
and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of any
Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Issuer, any
Guarantor or any Significant Subsidiary in this Indenture or any Security of that series (other
than a covenant or warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series), and continuance of such default
or breach for a period of 90 days after there has been given, by registered or certified mail,
to the Issuer or such Guarantor by the Trustee or to the Issuer or such Guarantor and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a Notice of Default hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Issuer or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or (B) a decree or order adjudging the Issuer or
any Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or
any Significant Subsidiary under any applicable Bankruptcy Law, or appointing a Custodian of the
Issuer or any Significant Subsidiary or of any substantial part of their property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Issuer or any Significant Subsidiary of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Issuer or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Bankruptcy Law, or the consent by it to
the filing of such petition or to the appointment of or taking possession by a Custodian of the
Issuer or any Significant Subsidiary of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action by
the Issuer or any Significant Subsidiary in furtherance of any such action, or the taking of any
comparable action under any foreign laws relating to insolvency; or
(7) any Guarantee shall for any reason cease to be, or shall for any reason be asserted in
writing by any Guarantor that is a Significant Subsidiary not to be, in full force and effect
and enforceable in accordance with its terms, except to the extent contemplated by the Indenture
and any such Guarantee; or
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(8) any other Event of Default provided with respect to Securities of that series.
SECTION 6.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding (other
than of a type specified in Section 6.01(5) or (6)) occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Issuer or a Guarantor (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable, anything in this Indenture or in any of the Securities of such series
to the contrary notwithstanding.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Issuer or a Guarantor and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Issuer or a Guarantor has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and any other
amounts due to the Trustee under Section 7.07 hereof;
and
(2) all Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Notwithstanding the foregoing, in the case of an Event of Default arising under Section
6.01(5) or (6), all outstanding Securities shall IPSO FACTO become due and payable without further
action or notice.
SECTION 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if
(1) default is made in the payment of interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days,
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(2) default is made in the payment of the principal of (or, premium, if any, on) any
Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due pursuant to the terms of any Security,
the Issuer, upon demand of the Trustee, will pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal, including any
sinking fund payment or analogous obligations (and premium, if any) and interest, if any, and, to
the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other amounts due to the
Trustee under Section 7.07 hereof.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Issuer or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 6.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Issuer or any other obligor upon the Securities or the property of the Issuer or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Issuer for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium, if any) and
interest, if any, owing and unpaid in respect of the Securities and to file such other papers or
documents and take such other actions, including participating as a member, voting or otherwise,
of any official committee of creditors appointed in such matter, as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such
claim and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07.
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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding except as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person or to participate as a
member, voting or otherwise, on any committee of creditors.
SECTION 6.05 Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 6.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.07;
SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if
any) and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer, its successors or assigns,
or to whomever may be so lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct.
SECTION 6.07 Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(2) the Holders of not less than a majority in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
28
(5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 6.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and
the right to institute suit for the enforcement of any such payment and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Issuer, any Guarantor the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so directed would be unjustly
prejudicial to the Holders of the Securities of such series not taking part in such direction,
or to the Holders of the Securities of any other series or would involve the Trustee in personal
liability, and
29
(3) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.13 Waiver of Past Defaults.
Subject to Section 6.02, the Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such series and its consequences, except a
default
(1) |
|
in the payment of the principal of (or premium, if any) or interest on any Security of
such series, or |
(2) |
|
in respect of a covenant or provision hereof which under Article Ten cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series
affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 6.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on
any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 6.15 Waiver of Stay or Extension Laws.
The Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and the Issuer and each
Guarantor (to the extent that they may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture but need not
verify the accuracy of any mathematical calculations or the contents thereof or whether
procedures specified by or pursuant to the provisions of this Indenture have been followed in
the preparation thereof.
