Exhibit 4.1
NOTE PURCHASE AGREEMENT
among
TRINITY ACQUISITION LIMITED, as Issuer,
WILLIS GROUP HOLDINGS LIMITED,
WILLIS INVESTMENT HOLDINGS UK, LTD.,
TA I LIMITED,
TA II LIMITED,
TA III LIMITED,
TA IV LIMITED,
WILLIS GROUP LIMITED, and
WILLIS NORTH AMERICA INC., as Initial Guarantors
GSMP V ONSHORE INTERNATIONAL, LTD.,
GSMP V OFFSHORE INTERNATIONAL, LTD.,
GSMP V INSTITUTIONAL INTERNATIONAL, LTD., as GSMP Purchasers, and
GS MEZZANINE PARTNERS V INSTITUTIONAL, L.P.
Dated as of February 10, 2009
Relating to:
$500,000,000.00
12.875% Senior Notes Due December 31, 2016
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.............................................1
1.1. Definitions...........................................................................1
1.2. Rules of Construction.................................................................7
SECTION 2. AUTHORIZATION AND ISSUANCE OF NOTES..........................................8
2.1. Authorization of Issue................................................................8
2.2. Sale and Purchase of the Notes........................................................8
2.3. Closing...............................................................................9
SECTION 3. CONDITIONS TO CLOSING........................................................9
3.1. Financial Information.................................................................9
3.2. Change of Control....................................................................10
3.3. Representations and Warranties.......................................................10
3.4. Financing Documents..................................................................10
3.5. Organizational Documents; Incumbency.................................................10
3.6. Opinions of Counsel to Obligors......................................................10
3.7. Solvency Certificate.................................................................11
3.8. Consents.............................................................................11
3.9. PATRIOT Act Information..............................................................11
3.10. Payment of Expenses; Closing Payment.................................................11
3.11. Officer's Certificate................................................................11
3.12. Satisfaction of Existing Bridge Loan.................................................11
3.13. Subordination of Intercompany Debt...................................................11
3.14. Registration.........................................................................12
3.15. Listing..............................................................................12
3.16. Rating...............................................................................12
SECTION 4. REPRESENTATIONS AND WARRANTIES..............................................12
4.1. Organization; Power..................................................................12
4.2. Authorization; Enforceability........................................................12
4.3. Governmental Approvals; No Conflicts.................................................13
4.4. Financial Condition..................................................................13
4.5. Properties; Material Contracts.......................................................13
4.6. Litigation and Environmental Matters.................................................13
4.7. Compliance with Laws; Absence of Default.............................................14
4.8. Investment Company Status; Governmental Regulations..................................14
4.9. Taxes................................................................................14
4.10. ERISA; Employee Matters..............................................................14
4.11. Disclosure...........................................................................15
4.12. Subsidiaries.........................................................................15
4.13. Solvency.............................................................................15
4.14. Margin Stock.........................................................................15
4.15. Insurance............................................................................15
i
4.16. Financial Reporting..................................................................16
4.17. Duties and Taxes.....................................................................16
4.18. Immunity.............................................................................17
4.19. Judgments............................................................................17
4.20. No Registration Required.............................................................18
4.21. No Integration of Offerings or General Solicitation..................................18
4.22. Eligibility for Resale under Rule 144A...............................................18
4.23. PATRIOT Act..........................................................................19
SECTION 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASERS....................19
5.1. Representation and Warranties........................................................19
5.2. Tax Forms............................................................................20
5.3. Listing..............................................................................20
SECTION 6. COVENANTS...................................................................20
6.1. Future Reports to GSMP Purchasers, the GSMP VCOC, and any Subsequent Holder..........20
6.2. Notices of Material Events...........................................................22
6.3. Books and Records; Access............................................................22
6.4. Tax Treatment........................................................................23
6.5. Use of Proceeds......................................................................24
SECTION 7. PROVISIONS RELATING TO RESALES OF NOTES.....................................24
7.1. Private Offerings....................................................................24
7.2. Procedures and Management Cooperation in Private Offerings...........................24
7.3. No Integration.......................................................................24
SECTION 8. EXPENSES, INDEMNIFICATION AND CONTRIBUTION..................................25
8.1. Expenses.............................................................................25
8.2. Indemnification......................................................................25
8.3. Waiver of Punitive Damages...........................................................25
8.4. Survival.............................................................................25
8.5. Tax Treatment of Indemnification Payments............................................26
SECTION 9. MISCELLANEOUS...............................................................26
9.1. Notices..............................................................................26
9.2. Benefit of Agreement and Assignments.................................................26
9.3. No Waiver; Remedies Cumulative.......................................................27
9.4. Amendments, Waivers and Consents.....................................................27
9.5. Counterparts.........................................................................27
9.6. Reproduction.........................................................................28
9.7. Headings.............................................................................28
9.8. Survival of Covenants and Indemnities................................................28
9.9. Governing Law; Submission to Jurisdiction; Venue.....................................28
9.10. Severability.........................................................................29
9.11. Entirety.............................................................................29
9.12. Survival of Representations and Warranties...........................................29
ii
9.13. Construction.........................................................................29
9.14. Incorporation........................................................................29
9.15. Confidentiality......................................................................30
9.16. Maximum Rate.........................................................................30
9.17. PATRIOT Act..........................................................................31
9.18. Currency.............................................................................31
9.19. Further Assurances...................................................................31
EXHIBITS:
Exhibit A Form of Indenture
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Compliance Certificate
Exhibit 3.5 Form of Secretary's Certificate
Exhibit 3.6(a) Form of Opinion of New York Counsel
Exhibit 3.6(b) Form of Opinion of English Counsel
Exhibit 3.6(c) Form of Opinion of Bermuda Counsel
Exhibit 3.7 Form of Solvency Certificate
Exhibit 3.11 Form of Officer's Certificate
SCHEDULES:
Schedule 2.2 Information Relating to the Purchasers
Schedule 4.3 Consents
Schedule 4.5 Material Contracts; Encumbrances or Restrictions
Schedule 4.6 Litigation and Environmental Matters
Schedule 4.12 Subsidiaries
Schedule 4.15 Insurance
iii
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of February 10, 2009, among Trinity
Acquisition Limited, a company organized and operated under the laws of England
and Wales and an indirect Wholly-Owned Subsidiary (as defined below) of Holdings
(as defined below) (the "Issuer"), Willis Group Holdings Limited, an exempted
company under the Companies Act 1981 of Bermuda ("Holdings"), Willis North
America Inc., a Delaware corporation ("WNA"), Willis Investment Holdings UK,
Ltd., a company organized and operated under the laws of England and Wales
("Willis UK"), Willis Group Limited, a company organized and operated under the
laws of England and Wales ("Willis Group Limited"), TA I Limited, a company
organized and operated under the laws of England and Wales ("TA I"), TA II
Limited, a company organized and operated under the laws of England and Wales
("TA II"), TA III Limited, a company organized and operated under the laws of
England and Wales ("TA III"), TA IV Limited, a company organized and operated
under the laws of England and Wales ("TA IV" and together with Holdings, WNA,
Willis UK, Willis Group Limited, TA I, TA II, and TA III, the "Initial
Guarantors"), GSMP V Onshore International, Ltd., an exempted company
incorporated in the Cayman Islands with limited liability ("GSMP V Onshore"),
GSMP V Offshore International, Ltd., an exempted company incorporated in the
Cayman Islands with limited liability ("GSMP V Offshore") and GSMP V
Institutional International, Ltd., an exempted company incorporated in the
Cayman Islands with limited liability ("GSMP V Institutional" and, together with
GSMP V Onshore and GSMP V Offshore, the "GSMP Purchasers", and together with any
Subsequent Purchasers (as defined below), the "Purchasers") and GS Mezzanine
Partners V Institutional, L.P., an exempted partnership organized in the Cayman
Islands with limited liability ("GSMP VCOC").
RECITALS
WHEREAS, WNA, an indirect Wholly-Owned Subsidiary of the Issuer,
intends to repay a portion of WNA's Existing Bridge Loan (as defined below).
WHEREAS, the repayment of the Existing Bridge Loan and the payment of
related transaction fees and expenses (the "Refinancing") is intended to be
financed by the issuance by the Issuer to the GSMP Purchasers on the date hereof
of $500,000,000.00 in an aggregate original principal amount of the Issuer's
12.875% senior notes due December 31, 2016 (such notes and all notes issued in
exchange, substitution or replacement therefore, the "Notes"), upon the terms
and subject to the conditions set forth in this Agreement and the Indenture (as
defined below).
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1. Definitions.
As used herein, capitalized terms which are defined in the Indenture
shall have, except where otherwise expressly set forth herein, the same
respective meanings as such terms have in the Indenture, and, in addition, the
following terms shall have the meanings specified herein unless the context
otherwise requires (it being understood that defined terms shall include in the
singular number the plural and in the plural the singular):
"Agreement" is defined in Section 9.4.