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that
(1) this subsection shall not be construed to limit the effect of Subsection (a) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series, as provided in Section 6.12, relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with respect to
the Securities of such series;
(4) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; and
(5) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 7.02 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium, if any) or interest
on any Security of such series or in the payment of any sinking fund or analogous obligation
installment with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities of such series; and
provided, further, that in the case of any default of the character specified in Section 6.01(4)
with respect to Securities of such series, no such notice to Holders shall be given until at least
30 days after the occurrence thereof. For the purpose of this Section, the term default means any
event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
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SECTION 7.03 Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer or any Guarantor mentioned herein shall be
sufficiently evidenced by a Issuer Request or Issuer Order or similar document and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Issuer or any
Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Trustee shall not be deemed to have notice or knowledge of any matter unless a
Responsible Officer assigned to and working in the Trustees corporate trust department has actual
knowledge thereof or unless written notice thereof is received by the Trustee at the Corporate
Trust Office and such notice references the Securities generally, the Issuer, a Guarantor or this
Indenture. Whenever reference is made in this Indenture to an Event of Default, such reference
shall, insofar as determining any liability on the part of the Trustee is concerned, be construed
to refer only to an Event of Default of which the Trustee is deemed to have actual knowledge in
accordance with this paragraph; and
(i) the permissive right of the Trustee to take or refrain from taking any actions enumerated
in this Indenture shall not be construed as a duty;
(j) in no event shall the Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has
been advised of the likelihood of such loss or damage and regardless of the form of action;
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(k) in no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services;
(l) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder; and
(m) the Trustee may request that the Issuer deliver an Officers Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to
sign an Officers Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
SECTION 7.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificate of
authentication, shall be taken as the statements of the Issuer or the Guarantors, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by
the Issuer or the Guarantors of Securities or the proceeds thereof.
SECTION 7.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Issuer, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 7.08 and 7.13, may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 7.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder.
SECTION 7.07 Compensation and Reimbursement.
The Issuer agrees,
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder, including the costs and
expenses, including reasonable attorneys fees, of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Issuer under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee, except funds held in trust for the benefit of the Holders of particular Securities.
Without prejudice to any other rights available to the Trustee under applicable law, if the
Trustee incurs expenses or renders services after the occurrence of an Event of Default specified
in clause (5) or (6) of Section 6.01, the expenses and the compensation for the services will be
intended to constitute expenses of administration under Bankruptcy Law.
The provisions of this Section 7.07 shall survive the resignation or removal of the Trustee
and the satisfaction, discharge or termination of this Indenture.
SECTION 7.08 Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as defined in Section 310(b)
of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded
this Indenture with respect to Securities of any particular series of Securities other than that
series of Securities. Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b) of the Trust Indenture
Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder which complies with the requirements
of Section 310(a) of the Trust Indenture Act, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal or state authority and having its
Corporate Trust Office in the Borough of Manhattan, The City of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee
required by Section 7.11 shall not have been delivered to the Trustee within 10 days after the
giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
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(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08 after written request therefor by
the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and shall fail to resign
after written request therefor by the Issuer, any Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the Trustee with respect to
all Securities, or (ii) subject to Section 6.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause with respect to the Securities of one or more
series, the Issuer, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 7.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Issuer
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 7.11, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Issuer or the Holders and accepted appointment in
the manner required by Section 7.11, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event to all Holders of Securities
of such series as their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 7.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request
35
of the Issuer or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Issuer, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Issuer, any Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation or association into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or association to which all
or substantially all of the corporate trust business of the Trustee may be sold or otherwise
transferred, shall be the successor trustee hereunder without any further act. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against Issuer.
The Trustee is subject to Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
ARTICLE EIGHT
36
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 8.01 Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, either (i) not later than June 1 and November 1 in each year in the case of
Original Issue Discount Securities of any series which by their terms do not bear interest prior to
Maturity, or (ii) not more than 15 days after each Regular Record Date in the case of Securities of
any other series, a list, each in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the preceding June 1 or November 1 or
as of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Issuer of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar with respect to
Securities of any series, no such lists need be furnished.
SECTION 8.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 8.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 8.01
upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities and the corresponding rights and duties of the Trustee shall
be provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Issuer and
the Trustee that neither the Issuer nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure or information as to the names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 8.03 Reports by Trustee to Holders.
Within 60 days after each May 1 beginning with the May 1 following the date of this Indenture,
and for so long as Securities remain Outstanding, the Trustee shall (at the expense of the Issuer)
mail to the Holders of the Securities a brief report dated as of such May 1 that complies with
Section 313(a) of the Trust Indenture Act (but if no event described in Section 313(a) of the Trust
Indenture Act has occurred within the twelve months preceding such May 1, no report need be
transmitted). The Trustee also shall comply with Section 313(b)(2) of the Trust Indenture Act. The
Trustee shall also transmit by mail all reports as required by Section 313(c) of the Trust
Indenture Act.
A copy of each report at the time of its mailing to the Holders of Securities shall be mailed
to the Issuer and filed with the SEC and each stock exchange on which the Securities are listed in
accordance with Section 313(d) of the Trust Indenture Act. The Issuer shall promptly notify the
Trustee when the Securities are listed on any stock exchange.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
37
SECTION 9.01 Merger, Consolidation, etc. Only on Certain Terms.
Neither the Issuer nor any of the Guarantors shall consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(1) if the Issuer or such Guarantor, as the case may be, shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which the Issuer or such
Guarantor, as the case may be, is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Issuer or such Guarantor, as the case may be,
substantially as an entirety shall, (i) in the case of the Issuer or any Guarantor that is not
Willis North America Inc., be a Person organized and existing under the laws of any United
States jurisdiction, any state thereof, Bermuda, England and Wales, Ireland, the Netherlands or
any country that is a member of the European Monetary Union, or (ii) in the case of Willis North
America Inc., be a person organized and existing under the laws of any United States
jurisdiction and any state thereof or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Issuer or any of the Guarantors, as the case may be,
under this Indenture and the Securities and immediately after such transaction no Event of
Default shall have happened or be continuing; and
(2) the Issuer or such Guarantor, as the case may be, has delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that (a) such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been complied with
and (b) in the case of a consolidation with or merger by the Issuer into a Person organized
other than under the laws of Ireland or the conveyance, transfer or lease by the Issuer of its
properties and assets substantially as an entirety to a Person organized other than under the
laws of Ireland, Holders will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such consolidation, merger, conveyance, transfer or lease and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and at the same time
as would have been the case if such consolidation, merger, conveyance, transfer or lease had not
occurred.
SECTION 9.02 Successor Corporation Substituted.
Upon any consolidation by the Issuer or any of the Guarantors, as the case may be, with or
merger by the Issuer or such Guarantor into any other Person or any conveyance, transfer or lease
of the properties and assets of the Issuer or such Guarantor substantially as an entirety in
accordance with Section 9.01, the successor Person formed by such consolidation or into which the
Issuer or such Guarantor is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such
Guarantor, as the case may be, under this Indenture with the same effect as if such successor
Person had been named as the Issuer or such Guarantor herein, and thereafter, except in the case of
a lease, the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Issuer and each Guarantor, when authorized by a Board
Resolution, in the case of the Issuer, and a resolution of the board of directors of such Guarantor
or a
38
committee thereof in the case of such Guarantor (which shall be certified in the same manner
as a Board Resolution), and the Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Issuer or any Guarantor and the
assumption by any such successor of the covenants of the Issuer or any Guarantor herein and in
the Securities (pursuant to Article Nine, if applicable); or
(2) to add to the covenants of the Issuer or any Guarantor for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Issuer
or any Guarantor; or
(3) to add any additional Events of Default (and if such Events of Default are to be
applicable to less than all series of Securities, stating that such Events of Default are
expressly being included solely to be applicable to such series); or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to provide for
uncertificated Securities (so long as any registration-required obligation within the meaning
of section 163(f)(2) of the Internal Revenue Code of 1986, as amended, is in registered form for
purposes of such section); or
(5) to change or eliminate any of the provisions of this Indenture, provided that any such
change or elimination shall become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by Sections
2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provision with respect to matters or questions
arising under this Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 10.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer and the Trustee, the Issuer and each Guarantor each, when
authorized by a Board Resolution, in the case of the Issuer, and a resolution of the board of
directors of such Guarantor or a committee thereof in the case of such Guarantor (which shall be
certified in the same manner as a Board Resolution), and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provision to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture;
39
provided, however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02, or adversely
affect any right of repayment at the option of the Holder of any Security, or reduce the amount
of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation, or
impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), in
each case other than the amendment or waiver in accordance with the terms of this Indenture of
any covenant or related definition included pursuant to Section 3.01 that provides for an offer
to repurchase any Securities of a series upon a sale of assets or change of control transaction,
or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 6.13 or Section 11.07, except to
increase any such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of the Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 10.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected in relying upon, in addition to
the documents required by Section 1.02 hereof, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The Trustee in its sole
discretion may, but shall not be obligated to, enter into any such supplemental indenture which
adversely affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 10.05 Conformity with Trust Indenture Act.