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"Board of Governors" means the Board of Governors of the United States
Federal Reserve System, or any successor thereto.
"Closing" is defined in Section 2.3(a).
"Closing Date" is defined in Section 2.3(a).
"Closing Payment" means, with respect to each GSMP Purchaser, on the
Closing Date, an amount equal to 3.5% of the aggregate principal amount of the
Notes purchased by such GSMP Purchaser on or as of such Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" is defined in the Recital.
-------
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Confidential Information" is defined in Section 9.15(a).
"Debt Rating" means, as of any date of determination, the rating as
determined by any Rating Agency (if by more than one Rating Agency,
collectively, the "Debt Ratings"), as applicable, of the Issuer's
non-credit-enhanced, senior unsecured long-term debt.
"DTC" is defined in Section 7.2(a).
"DTC Agreement" means a letter of representation between the Issuer and
DTC.
"Employee Benefit Plan" means any Multiemployer Plan or Pension Plan.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to (i)
environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, natural resources
or the protection of human, plant or animal health or welfare, in any manner
applicable to the Issuer or any of its Subsidiaries or any Facility.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Holdings and its Subsidiaries directly or
indirectly resulting from or based upon (i) violation of any Environmental Law;
(ii) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials; (iii) exposure to any Hazardous Materials;
(iv) the release or threatened release of any Hazardous Materials into the
environment or (v) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
2
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, is treated as a single employer
under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (i) a Reportable Event with respect to a Pension
Plan; (ii) a withdrawal by Holdings or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (iii) a complete or partial withdrawal by Holdings or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (iv) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (v) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan or (vi) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Holdings or
any ERISA Affiliate.
"Existing Bridge Loan" means that certain 364-Day Credit Agreement
dated as of October 1, 2008 between Holdings, WNA, the lenders party thereto,
Bank of America, N.A., as administrative agent, Banc of America Securities LLC,
J.P. Morgan Securities Inc., Suntrust Robinson Humphrey, Inc., and the Royal
Bank of Scotland, PLC as Book Managers, and Bank of America Securities LLC as
Sole Lead Arranger, as amended.
"Facility" means any real property (including all buildings, fixtures
or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by the Issuer or any of its Subsidiaries or any of
their respective predecessors.
"Financing Documents" means, collectively, this Agreement, the
Indenture, the Notes, the Registration Rights Agreement and all certificates,
instruments, and other documents made or delivered in connection herewith and
therewith.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries
ending on December 31 of each calendar year.
"Governmental Authority" means the government of the United States and
United Kingdom or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government where appropriate (including any supra-national bodies
such as the European Union or the European Central Bank).
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GSMP Purchasers" is defined in the Preamble.
3
"GSMP VCOC" is defined in the Preamble.
"GSMP V Institutional" is defined in the Preamble.
"GSMP V Offshore" is defined in the Preamble.
"GSMP V Onshore" is defined in the Preamble.
"Hazardous Materials" means any chemical, material, substance or waste,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment or natural resources.
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Holdings" is defined in the Preamble.
"Indemnitee" is defined in Section 8.2.
"Indenture" means, prior to the Closing Date, the form of indenture
attached hereto as Exhibit A and on and after the Closing Date the Indenture,
substantially in the form attached hereto as Exhibit A, among the Issuer,
Holdings, the Guarantors as listed therein and The Bank of New York Mellon, as
trustee, as amended, supplemented, restated or otherwise modified from time to
time.
"Infringe" means, in relation to Intellectual Property, infringing
upon, misappropriating or violating the rights of any third party.
"Initial Guarantors" is defined in the Preamble.
"Intellectual Property" means the following and all rights pertaining
thereto: (a) patents, patent applications, provisional patent applications and
statutory invention registrations (including all utility models and other patent
rights under the Laws of all countries), (b) trademarks, service marks, trade
dress, logos, trade names, service names, corporate names, domain names and
other brand identifiers, registrations and applications for registration
thereof, (c) copyrights, proprietary designs, computer software, mask works,
databases, and registrations and applications for registration thereof, (d)
confidential and proprietary information, trade secrets, know-how and show-how,
and (e) all similar rights, however denominated, throughout the world.
"Investment Company Act" means the Investment Company Act of 1940 as
from time to time in effect and any successor act to all or a portion thereof.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's and BBB- (or the equivalent) by S&P, or an
equivalent rating by any other Rating Agency.
4
"Law" means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, judgment, code, order, injunction, arbitration
award, writ, decree, agency requirement, license or permit of any Governmental
Authority.
"Material Acquisition" means an acquisition by Holdings or any of its
Subsidiaries of any Person, property, business or asset outside the ordinary
course of business for total consideration in excess of $25,000,000.00.
"Material Adverse Effect" means (i) a material adverse change in, or a
material adverse effect upon, the business, financial position, property or
results of operations of Holdings and its Subsidiaries taken as a whole; (ii) a
material impairment of the ability of any Obligor to perform its obligations
under any Financing Document to which it is a party; or (iii) a material adverse
effect upon the legality, validity, binding effect or enforceability against any
Obligor of any Financing Document to which it is a party.
"Material Contract" means any contract or other arrangement to which
Holdings, the Issuer or any of their Subsidiaries is a party (other than the
Financing Documents) for which breach, nonperformance, cancellation or failure
to renew could reasonably be expected to have a Material Adverse Effect.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
3(37) or 4001(a)(3) of ERISA, to which Holdings or any ERISA Affiliate makes or
is obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions (excluding any foreign plans of
Holdings or any of its ERISA Affiliates).
"Non-Utilization Fee" means an amount equal to the Applicable Premium
that would have been payable if Notes with an aggregate principal amount equal
to the Non-Utilized Amount had been issued on the Closing Date and such Notes
were thereafter immediately redeemed in accordance with Section 3.07(a) of the
Indenture.
"Non-Utilized Amount" means an amount equal to $500,000,000.00 minus
the aggregate principal amount of Notes actually issued on the Closing Date.
"Notes" is defined in the Recitals.
"Obligor" means the Issuer and each Guarantor of the obligations of the
Issuer under the Indenture, as applicable, and "Obligors" means all of them,
collectively.
"Organizational Documents" means, (i) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any entity incorporated or
established in a non-U.S. jurisdiction); (ii) with respect to any limited
liability company, the certificate or articles of formation or organization and
operating agreement; and (iii) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of
its formation or organization and, if applicable, any certificate or articles of
formation or organization of such entity.
"Outside Closing Date" is defined in Section 2.3(a).
5
"PATRIOT Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), as it may be amended or
renewed from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means any "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is subject to
Section 412 or 430 of the Internal Revenue Code or Section 302 of ERISA, and in
respect of which the Issuer or any of its Subsidiaries has or could reasonably
be expected to have liability, contingent or otherwise, under ERISA, and in
respect of any pension plan which the Issuer or any of its Subsidiaries operates
in the United Kingdom in respect of which the Issuer or any of its Subsidiaries
has or could reasonably be expected to have liability, contingent or otherwise
under the provisions of the United Kingdom Pensions Act 2004 and subsidiary
legislation.
"Private Offering" means any offer and/or sale by one or more of the
Purchasers of some or all of the Notes without registration under the Securities
Act but in compliance with Rule 144A, Rule 144, Regulation S, Section 4(1) or
any other applicable rule or provision under the Securities Act.
"Purchase Price" is defined in Section 2.2(b).
"Purchasers" is defined in the Preamble.
"Refinancing" is defined in the Recitals.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the Issue Date among the GSMP Group and the Obligors, substantially
in the form attached hereto as Exhibit B.
"Regulation D" means Regulation D under the Securities Act as from time
to time in effect and any successor regulation to all or a portion thereof.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
regulation to all or a portion thereof.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30-day notice requirement has been
waived under the applicable regulations.
"Rule 502" means Rule 502 of Regulation D under the Securities Act as
from time to time in effect and any successor regulation to all or a portion
thereof.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any profit
sharing agreement or arrangement, options, warrants, bonds, debentures, notes,
or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
6
"Senior Officer" means the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Operating Officer or the Chief
Accounting Officer, the Secretary, the Treasurer or a Director (in respect of
any Person organized and operated under the laws of England and Wales).
"Specified Conditions" means the conditions set forth in Sections 3.3,
3.11 and 3.16; provided, that no condition set forth shall be a Specified
Condition to the extent the failure of such condition to be satisfied is
reasonably within the good faith control of Holdings or its Subsidiaries.
"Subsequent Holder" means each Person holding an aggregate principal
amount of Notes of not less than $10,000,000.00 that accedes to this Agreement
after the date hereof either before or after the Closing; provided, however,
that the total aggregate principal amount of Notes held by all Subsequent
Holders shall not exceed $100,000,000.00.
"Subsequent Purchaser" means a purchaser of any Note who acquired such
Note in a Private Offering in accordance with Section 7.1 and any Subsequent
Holder.
"TA I" is defined in the Preamble.
"TA II" is defined in the Preamble.
"TA III" is defined in the Preamble.
"TA IV" is defined in the Preamble.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
assessment, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
"Transactions" means the transactions contemplated by the Financing
Documents (including the Guarantee set out in Article 10 of the Indenture),
including the Refinancing.
"Trustee" is defined in the Recitals.
"UK Pensions Event" means (i) the termination of a UK Pension Plan,
(ii) the withdrawal of a participating employer from a UK Pension Plan, and
(iii) the imposition of Contribution Notice under Section 38 of the United
Kingdom Pensions Act 2004 and/or the imposition of a Financial Support Direction
under Section 43 of the United Kingdom Pensions Act 2004
"Willis UK" is defined in the Preamble.
1.2. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
7
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) "will" shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall
be deemed to include substitute, replacement or successor sections or rules
adopted by the SEC from time to time;
(h) unless the context otherwise requires, any reference to an
"Article," "Section" or "clause" refers to an Article, Section or clause, as the
case may be, of this Agreement;
(i) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not any particular
Article, Section, clause or other subdivision;
(j) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein);
(k) any reference herein to any Person shall be construed to include
such Person's successors and assigns; and
(l) the word "including" shall mean "including without limitation".
SECTION 2.
AUTHORIZATION AND ISSUANCE OF NOTES
-----------------------------------
2.1. Authorization of Issue.
On or prior to the Closing, the Issuer will authorize the issuance and
sale of the Notes. The Notes shall be substantially in the form specified in the
Indenture.
2.2. Sale and Purchase of the Notes.
(a) Subject to the terms and conditions of this Agreement, the Issuer
will issue and sell to the GSMP Purchasers and the GSMP Purchasers will purchase
from the Issuer, at the Closing provided for in Section 2.3, the Notes in the
principal amounts and for the portion of the Purchase Price as set forth
opposite such GSMP Purchaser's name on Schedule 2.2.
(b) The aggregate cash purchase price (the "Purchase Price") for the
Notes shall be equal to the principal amount of the Notes being so purchased,
net of the aggregate amount of the Closing Payments with respect thereto.
(c) The parties agree to report the sale and purchase of the Notes for
all federal, state, local and foreign Tax purposes in a manner consistent with
the foregoing and agree to take no position inconsistent with the foregoing.
8
(d) The obligations hereunder of the GSMP Purchasers to purchase and
pay for the Notes are several and not joint and no GSMP Purchaser shall have any
liability to any Person for the performance or non-performance by any other GSMP
Purchaser.
2.3. Closing.
(a) The sale and purchase of the Notes shall occur at the offices of
Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, NY
10004, at 10 a.m. local time, at a closing (the "Closing") on March 6, 2009 (the
"Closing Date"), or at such other time or on such other Business Day as notified
by the GSMP Purchasers to the Issuer in writing, but in any event by no later
than March 22, 2009 (the "Outside Closing Date") (in either case, the date and
time of the Closing is referred to herein as the "Closing Date").
(b) At the Closing, the Issuer will deliver to each GSMP Purchaser
purchasing Notes, in such denominations as such GSMP Purchaser may request
(subject to the terms of the Indenture), Notes representing in the aggregate the
full principal amount of Notes to be purchased by such GSMP Purchaser on the
Closing Date, each such Note dated the Closing Date and registered in such GSMP
Purchaser's name or in accordance with Section 7.2(a), against payment by such
GSMP Purchaser to the Issuer of the amount of the applicable portion of the
Purchase Price (as provided in Section 2.2 and Schedule 2.2), net of the
applicable Closing Payment, by wire transfer of immediately available funds to
such bank account or accounts as the Issuer may request in writing at least
three Business Days prior to the Closing Date.
(c) If on the earlier of the Closing Date or the Outside Closing Date,
(i) the Issuer shall have failed to deliver to the GSMP Purchasers the Notes as
provided in Section 2.3(b), or any of the conditions specified in Section 3
(other than the Specified Conditions) shall not have been fulfilled to the GSMP
Purchasers' reasonable satisfaction or waived by the GSMP Purchasers, or (ii)
the Issuer shall have issued Notes with an aggregate principal amount of less
than $500,000,000.00, then (without waiving any other rights or remedies such
GSMP Purchaser may have by reason of such failure or such non-satisfaction by
the Issuer) the Issuer shall pay to the GSMP Purchasers on the earlier of the
Closing Date and the Outside Closing Date by wire transfer of immediately
available funds to the bank accounts set forth adjacent such GSMP Purchaser's
name on Schedule 2.2, an amount equal to the Non-Utilization Fee. Without
limiting the foregoing, if on the earlier of the Closing Date or the Outside
Closing Date, the Issuer shall have failed to deliver to the GSMP Purchasers the
Notes as provided in Section 2.3(b), or any of the conditions specified in
Section 3 shall not have been fulfilled to the GSMP Purchasers' reasonable
satisfaction or waived by the GSMP Purchasers, then each GSMP Purchaser shall be
relieved of all further obligations under this Agreement without thereby waiving
any other rights or remedies such GSMP Purchaser may have by reason of such
failure or such non-satisfaction by the Issuer.
SECTION 3.
CONDITIONS TO CLOSING
---------------------
Each GSMP Purchaser's obligation to purchase and pay for the Notes to
be purchased by it on the Closing Date is subject to the satisfaction, or waiver
in accordance with Section 9.4, of the following conditions on or before the
Closing Date:
3.1. Financial Information.
Holdings shall have (i) issued an earnings release substantially in the
form of the draft earnings release provided to the GSMP Purchasers on or about
the date hereof and (ii) filed with the SEC an annual report on Form 10-K for
the fiscal year ended December 31, 2008 that does not contain or disclose any
information that differs in any material respect from the information or
disclosure set forth in Holdings' draft annual report on Form 10-K for the
fiscal year ended December 31, 2008 provided to the GSMP Purchasers on or about
the date hereof and the other reports, financial statements, certificates and
other written information furnished by or on behalf of Holdings to the GSMP
Purchasers, taken as a whole.
9
3.2. Change of Control.
There shall not have occurred, been approved by Holdings' Board of
Directors or announced any events or changes that individually or in the
aggregate, have resulted in or would result in, as applicable, a Change of
Control.
3.3. Representations and Warranties.
The representations and warranties of the Obligors as set forth in this
Agreement shall be true and correct in all material respects on and as of the
Closing Date to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date; provided that,
in each such case any representations and warranties that are qualified by
materiality, Material Adverse Effect or a similar qualification shall be true
and correct in all respects.
3.4. Financing Documents.
The GSMP Purchasers shall have received sufficient copies of each
Financing Document originally executed or, except in the case of the Notes,
facsimiles (followed promptly by originals) and delivered by each applicable
Obligor.
3.5. Organizational Documents; Incumbency.
The GSMP Purchasers shall have received a secretary's certificate,
dated as of the Closing Date, in the form of Exhibit 3.5, attaching the
documents listed in clauses (i) through (iv) below, and certifying, among other
things, as to: (i) each Organizational Document executed and delivered by each
Obligor, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, each dated the Closing Date or a recent date
prior thereto; (ii) signature and incumbency certificates of the officers or
directors, as the case may be, of such Person executing the Financing Documents
to which it is a party; (iii) resolutions of the Board of Directors or similar
governing body of each Obligor approving and authorizing the execution, delivery
and performance of this Agreement and the other Financing Documents to which it
is a party, certified as of the Closing Date by its secretary or an assistant
secretary as being in full force and effect without modification or amendment;
and (iv) a good standing certificate from the applicable Governmental Authority
of each Obligor's jurisdiction of incorporation, organization (to the extent
available) or formation dated a recent date prior to the Closing Date.
3.6. Opinions of Counsel to Obligors.
The GSMP Purchasers and their respective counsel shall have received
originally executed copies of the favorable written opinions of (i) Weil,
Gotshal & Manges LLP, special New York counsel for the Obligors, in the form of
(or substantially in the form of and reasonably acceptable to the GSMP
Purchasers) Exhibit 3.6(a), (ii) Weil, Gotshal & Manges LLP, special English
counsel for the Obligors, in the form of (or substantially in the form of and
reasonably acceptable to the GSMP Purchasers) Exhibit 3.6(b) and (iii) Appleby,
special Bermuda counsel for the Obligors, in the form of (or substantially in
the form of and reasonably acceptable to the GSMP Purchasers) Exhibit 3.6(c),
dated as of the Closing Date (and each Obligor hereby instructs such counsel to
deliver such opinions to the GSMP Purchasers).
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3.7. Solvency Certificate.
On the Closing Date, the GSMP Purchasers shall have received a solvency
certificate, in the form of Exhibit 3.7, from the chief financial officer of
each of the Issuer and each Initial Guarantor with respect to the solvency of
the Issuer or an Initial Guarantor, as applicable, on a consolidated basis
reasonably acceptable to the GSMP Purchasers.