40
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 10.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such series.
SECTION 10.07 Notice of Supplemental Indenture.
Promptly after the execution by the Issuer, each Guarantor and the Trustee of any supplemental
indenture pursuant to Section 10.02, the Issuer shall transmit, in the manner and to the extent
provided in Section 1.05, to all Holders of any series of the Securities affected thereby, a notice
setting forth in general terms the substance of such supplemental indenture. The failure to give
such notice to all Holders of Securities of such series, or any defect therein, shall not impair or
affect the validity of such supplemental indenture.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01 Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of the Holders of Securities of each series
that it will duly and punctually pay the principal of (and premium, if any) and interest, if any,
on the Securities of that series in accordance with the terms of the Securities of that series and
this Indenture.
SECTION 11.02 Maintenance of Office or Agency.
The Issuer will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be surrendered for registration of transfer and
exchange, where notices and demands to or upon the Issuer in respect of the Securities of that
series and this Indenture may be served and where the Securities may be presented for payment. The
Issuer will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The Issuer will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 11.03 Money for Securities Payments to Be Held in Trust.
If the Issuer or any Guarantor shall at any time act as Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of (and premium, if any)
or interest, if any, on
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the Securities of that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to act or of any failure
by the Issuer (or by any other obligor on the Securities of that series) to make any payment of the
principal of (and premium, if any) or interest, if any, on the Securities of such series when the
same shall be due and payable.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it
will, at or prior to the opening of business on each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest, if any, so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal (and premium, if any) or
interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee
of its action or failure so to act.
If the Issuer shall appoint a Paying Agent other than the Trustee for any series of
Securities, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or
interest, if any, on the Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Issuer or any Guarantor (or any other
obligor upon the Securities of that series) in the making of any payment of principal (and
premium, if any) or interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge with
respect to one or more or all series of Securities hereunder or for any other reason, pay or by
Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust for any such
series by the Issuer, any Guarantor or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Issuer, any Guarantor or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer in trust
for the payment of the principal of (and premium, if any) or interest on any Security of any series
and remaining unclaimed for two years after such principal (and premium, if any) or interest has
become due and payable shall be paid to the Issuer or any Guarantor on Issuer Request subject to
applicable abandoned property and escheat law, or (if then held by the Issuer or any Guarantor)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer or any Guarantor for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer or any Guarantor as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once a week for two consecutive weeks (in each case on
any day of the week) in an Authorized Newspaper notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 11.04 Corporate Existence.
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Subject to Article Nine, the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
SECTION 11.05 Payment of Taxes and Other Claims.
The Issuer will, and will cause each Significant Subsidiary to, pay or discharge or cause to
be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Issuer or any such Significant Subsidiary or upon
the income, profits or property of the Issuer or any such Significant Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuer or any such Significant Subsidiary; provided, however, that none of the
Issuer nor any Significant Subsidiary shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 11.06 Maintenance of Properties.