3.8. Consents.
The GSMP Purchasers shall have received satisfactory evidence that
Holdings and its Subsidiaries have obtained all governmental and material
third-party consents necessary in connection with the Transactions.
3.9. PATRIOT Act Information.
At least five (5) days prior to the Closing Date, the GSMP Purchasers
shall have received all documentation and other information required by bank
regulatory authorities under applicable "know-your-customer" and anti-money
laundering rules and regulations, including the PATRIOT Act.
3.10. Payment of Expenses; Closing Payment.
At the Closing (i) each GSMP Purchaser shall have received from the
Issuer, the Closing Payments required to be paid under Section 2.3(b), by
netting such amounts from the applicable portion of the principal amount of the
Notes being purchased by such GSMP Purchaser, as provided in said Section, and
(ii) each GSMP Purchaser and counsel for the GSMP Purchasers shall have received
from the Issuer all other fees required to be paid, and, in accordance with
Section 8.1, all reasonable costs and expenses for which invoices have been
presented (including the fees of Fried, Frank, Harris, Shriver & Jacobson LLP,
counsel to the GSMP Purchasers); provided that to the extent invoices therefor
have not been so presented at the Closing, all other fees shall be paid within
10 days of an invoice having been presented to the Issuer.
3.11. Officer's Certificate.
Each of the Obligors shall have delivered to the GSMP Purchasers an
officer's certificate, in the form of Exhibit 3.11, executed by a Senior Officer
of such Obligor.
3.12. Satisfaction of Existing Bridge Loan.
The Issuer shall have delivered to the GSMP Purchasers satisfactory
evidence that substantially contemporaneously with the issuance of the Notes all
of the proceeds of the issuance of the Notes will be utilized as set forth in
Section 4.14 and Section 6.5.
3.13. Subordination of Intercompany Debt.
The Issuer shall have delivered to the GSMP Purchasers satisfactory
evidence that all Indebtedness (other than any guarantee provided by Holdings in
favor of a Wholly-Owned Subsidiary in respect of debt of another Wholly-Owned
Subsidiary the subordination of which would be prohibited by the FSA or the UK
Pension Trustee, including to the extent applicable, the WGHL/Willis Guarantee)
of Holdings or any of its Wholly-Owned Subsidiaries to Holdings or any of its
Wholly-Owned Subsidiaries that is owed by an Obligor to a Non-Obligor in excess
of $100,000,000.00 in the aggregate has been subordinated pursuant to
subordination agreements substantially in the form attached to the Indenture as
Exhibit F or on terms reasonably satisfactory to the GSMP Purchasers.
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3.14. Registration.
The Issuer shall have delivered to the GSMP Purchasers satisfactory
evidence that the Issuer has re-registered as a public limited company as
defined in the Companies Act of 2006.
3.15. Listing.
The Issuer shall have used commercially reasonable efforts to procure
and maintain the listing (the "Listing") of the Notes on the Channel Islands
Stock Exchange or any other stock exchange reasonably acceptable to the GSMP
Purchasers, which is a "recognised stock exchange" as defined in s.1005 Income
Tax Act 2007 of the United Kingdom (the "Stock Exchange") on or prior to the
Closing Date.
3.16. Rating.
The Issuer's Debt Rating shall be an Investment Grade Rating and no
negative ratings watch indicating the Issuer's Debt Rating could fall below an
Investment Grade Rating shall have been issued by any Rating Agency.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Obligor jointly and severally makes the following representations
and warranties to the Purchasers on and as of the date hereof and as of the
Closing Date:
4.1. Organization; Power.
Each of the Obligors and each of their respective Subsidiaries is duly
incorporated or organized, as applicable, validly existing and where relevant in
good standing under the Laws of the jurisdiction of its organization or
incorporation, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
4.2. Authorization; Enforceability.
The Transactions to be entered into by each Obligor is within such
Obligor's corporate powers and has been duly authorized by all necessary
corporate and, if required, stockholder action. Each Financing Document has been
duly executed and delivered by the Obligors and constitutes, and each Obligor to
which any Financing Document is to be a party, when executed and delivered by
such Obligor, will constitute, a legal, valid and binding obligation of such
Obligor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
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4.3. Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any material applicable Law or the charter, by-laws or other
Organizational Documents of any of the Obligors or any of their respective
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any material indenture, agreement or other material
instrument, except as disclosed on Schedule 4.3, binding upon the Obligors or
any of their respective Subsidiaries or their assets, or give rise to a right
thereunder to require any payment to be made by any Obligors or any of their
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Obligors or any of their respective Subsidiaries pursuant to
the terms of such material indenture, agreement or other material instrument.
4.4. Financial Condition.
Holdings has heretofore furnished to the GSMP Purchasers its
consolidated balance sheet and statements of income, stockholders equity and
cash flows (i) as of and for the fiscal year ended December 31, 2007, reported
on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended September 30,
2008, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Holdings and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above. Holdings and its Subsidiaries have (i) no
outstanding Investments, other than Permitted Investments and (ii) no
outstanding Indebtedness, other than Indebtedness that could have been incurred
pursuant to Section 4.07(b) of the Indenture.
4.5. Properties; Material Contracts.
(a) Each of Holdings and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes and except where the failure to have such
good title or valid leasehold interests, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.
(b) Each of Holdings and its Subsidiaries owns, or is licensed to use,
all trademarks, trade names, copyrights, patents and other intellectual property
material to its business, and the use thereof by Holdings and its Subsidiaries
does not Infringe upon the rights of any other Person, except for any such
Infringements that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
(c) As of the Closing Date, neither the Issuer nor any of its
Subsidiaries is party to any Material Contract, except as set forth on Part I of
Schedule 4.5. Except for the Credit Agreement and the Existing Bridge Loan and
except as set forth on Part II of Schedule 4.5, neither Holdings nor any of its
Subsidiaries is subject to any material, consensual contractual encumbrance or
restriction as set forth in clauses (i), (ii) or (iii) of Section 4.15(a) of the
Indenture.
4.6. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings (including investigative
proceedings) by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of any of the Obligors, threatened against or
affecting Holdings or any of its Subsidiaries, that would reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than as disclosed on Schedule 4.6).
13
(b) Other than as disclosed on Schedule 4.6 and except with respect to
any other matters that, individually or in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect, neither Holdings nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability or (iii) has received notice of any claim with respect to any
Environmental Liability.
4.7. Compliance with Laws; Absence of Default.
Each of Holdings and its Subsidiaries is in compliance with all Laws
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
4.8. Investment Company Status; Governmental Regulations.
Neither Holdings nor any of its Subsidiaries is an "investment company"
as defined in, or subject to regulation under, the Investment Company Act.
4.9. Taxes.
Each of Holdings and its Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
Holdings or such Subsidiary, as applicable, have set aside on its books adequate
reserves or (b) to the extent that the failure to do so would not reasonably be
expected to result in a Material Adverse Effect.
4.10. ERISA; Employee Matters.
(a) No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, nor has any UK Pension Event occurred or is
reasonably expected to occur that when taken together with all other such UK
Pension Events for which liability is reasonably expected to occur, would
reasonably be expected to result in a Material Adverse Effect. The present value
of all accumulated benefit obligations under each Pension Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of such Pension Plan,
and the present value of all accumulated benefit obligations of all underfunded
Pension Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Pension Plans, in each case, by an
amount that has had, or would reasonably be expected to have, a Material Adverse
Effect.
(b) Neither Holdings nor any of its Subsidiaries is engaged in any
unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice complaint pending against
Holdings or any of its Subsidiaries or, to the best knowledge of Holdings,
threatened against any of them before the National Labor Relations Board and no
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement that is so pending against Holdings or any of its
Subsidiaries or to the best knowledge of Holdings, threatened against any of
them, (b) no strike or work stoppage in existence or threatened involving
Holdings or any of its Subsidiaries, and (c) to the best knowledge of Holdings,
no union representation question existing with respect to the employees of
Holdings or any of its Subsidiaries and, to the best knowledge of Holdings, no
union organization activity that is taking place, except (with respect to any
matter specified in clause (a), (b) or (c) above, either individually or in the
aggregate) such as is not reasonably likely to have a Material Adverse Effect.
14
4.11. Disclosure.
None of the reports, financial statements, certificates or other
information furnished by or on behalf of Holdings or any of its Subsidiaries to
any GSMP Purchaser in connection with the negotiation of this Agreement or the
Transactions, taken as a whole, contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Obligors
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
4.12. Subsidiaries.
Schedule 4.12 sets forth the name and jurisdiction of organization or
incorporation of, and the direct or indirect ownership interest of Holdings in,
each of its Subsidiaries, and identifies each of its Subsidiaries that is an
Initial Guarantor as of the Closing Date.