The Issuer will cause all its properties used or useful in the conduct of its business to be
maintained and kept in reasonably good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Issuer may be necessary so that
the business carried on in connection therewith may be properly conducted at all times; provided,
however, that nothing in this Section shall prevent the Issuer from discontinuing the operation or
maintenance of any of its properties if such discontinuance is, in the judgment of the Issuer
desirable in the conduct of its business and not disadvantageous in any material respect to the
Holders of the Securities of any series.
SECTION 11.07 Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any term, provision or condition
set forth in Sections 11.04, 11.05 and 11.06 or established pursuant to Section 3.01 or 10.01, with
respect to the Securities of any series, if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Issuer and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
SECTION 11.08 Statement by Officers as to Default.
The Issuer will, within 90 days after the close of each fiscal year, commencing with the first
fiscal year ending after the issuance of Securities of any series under this Indenture, file with
the Trustee a certificate of the principal executive officer, the principal financial officer or
the principal accounting officer of the Issuer, covering the period from the date of issuance of
such Securities to the end of the fiscal year in which such Securities were issued, in the case of
the first such certificate, and covering the preceding fiscal year in the case of each subsequent
certificate, and stating whether or not, to the knowledge of the signer, the Issuer has complied
with all conditions and covenants on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Issuer in the performance, observance or fulfillment of
any such condition or covenant, specifying each such default and the nature thereof. For the
purpose of this Section 11.08, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 11.09 Reports by the Issuer.
The Issuer shall:
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(1) file with the Trustee, within 15 days after the Issuer is required to file the same
with the Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Issuer is not required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Issuer pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations prescribed from time to time
by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Issuers compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
SECTION 11.10 Further Assurances.
From time to time whenever reasonably demanded by the Trustee, the Issuer and each Guarantor
will make, execute and deliver or cause to be made, executed and delivered any and all such further
and other instruments and assurances as may be reasonably necessary or proper to carry out the
intention or facilitate the performance of the terms of this Indenture.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
SECTION 12.02 Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Issuer of all or less than all the Securities of
any series, the Issuer shall, at least 45 days prior to the Redemption Date fixed by the Issuer
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish
the Trustee with an Officers Certificate evidencing compliance with such restriction.
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SECTION 12.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular Securities to
be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of that series;
provided, however, that Securities of such series registered in the name of the Issuer shall be
excluded from any such selection for redemption until all Securities of such series not so
registered shall have been previously selected for redemption.
The Trustee shall promptly notify the Issuer in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 12.04 Notice of Redemption.
Notice of redemption shall be given not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP
numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date,
(5) that interest, if any, accrued to the date fixed for redemption will be paid as
specified in said notice,
(6) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given
by the Issuer or, at the Issuers request, by the Trustee in the name and at the expense of the
Issuer.
SECTION 12.05 Deposit of Redemption Price.
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On or prior to 10 a.m. New York City time, on any Redemption Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer or any Guarantor is acting as Paying
Agent, segregate and hold in trust as provided in Section 11.03) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 12.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Issuer at the
Redemption Price, together with accrued interest to the Redemption Date: provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 12.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Issuer shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the
principal of the security so surrendered. Securities in denominations larger than the minimum
authorized denomination therefor may be redeemed in part, but only in whole multiples of $1,000.
SECTION 12.08 Securities No Longer Outstanding After Notice to Trustee and Deposit of Cash.
If the Issuer, having given notice to the Trustee as provided in Section 12.02, shall have
deposited with the Trustee or a Paying Agent, for the benefit of the Holders of any Securities of
any series or portions thereof called for redemption in whole or in part cash or other form of
payment if permitted by the terms of such Securities, in the amount necessary so to redeem all such
Securities or portions thereof on the Redemption Date and provision satisfactory to the Trustee
shall have been made for the giving of notice of such redemption, such Securities or portions
thereof, shall thereupon, for all purposes of this Indenture, be deemed to be no longer
Outstanding, and the Holders thereof shall be entitled to no rights thereunder or hereunder, except
the right to receive payment of the Redemption Price, together with interest accrued to the
Redemption Date, on or after the Redemption Date of such Securities or portions thereof.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities
of such series.
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The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 13.02.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 13.02 Satisfaction of Sinking Fund Payments with Securities.
The Issuer (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Issuer pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such Securities have not been
previously so credited pursuant to the terms of such Securities. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 13.03 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series of Securities,
the Issuer will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that series pursuant to Section 13.02
and the basis for such credit and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in
Section 12.03 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Issuer in the manner provided in Section 12.04. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner stated in Sections
12.06 and 12.07.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01 Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or future, of the Issuer,
any Guarantor or of any successor Person, either directly or through the Issuer or any Guarantor,
whether by virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Issuer or any Guarantor, and
that no such personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Issuer, any Guarantor or of any
successor Person, or any of them, because of the creation of the Indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such personal liability, either at
common
47
law or in equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such, because of the
creation of the Indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issuance of the Securities.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01 Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be called at any time and from
time to time pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Issuer, any Guarantor or to the Trustee, or to give any
directions to the Trustee, or to waive any default hereunder and its consequences, or to take
any other action authorized to be taken by the Holders of Securities pursuant to any of the
provisions of Article Six;
(2) to remove the Trustee and appoint a successor Trustee pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant
to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the Holders of any
specified percentage in aggregate principal amount of the Securities of all or any series, as
the case may be, under any other provision of this Indenture or under applicable law.
SECTION 15.02 Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of Securities of all or any series to
take any action specified in Section 15.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting
of the Holders of Securities of all or any series, setting forth the time and place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be given to all Holders
of Securities of each series that may be affected by the action proposed to be taken at such
meeting by publication at least twice in an Authorized Newspaper prior to the date fixed for the
meeting, the first publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting, and the last publication to be not more than five days prior to the date
fixed for the meeting, or such notice may be given to Holders by mailing the same by first class
mail, postage prepaid, to the Holders of Securities at the time Outstanding, at their addresses as
they shall appear in the Security Register, not less than 20 nor more than 60 days prior to the
date fixed for the meeting. Failure to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of Holders of Securities of
all or any series shall be valid without notice if the Holders of all such Securities Outstanding,
the Issuer and the Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
SECTION 15.03 Call of Meetings by Issuer or Holders.
In case at any time the Issuer by Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Securities then Outstanding of each series that may be affected
by the action proposed to be taken at the meeting shall have requested the Trustee to call a
meeting of Holders of Securities of all series that may be so affected to take any action
authorized in Section 15.01 by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed or made the first
publication of the notice of such meeting within 30 days after receipt of such request, then the
Issuer or the Holders in the amount above specified may determine the time and the place in the
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Borough of Manhattan, The City of New York for such meeting and may call such meeting by
mailing or publishing notice thereof as provided in Section 15.02.
SECTION 15.04 Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more
Securities of a series affected by the action proposed to be taken, or (b) be a Person appointed by
an instrument in writing as proxy by the Holder of one or more such Securities. The right of
Holders to have their votes counted shall be subject to the proviso in the definition of
Outstanding in Section 1.01. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the Issuer and its
counsel.
SECTION 15.05 Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or representing Securities in an
aggregate principal amount sufficient to take action on the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum. No business shall be transacted
in the absence of a quorum unless a quorum is represented when the meeting is called to order. In
the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of the Holders of Securities (as provided in Section 15.03), be
dissolved. In any other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting for a period of not
less than 10 days with the same effect, for all intents and purposes, as though a quorum had been
present. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be
similarly further adjourned for a period of not less than 10 days. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.02 except that, in the case of
publication, such notice need be published only once but must be given not less than five days
prior to the date on which the meeting is scheduled to be reconvened, and in the case of mailing,
such notice may be mailed not less than five days prior to such date.
Any Holder of a Security who has executed an instrument in writing complying with the
provisions of Section 1.04 shall be deemed to be present for the purposes of determining a quorum
and be deemed to have voted; provided, however, that such Holder shall be considered as present or
voting only with respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the Holders of Securities of any
series duly held in accordance with this Section shall be binding on all Holders of such series of
Securities whether or not present or represented at the meeting.