4.13. Solvency.
Immediately after the consummation of the Transactions, (a) the fair
value of the assets of each Obligor, at a fair valuation, will exceed its debts
and liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Obligor will be greater than the amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Obligor will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; (d) each Obligor will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Closing Date; (e) no Obligor, by reason of actual or anticipated
financial difficulties, has commenced or intends to commence negotiations with
one or more of its creditors with a view to rescheduling any of its
Indebtedness; and (f) no moratorium has been declared and, in the opinion of
Holdings and the Issuer, no moratorium is reasonably likely to be declared in
the foreseeable future, in each case, in respect of any Indebtedness of any
Obligor.
4.14. Margin Stock.
Neither Holdings nor any of its Subsidiaries is engaged, and none of
them will engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U), or extending credit for the purpose of purchasing or carrying
margin stock.
4.15. Insurance.
(a) Holdings and each of its Subsidiaries maintain insurance insuring
against such losses and risks as Holdings reasonably believes is adequate to
protect Holdings and each of its Subsidiaries and their respective businesses,
except where the failure to maintain such insurance would not reasonably be
expected to have a Material Adverse Effect; (b) Holdings and its Subsidiaries
are in compliance with the terms of such policies and instruments in all
material respects; (c) there are no claims by Holdings or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause
that would reasonably be expected to have a Material Adverse Effect; (d) none of
Holdings or any of its Subsidiaries has been refused any insurance coverage
sought or applied for; and (e) none of Holdings or any of its Subsidiaries has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have a Material Adverse Effect (other than
as set forth on Schedule 4.15) whether or not arising from transactions in the
ordinary course of business.
15
4.16. Financial Reporting.
Holdings and each of its Subsidiaries maintain a system of internal
control over financial reporting sufficient to provide reasonable assurance that
(a) Holdings' financial records, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of Holdings; (b)
transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and that
receipts and expenditures of Holdings are being made only in accordance with
authorizations of management and directors of Holdings; and (c) unauthorized
acquisition, use or disposition of Holdings' assets that could have a material
effect on Holdings' financial statements are detected in a timely manner.
Holdings maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15 under the Exchange Act) that are effective in ensuring that
information required to be disclosed by Holdings in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the rules and forms of the Commission,
including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by Holdings in the reports that it files or
submits under the Exchange Act is accumulated and communicated to Holdings'
management, including its principal executive officer or officers and its
principal financial officer or officers, as appropriate to allow timely
decisions regarding required disclosure.
4.17. Duties and Taxes.
(a) No stamp duties, Stock Exchange Tax, value-added Tax, withholding
or any other similar duty or Tax is payable in the United States, the United
Kingdom, Bermuda or any other jurisdiction in which Holdings or any of its
Subsidiaries is organized or engaged in business for Tax purposes or, in each
case, any political subdivision thereof or any authority having power to tax, in
connection with the execution or delivery of this Agreement by the Obligors or
the sale or delivery of the Notes to the Purchasers.
(b) Under the current laws and regulations of Bermuda, all payments
made on the Notes may be paid by Holdings to the holder thereof in United States
dollars that may be freely transferred out of Bermuda and all such payments made
to holders thereof who are non-residents of Bermuda will not be subject to
income, withholding or other Taxes under the laws or regulations of Bermuda and
will otherwise be free of any other Tax, duty, withholding or deduction in
Bermuda and without the necessity of obtaining any governmental authorization in
Bermuda.
(c) Under the current laws and regulations of the United Kingdom, all
payments made on the Notes may be paid by the Issuer or any Guarantor to the
holder thereof in United States dollars that may be freely transferred out of
the United Kingdom and all such payments made to holders thereof who are
non-residents of the United Kingdom will not be subject to income, withholding
or other Taxes under the laws or regulations of the United Kingdom and will
otherwise be free of any other Tax, duty, withholding or deduction in the United
Kingdom and without the necessity of obtaining any governmental authorization in
the United Kingdom.
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4.18. Immunity.
None of the Obligors or their respective properties or assets has any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of the United States, England and Wales
or Bermuda.
4.19. Judgments.
(a) A final and conclusive judgment of a court located outside Bermuda
against Holdings based upon this Agreement, the Notes or the Indenture,
including the Guarantee of Holdings (other than a court of jurisdiction to which
The Judgments (Reciprocal Enforcement) Act, 1958 applies, and it does not apply
to the United States, including the federal and state courts of the Borough of
Manhattan in New York City) under which a sum of money is payable (not being a
sum payable in respect of taxes or other charges of a like nature, in respect of
a fine or other penalty, or in respect of multiple damages as defined in The
Protection of Trading Interests Act 1981), may be the subject of enforcement
proceedings in the Supreme Court of Bermuda under the common law doctrine of
obligation by action on the debt evidenced by the judgment of such court located
outside Bermuda; provided that:
(i) the court which rendered the judgment was competent to
hear the action in accordance with private international law principles
as applied in Bermuda; and
(ii) the judgment is not contrary to public policy in Bermuda,
has not been obtained by fraud or in proceedings contrary to natural
justice and is not based on an error in Bermuda law.
(b) A judgment rendered by a court of the State of New York or a
Federal court of the United States in relation to this Agreement, the Notes or
the Indenture, including the Guarantee of any Guarantor, for a final and
conclusive judgment for debt or a definite sum of money will be recognized and
enforced in England provided that the party against whom the judgment was given
properly submitted to the jurisdiction of the courts of the State of New York or
a Federal court of the United States (which had jurisdiction under its own laws)
and none of the following circumstances apply:
(i) the judgment was procured by fraud;
(ii) the judgment was given contrary to the rules of natural
or substantial justice, for example where a defendant is deprived of
notice of, or an adequate opportunity to take part in, the proceedings;
(iii) recognition of the judgment would be contrary to English
public policy;
(iv) the judgment conflicts with an English judgment or a
foreign judgment given earlier in time;
(v) enforcement of the judgment would involve the enforcement
of a foreign penal or revenue or other public law;
(vi) enforcement of the judgment would contravene the
Protection of Trading Interests Act of 1980, section 5 of which
precludes, among other things, the enforcement in the United Kingdom of
any judgment given by a court of an overseas country which is a
judgment for multiple damages which exceed the compensatory element of
the judgment award; or
17
(vii) recognition or enforcement thereof would be contrary to
the terms of the Administration of Justice Act 1920, the Foreign
Judgments (Reciprocal Enforcement) Act 1933 or the Conventions.
4.20. No Registration Required.
Subject to accuracy when made of with the representations and
warranties set forth in Section 5 and compliance by the GSMP Purchasers with the
procedures set forth in Section 7, it is not necessary in connection with the
offer, sale and delivery of the Notes to the GSMP Purchasers in the manner
contemplated by this Agreement and the Indenture and the other Financing
Documents, until such time as the Notes are sold pursuant to an effective
registration statement, (i) to register the Notes under the Securities Act, or
(ii) to qualify the Indenture under the Trust Indenture Act.
4.21. No Integration of Offerings or General Solicitation.
None of the Obligors, their respective Affiliates, or any Person acting
on any of their behalf (other than the Purchasers, as to whom the Obligors make
no representation or warranty) has, within the six-month period immediately
prior to the date hereof, directly or indirectly, solicited any offer to buy or
offered to sell, sold, or issued and will not, for six months following the date
hereof, directly or indirectly, solicit any offer to buy or offer to sell, sell,
or issue in the United States or to any U.S. person (as such terms are defined
in Regulation S) the Notes or any security of the Issuer or any other Obligor,
except to the extent such offer, sale, issuance or solicitation, when integrated
with the offering contemplated by this Agreement would not require registration
under the Securities Act in reliance on Regulation D thereunder.
None of the Obligors, their respective Affiliates, or any Person acting
on any of their behalf (other than the Purchasers, as to whom the Obligors make
no representation or warranty) has engaged or will engage, in connection with
the offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502.
With respect to those Notes sold in reliance upon Regulation S, (a)
none of the Obligors, their respective Affiliates, or any Person acting on any
of their behalf (other than the Purchasers, as to whom the Obligors make no
representation or warranty) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S and (b) each of the Obligors and
their respective Affiliates and any Person acting on any of their behalf (other
than the Purchasers, as to whom the Obligors make no representation or warranty)
has complied and will comply with the offering restrictions set forth in
Regulation S.
4.22. Eligibility for Resale under Rule 144A.
Subject to the accuracy of the representations and warranties set forth
in Section 5 and compliance by the GSMP Purchasers with the procedures set forth
in Section 7, the Notes are eligible for resale pursuant to Rule 144A and will
not be, at the Closing Date, of the same class as securities listed on a
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
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4.23. PATRIOT Act.
To the extent applicable, Holdings and its Subsidiaries are in
compliance, in all material respects, with (a) the Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (b) the
PATRIOT Act.
SECTION 5.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASERS
--------------------------------------------------------
5.1. Representation and Warranties.
Each GSMP Purchaser, severally and not jointly, represents and warrants
to the Issuer as of the date hereof as follows:
(a) Purchase.
(i) Such GSMP Purchaser is acquiring the Notes for its own
account, for investment and not with a view to any distribution thereof
within the meaning of the Securities Act.
(ii) Such GSMP Purchaser understands that the Notes have not
been and, except as provided in the Registration Rights Agreement with
respect to the Notes, will not be registered under the Securities Act
or any state or other securities law, that the Notes are being issued
by the Issuer in transactions exempt from the registration requirements
of the Securities Act, that it must hold the Notes indefinitely and not
offer or sell the Notes except pursuant to effective registration
statements under the Securities Act or pursuant to applicable
exemptions from registration under the Securities Act and in compliance
with applicable state laws and in compliance with Section 7, without
prejudice, however, to its right to dispose of its property being at
all times within its control, and in particular its right at all times
to sell or otherwise dispose of all or any part of the Notes.
(iii) Such GSMP Purchaser is a QIB or an "accredited investor"
(within the meaning of Regulation D).
(iv) Such GSMP Purchaser does not own any capital stock of
Holdings.
(v) Such GSMP Purchaser is either (i) not a bank that is
entering into this Agreement in the ordinary course of its trade or
business or (ii) a "United States person" within the meaning of Section
7701(a)(30) of the Code.
(b) Organization; Power.
Each of the GSMP Purchasers is duly organized, validly existing and in
good standing under the Laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
(c) Power; Authorization; Enforceability.
19
Each Financing Document to be entered into by each GSMP Purchaser is
within such GSMP Purchaser's corporate powers and have been duly authorized by
all necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by each GSMP Purchaser and constitutes, a
legal, valid and binding obligation of each GSMP Purchaser, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
5.2. Tax Forms.
At the Closing, GSMP V Onshore shall deliver to the Issuer a properly
completed and duly executed Form W-9 of GSMP V Onshore, and each of GSMP V
Offshore and GSMP V Institutional shall deliver to the Issuer a properly
completed and duly executed Form W-8BEN of such GSMP Purchaser.
5.3. Listing.
The GSMP Purchasers shall cooperate with the Issuer in a commercially
reasonable manner in connection with obtaining the Listing and shall provide
such information to the Stock Exchange as may be reasonably requested by the
Issuer.
SECTION 6.
COVENANTS
---------
Holdings, the Issuer and the other Obligors jointly and severally
covenant and agree with each GSMP Purchaser and, when applicable, any Subsequent
Holder and the GSMP VCOC that so long as such GSMP Purchaser or, when
applicable, any Subsequent Holder holds any Notes and until the principal amount
of (and premium, if any, on) such Notes, and all interest, and other obligations
hereunder in respect thereof (other than indemnity obligations that have not yet
become due and payable), shall have been paid in full:
6.1. Future Reports to GSMP Purchasers, the GSMP VCOC, and any
Subsequent Holder.
Holdings and the Issuer shall deliver to such GSMP Purchaser, the GSMP
VCOC and any Subsequent Holder:
(a) as soon as available and in any event within 120 days (or, if
earlier, the date that is fifteen (15) days after the reporting date for such
information required by the SEC) after the end of each fiscal year of the
Issuer, the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Issuer and its
consolidated Subsidiaries and of Holdings and its consolidated Subsidiaries as
of the end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by Deloitte & Touche
LLP or other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without any
material qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Issuer and its
consolidated Subsidiaries and Holdings and its consolidated Subsidiaries,
respectively, in each case on a consolidated basis in accordance with GAAP
consistently applied;
(b) as soon as available and in any event within 60 days (or, if
earlier, the date that is 15 days after the reporting date for such information
required by the SEC) after the end of each of the first three fiscal quarters of
each fiscal year of the Issuer, the consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the Issuer and
its consolidated Subsidiaries and of Holdings and its consolidated Subsidiaries
as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by a Financial Officer of the
Issuer or Holdings, as applicable, as presenting fairly in all material respects
the financial condition and results of operations of the Issuer and its
consolidated Subsidiaries and Holdings and its consolidated Subsidiaries,
respectively, in each case on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
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(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a Compliance Certificate executed by a Financial Officer of
the Issuer or Holdings, as applicable, (i) certifying as to whether a Default
that has not been disclosed in any prior Compliance Certificate (unless such
Default exists anew or continues to exist at such time, in which case it shall
be included on such Compliance Certificate) has occurred and, if such Default
has occurred or exists, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations of the financial covenants set forth in any Credit
Facilities, and demonstrating compliance therewith, (iii) stating whether any
Material Acquisition has occurred during the period covered by such financial
statements and (iv) stating whether any change in GAAP or in the application
thereof that has not been disclosed in any prior Compliance Certificate has
occurred since the date of the audited financial statements for the fiscal year
ended December 31, 2007 that would be relevant in the calculation of the
Consolidated Leverage Ratio and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause
(a) above, a report from the accounting firm that reported on such financial
statements, stating that (i) the financial information in the certificate
prepared by a Financial Officer of the Issuer or Holdings, as applicable,
pursuant to clause (c) above has been accurately extracted from the sources
identified therein and, where applicable, agrees with the underlying accounting
records, (ii) the calculations of the financial covenants in any Credit
Facilities set forth in such certificate are arithmetically correct and (iii)
the financial information set forth in such certificate is, as to elements and
composition, presented in accordance with the relevant accounting definitions
set forth in Section 1.01;
(e) promptly after the same become publicly available but no later than
the date the same are required to be filed or furnished, copies of all periodic
and other reports, proxy statements and other materials filed by the Issuer or
any Obligor or any of their Subsidiaries with the SEC, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by Holdings to its shareholders
generally, as the case may be;
(f) promptly after S&P or Moody's shall have announced a change in the
Debt Rating, written notice of such change;
(g) promptly following a request by the GSMP Purchasers, the GSMP VCOC
or any Subsequent Holder, all documentation and other information that the GSMP
Purchasers, the GSMP VCOC or any Subsequent Holder reasonably requests in order
to comply with its ongoing obligations under applicable "know your customer" and
anti-money laundering rules and regulations, including the PATRIOT Act; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of Holdings,
the Issuer or any of their Subsidiaries, or compliance with the terms of this
Agreement, as the GSMP Purchasers, the GSMP VCOC or any Subsequent Holder may
reasonably request.
21
Documents required to be delivered pursuant to Section 6.01(a), (b) or
(e) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered within the
time frames set forth in such Sections, shall be deemed to have been delivered
on the date (i) on which Holdings or the Issuer posts such documents, or
provides a link thereto on Holdings' website on the Internet at the website
address as set forth on Section 4.02 of the Indenture; or (ii) on which such
documents are posted on Holdings' or the Issuer's behalf on an Internet or
intranet website, if any, to which each GSMP Purchaser, the GSMP VCOC and any
Subsequent Holder have access (whether a commercial or third-party website);
provided that: (i) Holdings the Issuer, as applicable, shall deliver paper
copies of such documents to any GSMP Purchaser, the GSMP VCOC and any Subsequent
Holder upon the written request of such Person and until a written request to
cease delivering paper copies is given by such Person and (ii) Holdings or the
Issuer, as applicable, shall notify the GSMP Purchasers, the GSMP VCOC and any
Subsequent Holder (by telecopier or electronic mail) of the posting of any such
documents and provide to the GSMP Purchasers, the GSMP VCOC and any Subsequent
Holder by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance Holdings
and the Issuer shall be required to provide paper copies of the Compliance
Certificates required by Section 6.01(c) to the GSMP Purchasers, the GSMP VCOC
and any Subsequent Holder . Except for such Compliance Certificates, the GSMP
Purchasers, the GSMP VCOC and any Subsequent Holder shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by Holdings
or the Issuer with any such request for delivery, and each GSMP Purchaser, the
GSMP VCOC and any Subsequent Holder shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
6.2. Notices of Material Events.
Holdings or the Issuer will furnish to the GSMP Purchasers,
the GSMP VCOC and any Subsequent Holder prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the Issuer
or any Affiliate thereof that would reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, would reasonably be expected to result in
a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.2 shall be accompanied by a
statement of a Financial Officer or other Senior Officer of the Issuer or
Holdings setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
6.3. Books and Records; Access.
The Issuer will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made in all material respects of all dealings and transactions in relation to
its business and activities. Each of the Obligors will, and will cause each of
their Subsidiaries to:
22
(a) upon reasonable notice at reasonable times from time to time,
provide each GSMP Purchaser and the GSMP VCOC (and any Affiliate of a GSMP
Purchaser that is a venture capital operating company) reasonable opportunities
to meet and consult with and advise the management of the Issuer and each of
their Subsidiaries on all matters relating to the operation of the Issuer and
each such Subsidiary and management of Holdings and each of its Subsidiaries
with respect to the business of Holdings and each of its Subsidiaries;
(b) subject to compliance with applicable laws and upon reasonable
prior notice, give each GSMP Purchaser and the GSMP VCOC (and any parent company
of a GSMP Purchaser that is a venture capital operating company) and their
authorized representatives reasonable access during normal business hours to all
books of account and records, facilities and properties of the Issuer and its
Subsidiaries, and permit each GSMP Purchaser and the GSMP VCOC (and any parent
company of a GSMP Purchaser that is a venture capital operating company) to make
such copies and inspections thereof as any such Person may reasonably request,
and discuss the affairs, finances and accounts with the officers thereof;
(c) subject to compliance with applicable laws, promptly provide true
and correct copies of all documents, reports, financial data, and such
additional financial and other information with respect to the Issuer and its
Subsidiaries as each GSMP Purchaser or the GSMP VCOC (and any parent company of
a GSMP Purchaser that is a venture capital operating company) may from time to
time reasonably request; and
(d) upon reasonable notice at reasonable times from time to time,
permit any representative designated by any GSMP Purchasers or the GSMP VCOC
(and any parent company of a GSMP Purchaser that is a venture capital operating
company), upon reasonable prior notice, to visit and inspect its properties, and
to examine and make extracts from its books and records.