SECTION 15.06 Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Issuer or by Holders of Securities as provided in
Section 15.03, in which case the Issuer or the Holders of Securities calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a majority in
principal amount of the Securities represented at the meeting.
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At any meeting each Holder of a Security of a series entitled to vote at such meeting, or
proxy therefor, shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as provided in the
definition of Outstanding) of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Security challenged
as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote except as a Holder of Securities of such series or proxy
therefor. Any meeting of Holders of Securities duly called pursuant to the provisions of Section
15.02 or 15.03 at which a quorum is present may be adjourned from time to time, and the meeting may
be held as so adjourned without further notice.
SECTION 15.07 Voting Procedure.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on
which shall be subscribed the signatures of the Holders of Securities entitled to vote at such
meeting, or proxies therefor, and on which shall be inscribed an identifying number or numbers or
to which shall be attached a list of identifying numbers of the Securities so held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders of Securities shall be
prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed or published as provided in Section 15.02 and, if applicable,
Section 15.05. The record shall be signed and verified by the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Issuer and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 15.08 Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Securities of any series herein provided, entitled to vote at any such meeting,
evidenced as provided in Section 1.04 and filed with the Trustee, shall be effective in lieu of a
meeting of the Holders of Securities of such series, with respect to any matter provided for in
this Article Fifteen.
SECTION 15.09 No Delay of Rights by Meeting.
Nothing contained in this Article shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders of Securities of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or the Holders of
Securities of any or all such series under any provisions of this Indenture or the Securities.
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 16.01 Guarantee
Except as otherwise set forth in a Board Resolution, Officers Certificate or supplemental
indenture establishing a series of Securities and subject to the provisions of this Article
Sixteen, each Guarantor hereby jointly and severally unconditionally and irrevocably guarantees, as
a primary obligor and not
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merely as a surety, to each Holder and to the Trustee and its successors and assigns (a) the
full and punctual payment of principal of and interest on the Securities when due, whether on the
Stated Maturity, by acceleration, by redemption or otherwise; and all other monetary obligations of
the Issuer under this Indenture (including all obligations of the Issuer to the Trustee under this
Indenture) and the Securities and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Issuer whether for expenses, indemnification or otherwise
under this Indenture and the Securities (all the foregoing being hereinafter collectively called
the Guaranteed Obligations). Each Guarantor further agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this Article Sixteen
notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives (to the extent that it may lawfully do so) (a) presentation to, demand
of, payment from and protest to the Issuer of any of the Guaranteed Obligations, (b) notice of
protest for nonpayment and (c) notice of any default under Securities of any series or the
Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (i)
the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Issuer or any other Person under this Indenture, the Securities of any series or
any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture,
the Securities of any series or any other agreement relating to this Indenture or the Securities;
(iv) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations
or any of them; (v) the failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of
such Guarantor, except as provided in Section 16.02(b).
Each Guarantor hereby waives (to the extent that it may lawfully do so) (x) any right to which
it may be entitled to have its obligations hereunder divided among the Guarantors, such that such
Guarantors obligations would be less than the full amount claimed, (y) any right to which it may
be entitled to have the assets of the Issuer first be used and depleted as payment of the Issuers
or such Guarantors obligations hereunder prior to any amounts being claimed from or paid by such
Guarantor hereunder and (z) any right to which it may be entitled to require that the Issuer be
sued prior to an action being initiated against such Guarantor.
Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment,
performance and compliance when due (and not a guarantee of collection) and waives (to the extent
that it may lawfully do so) any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed Obligations.
Except as expressly set forth in Article Five and Section 16.02, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever
or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the
Securities of any series or any other agreement relating to this Indenture or the Securities, by
any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise,
in the performance of the obligations, or by any other act or thing or omission or delay to do any
other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor
or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
Each Guarantor agrees that its Guarantee shall remain in full force and effect until payment
in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or
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interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder or
the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of the
Issuer to pay the principal of or interest on any Guaranteed Obligation when and as the same shall
become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such
Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only
to the extent not prohibited by law) and (iii) all other monetary obligations of the Issuer to the
Holders and the Trustee.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any Guaranteed Obligations guaranteed hereby until payment in full of all
Guaranteed Obligations. Each Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes of any Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article Six, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such Guarantor for the
purposes of this Section 16.01.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under
this Section 16.01.