The rights provided to the GSMP VCOC (and any parent company
of a GSMP Purchaser that is a venture capital operating company) under this
Section 6 are intended to provide the GSMP VCOC (and any parent company of a
GSMP Purchaser that is a venture capital operating company) with the right to
substantially participate in, or substantially influence the conduct of, the
management of the Issuer for the purpose of qualifying the GSMP VCOC's (and any
parent company of a GSMP Purchaser that is a venture capital operating company)
investment in the Issuer as a "venture capital investment" for purposes of the
United States Department of Labor Regulation 29 C.F.R. Section
2510.3-101(d)(3)(i) (the "Plan Asset Regulation"). If necessary, upon the advice
of counsel, GSMP VCOC (and any parent company of a GSMP Purchaser that is a
venture capital operating company) shall be provided with additional
participation and management rights as the GSMP VCOC (and any parent company of
a GSMP Purchaser that is a venture capital operating company) may deem necessary
for the purpose of qualifying each GSMP VCOC's (and any parent company of a GSMP
Purchaser that is a venture capital operating company) investment in WNA as a
"venture capital investment" for purposes of the Plan Asset Regulation.
6.4. Tax Treatment.
Holdings and each Obligor will treat the Issuer as the debtor and
borrower under the Notes for all applicable Tax purposes, unless otherwise
required pursuant to a "determination" within the meaning of Section 1313(a) of
the Code or a comparable provision of state, local or non-U.S. tax law.
23
6.5. Use of Proceeds.
(a) The Issuer shall use the proceeds of the issuance of the Notes
solely to pay fees and expenses related to the Transactions and to make an
intercompany loan to WNA, and WNA will use the proceeds of such intercompany
loan solely to repay a portion of WNA's Existing Bridge Loan in accordance with
the terms thereof.
(b) No part of the proceeds of the Notes will be used, directly or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.
SECTION 7.
PROVISIONS RELATING TO RESALES OF NOTES
---------------------------------------
7.1. Private Offerings.
Offers and sales of the Notes will be made only by the Purchasers or
Affiliates thereof who are qualified to do so in the jurisdictions in which such
offers or sales are made. Each such offer or sale shall be made in accordance
with the Indenture only to (i) persons who are QIBs, (ii) accredited investors
(as defined in Regulation D) that the offeror or seller reasonably believes to
be and, with respect to sales and deliveries, are accredited investors, or (iii)
non-U.S. persons outside the United States (as such terms are defined in
Regulation S) to whom offers and sales of the Notes may be made in reliance upon
Regulation S and in accordance with applicable foreign securities laws.
7.2. Procedures and Management Cooperation in Private Offerings.
(a) The Issuer shall use its commercially reasonable best efforts to
cause the Notes to (i) be registered in book-entry form in the name of Cede &
Co., as nominee of The Depository Trust Company ("DTC") pursuant to a customary
form DTC Agreement, and (ii) be eligible for the National Association of
Securities Dealers, Inc. PORTAL market.
(b) If requested by the Required Holders, without prejudice to the
Registration Rights Agreement, the Issuer and its Subsidiaries will assist the
GSMP Purchasers in completing any sale process undertaken in connection with the
private resale of the Notes or any portion thereof (including any such re-sales
of the Notes pursuant to any Private Offering), to any number of prospective
Subsequent Purchasers, subject to Section 7.1 hereof, by (i) providing direct
contact between senior management and advisors and prospective Subsequent
Purchasers, (ii) responding to inquiries of, and providing answers to,
prospective Subsequent Purchasers, in each such case subject to reasonable
confidentiality undertakings, and (iii) providing assistance in completion of
the prospective Subsequent Purchasers; provided that such assistance shall not
be required more than two times per year or more than five times during the term
of the Notes (and it being understood that such assistance will not include a
preparation of an offering memorandum or a similar document and will otherwise
be limited to assistance set forth under items (i) through (iii) above.
7.3. No Integration.
24
The Issuer shall not, and shall not permit its Affiliates to, make any
offer or sale of securities of any class that is or will be integrated with the
sale of the Notes by the Issuer to the Purchasers in a manner that would require
registration of the Notes under the Securities Act.
SECTION 8.
EXPENSES, INDEMNIFICATION AND CONTRIBUTION
------------------------------------------
8.1. Expenses.
The Issuer will (regardless of whether the Closing occurs or not) after
presentation of a summary invoice therefor, reimburse the GSMP Purchasers for
all reasonable expenses (including reasonable attorneys' fees and disbursements
of one firm of outside counsel and any local counsel, if necessary, and other
advisors incurred by the GSMP Purchasers and any sales, use or similar Taxes
(including additions to such Taxes, if any) arising in connection with the
transactions contemplated by this Agreement and the other Financing Documents
and in connection with any amendments, waivers or consents under or in respect
of this Agreement or the other Financing Documents (whether or not such
amendment, waiver or consent becomes effective), including the reasonable and
documented out-of-pocket costs and expenses incurred in enforcing, defending or
declaring (or determining whether or how to enforce, defend or declare) any
rights or remedies under this Agreement or the other Financing Documents or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, or the other Financing
Documents, including in connection with any insolvency or bankruptcy of the
Issuer or any of its Subsidiaries or in connection with any work-out or
restructuring of the transactions contemplated hereby, by the Financing
Documents or by the Notes.
8.2. Indemnification.
The Issuer shall indemnify and hold harmless the GSMP Purchasers and
any Subsequent Holder and each of their respective Affiliates, partners,
stockholders, members, officers, directors, agents, employees and controlling
Persons (each, an "Indemnitee") from and against any and all actual losses,
claims, damages or liabilities to any such Indemnitee in connection with or as a
result of (a) the execution or delivery of any Financing Document or the
performance by the Issuer and its Subsidiaries of its obligations hereunder and
under the other Financing Documents or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (b) the issuance of Notes
or the use of the proceeds therefrom, (c) any liability with respect to
Environmental Claims or (d) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages or liabilities are determined by a court of
competent jurisdiction by final and non-appealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee.
8.3. Waiver of Punitive Damages.
To the extent permitted by applicable law, none of the Obligors shall
assert, and each hereby waives, any claim against the other parties (including
their respective Affiliates, partners, stockholders, members, officers,
directors, agents, employees and controlling Persons), on any theory of
liability for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, the other Financing Documents or the use of proceeds
thereof.
8.4. Survival.
The obligations of the Issuer under this Section 8 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement and the termination of this Agreement for any reason
whatsoever.
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8.5. Tax Treatment of Indemnification Payments.
Any indemnification payment pursuant to this Agreement shall, to the
extent consistent with applicable law, be treated for all Tax purposes as an
adjustment to the Purchase Price.
SECTION 9.
MISCELLANEOUS
-------------
9.1. Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below if the sender on the same day sends a confirming copy of
such notice by a recognized overnight delivery service (charges prepaid), (c)
the day following the day (except if not a Business Day then the next Business
Day) on which the same has been delivered prepaid to a reputable national
overnight air courier service or (d) the third Business Day following the day on
which the same is sent by certified or registered mail, postage prepaid; in each
case to the respective parties at the address set forth below, or at such other
address as such party may specify by written notice to the other parties hereto:
(i) if to a GSMP Purchaser or the GSMP VCOC, to it at the
address specified on Schedule 2.2; with a copy to Fried, Frank, Harris,
Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004,
Attention: F. William Reindel, Esq. and J. Christian Nahr, Esq.,
Facsimile: 212-859-4000 or at such other address as such Purchaser or
its nominee shall have specified to the Issuer in writing;
(ii) if to a Subsequent Purchaser, to it at the address
specified on its counterpart signature page or at such other address as
such Subsequent Purchaser or its nominee shall have specified to the
Issuer in writing; and
(iii) if to the Issuer or any Initial Guarantor to it at:
Willis Group Holdings Limited, 51 Lime Street, London R13M 7DQ, United
Kingdom, Attention: Adam G. Ciongoli, Telephone: 011-44-203-124-8332,
Facsimile: 44 (0)20 3124 7183; with a copy to: Willis Legal, One World
Financial Center, 200 Liberty Street, New York, NY 10281, Attention:
Adam G. Ciongoli, Telephone: 212-915-8899, Facsimile: 212-519-5407, and
a copy to: Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY
10153, Attention: Michael J. Aiello, Telephone: 212-310-8552,
Facsimile: 212-310-8007 or at such other address as the Issuer shall
have specified to the GSMP Purchasers or any Subsequent Purchaser (if
any) in writing.