SECTION 16.02 Limitation on Liability.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum,
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
(b) This Guarantee as to any Guarantor shall terminate and be of no further force or effect
and such Guarantor shall be deemed to be released from all obligations under this Article Sixteen
and Section 9.02 upon (i) the merger or consolidation of such Guarantor with or into any Person
other than the Issuer or a Subsidiary or Affiliate of the Issuer where such Guarantor is not the
surviving entity of such consolidation or merger or (ii) the sale, exchange or transfer to any
Person not an Affiliate of the Issuer of all the Capital Stock in, or all or substantially all the
assets of, such Guarantor; provided however, that in the case of (i) and (ii) above, such merger,
consolidation, sale, exchange or transfer is made in accordance with Section 9.01 and the successor
Person or transferee has assumed all of the obligations of such Guarantor under this Indenture and
the Securities. This Guarantee also shall be automatically released upon the release or discharge
of the Indebtedness that results in the creation of such Guarantee, as the case may be. At the
request of the Issuer, the Trustee shall execute and deliver an appropriate instrument evidencing
such release.
SECTION 16.03 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it
pursuant to its Guarantee are knowingly made in contemplation of such benefits.
SECTION 16.04 Successors and Assigns.
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This Article Sixteen shall be binding upon each Guarantor and its successors and assigns and
shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Securities of any series shall
automatically extend to and be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
SECTION 16.05 No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Article Sixteen shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights, remedies or benefits
which either may have under this Article Sixteen at law, in equity, by statute or otherwise.
SECTION 16.06 Modification.
No modification, amendment or waiver of any provision of this Article Sixteen, nor the consent
to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or demand on any Guarantor
in any case shall entitle such Guarantor to any other or further notice or demand in the same,
similar or other circumstances.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01 Counterparts.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
THE BANK OF NEW YORK MELLON hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.
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The COMMON SEAL
of WILLIS GROUP HOLDINGS
PUBLIC LIMITED COMPANY was hereto affixed and this
DEED was
DELIVERED in the
presence of: |
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By:
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/s/ Joseph J. Plumeri |
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Name:
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Joseph J. Plumeri |
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Title:
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Chairman and Chief Executive Officer |
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By:
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/s/ Alan G. Ciongoli |
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Name:
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Adam G. Ciongoli |
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Title:
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Member of the Sealing Committee |
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WILLIS NETHERLANDS HOLDINGS B.V. |
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By:
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/s/ Adriaan Cornelis
Konijnendijk |
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Name:
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Adriaan Cornelis Konijnendijk |
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Title:
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Managing Director A |
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WILLIS INVESTMENT UK HOLDINGS LIMITED |
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By:
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/s/ Adam G. Ciongoli |
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Name:
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Adam G. Ciongoli |
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Title:
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Group General Counsel |
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TA I LIMITED |
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By:
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/s/ Adam G. Ciongoli |
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Name:
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Adam G. Ciongoli |
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Title:
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Group General Counsel |
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TRINITY ACQUISITION PLC |
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By:
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/s/ Adam G. Ciongoli |
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Name:
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Adam G. Ciongoli |
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Title:
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Group General Counsel |
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WILLIS GROUP LIMITED |
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By:
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/s/ Adam G. Ciongoli |
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Name:
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Adam G. Ciongoli |
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Title:
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Group General Counsel |
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WILLIS NORTH AMERICA INC. |
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By:
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/s/ Adam G. Ciongoli |
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Name:
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Adam G. Ciongoli |
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Title:
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Group General Counsel |
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THE BANK OF NEW YORK MELLON, AS TRUSTEE |
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By:
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/s/ Kimberly Agard |
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Name:
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Kimberly Agard |
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Title:
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Vice President |
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