9.2. Benefit of Agreement and Assignments.
(a) Except as otherwise expressly provided herein, all covenants,
agreements and other provisions contained in this Agreement by or on behalf of
any of the parties hereto shall bind, inure to the benefit of and be enforceable
by their respective successors and assigns (including any Subsequent Purchaser).
(b) Nothing in this Agreement or in any other Financing Document,
express or implied, shall give to any Person other than the parties hereto or
thereto and their permitted successors and assigns (including any Subsequent
Purchaser) any benefit or any legal or equitable right, remedy or claim under
this Agreement.
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(c) Notwithstanding anything to the contrary contained herein, the GSMP
Purchasers may assign the rights to purchase all or any portion of the Notes
allocated to such GSMP Purchaser pursuant to Schedule 2.2 to (i) any, direct or
indirect, Subsidiary of such GSMP Purchaser or any Affiliate of such GSMP
Purchaser, subject to such Subsidiary or Affiliate, as the case may be, making
the representations and warranties set forth in Section 5, and each such Person
shall be entitled to the full benefit and be subject to the obligations of this
Agreement as if such Person were a GSMP Purchaser hereunder and (ii) any
Subsequent Holder.
(d) The parties hereto expressly acknowledge and agree that (i) upon
execution of a counterpart signature page hereto (which, accompanied by an
updated Schedule 2.2, shall be binding on all parties), each GSMP Purchaser or
Subsequent Purchaser to whom the rights hereunder have been assigned and the
GSMP VCOC designated by the GSMP Purchasers shall become parties to this
Agreement for all purposes hereof and (ii) GSMP VCOC is an intended beneficiary
of Sections 6.1, 6.2, 9.2 and 9.4.
(e) Notwithstanding anything to the contrary herein and without
limiting the generality of Section 5.1(a)(ii), immediately after the Closing for
a period ending on the first anniversary of the Closing Date, the GSMP
Purchasers may sell Notes to the Subsequent Holders pursuant to applicable
exemptions from registration under the Securities Act and in compliance with
Section 7.
9.3. No Waiver; Remedies Cumulative.
No failure or delay on the part of any party hereto or any Purchaser in
exercising any right, power or privilege hereunder or under the Notes and no
course of dealing between the Issuer and any other party or Purchaser shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under the Notes preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein and in the
Notes are cumulative and not exclusive of any rights or remedies that the
parties or Purchasers would otherwise have. No notice to or demand on the Issuer
in any case shall entitle the Issuer to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the other
parties hereto or the Purchasers to any other or further action in any
circumstances without notice or demand.
9.4. Amendments, Waivers and Consents.
Subject to the second sentence of this Section 9.4, this Agreement may
be amended, and the observance of any term hereof may be waived (either
retroactively or prospectively), with the written consent of the Issuer, and the
Required Holders; provided, however, that no such amendment or waiver may,
without the prior written consent of the GSMP VCOC or the holders of a majority
in principal amount of the outstanding Notes held by the GSMP Purchasers, as
applicable, amend or waive the provisions of which the GSMP Purchasers or the
GSMP VCOC, as applicable, are beneficiaries. No amendment or waiver of this
Agreement will extend to or affect any obligation, covenant or agreement not
expressly amended or waived or thereby impair any right consequent thereon.
As used herein, the term "Agreement" and references thereto shall mean
this Agreement as it may from time to time be amended, supplemented or modified.
9.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by facsimile transmission or electronic transmission (in
..pdf or similar format) will be effective as delivery of a manually executed
counterpart hereof.
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9.6. Reproduction.
This Agreement, the other Financing Documents and all documents
relating hereto and thereto, including, without limitation, (a) consents,
waivers and modifications that may hereafter be executed, (b) documents received
by the GSMP Purchasers and the GSMP VCOC at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished in connection herewith, may be reproduced by
any photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and any original document so reproduced may be destroyed.
Each of the Purchasers and the Issuer agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence. This Section 9.6 shall not prohibit the Issuer, any
other party hereto or any Purchaser from contesting any such reproduction to the
same extent that it could contest the original or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.
9.7. Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
9.8. Survival of Covenants and Indemnities.
All covenants and indemnities set forth herein shall survive the
execution and delivery of this Agreement, the issuance of the Notes and, except
as otherwise expressly provided herein with respect to covenants, the payment of
principal of the Notes and any other obligations hereunder.
9.9. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
(b) If any action, proceeding or litigation shall be brought by any
party hereto in order to enforce any right or remedy under this Agreement or any
of the Notes, such party hereby consents and will submit, and will cause each of
its Subsidiaries to submit, to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. Each party hereto hereby irrevocably
waives any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, which they may now or hereafter have to the
bringing of any such action, proceeding or litigation in such jurisdiction.
(c) Each party hereto irrevocably consents and will cause each of their
respective Subsidiaries to consent, to the service of process of any of the
aforementioned courts in any such action, proceeding or litigation by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party at its address set forth in Section 9.1, such service to become
effective five (5) days after such mailing.
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(d) Nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by applicable law or to commence legal
proceedings or otherwise proceed against the other party in any other
jurisdiction. If service of process is made on a designated agent it should be
made by either personal delivery or mailing a copy of summons and complaint to
the agent via registered or certified mail, return receipt requested.
(e) EACH OBLIGOR, EACH PURCHASER AND THE GSMP VCOC HEREBY WAIVE AND
WILL CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO WAIVE, ANY AND ALL RIGHTS IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE NOTES.
9.10. Severability.
If any provision of this Agreement is determined to be illegal, invalid
or unenforceable, such provision shall be fully severable to the extent of such
illegality, invalidity or unenforceability and the remaining provisions shall
remain in full force and effect and shall be construed without giving effect to
such illegal, invalid or unenforceable provision.
9.11. Entirety.
This Agreement together with the other Financing Documents represents
the entire agreement of the parties hereto and thereto with respect to the
subject matter hereof and thereof, and supersedes all prior agreements and
understandings, oral or written, if any, relating to the Financing Documents or
the transactions contemplated herein or therein.
9.12. Survival of Representations and Warranties.
All representations and warranties made by any Obligor herein shall
survive the execution and delivery of this Agreement, the issuance and transfer
of all or any portion of the Notes, and the payment of principal of the Notes
and the issuance and delivery of the Notes, and any other obligations hereunder,
regardless of any investigation made at any time by or on behalf of the
Purchasers.
9.13. Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person,
whether or not expressly specified in such provision.
9.14. Incorporation.
All Exhibits and Schedules attached hereto are incorporated as part of
this Agreement as if fully set forth herein.
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9.15. Confidentiality.
(a) Subject to the provisions of clause (b) of this Section 9.15, each
Purchaser (including each GSMP Purchaser and each Subsequent Holder) and the
GSMP VCOC agrees that it will not disclose without the prior consent of the
Issuer (other than to its employees, auditors, investors, partners, creditors,
lenders, rating agencies, advisors or counsel, in each case, to the extent such
disclosure reasonably relates to the administration of the investment
represented by its Notes and such Person is informed that such information is
subject to the provisions of this Section 9.15 and such Person has entered into
a customary confidentiality agreement obligating such Person to keep such
information confidential or is otherwise bound by an appropriate confidentiality
obligation) any nonpublic information which has been furnished to such Purchaser
or GSMP VCOC in connection with its evaluation of an investment in the Notes and
of the other transactions referred to herein or is now or in the future
furnished pursuant to this Agreement or any other Financing Document (including
Section 8.1 hereof) ("Confidential Information"); provided that any Purchaser or
the GSMP VCOC may disclose any such information (i) as has become generally
available to the public other than by virtue of a breach of this Section 9.15(a)
by such Purchaser or GSMP VCOC or any other Person to whom such Purchaser or
GSMP VCOC has provided such information as permitted by this Section 9.15, (ii)
as may be required in any report, statement or testimony required to be
submitted to any Governmental Authority having jurisdiction over such Purchaser
or GSMP VCOC or to the SEC or similar organizations (whether in the United
States of America or elsewhere), (iii) as may be required or appropriate in
respect of any summons or subpoena or in connection with any litigation, (iv) as
may be required or appropriate in order to comply with any applicable law and
(v) to any prospective or actual Subsequent Purchaser in connection with any
contemplated transfer of any of the Notes by such Purchaser; provided that any
prospective Subsequent Purchaser expressly agrees in writing to be bound by the
confidentiality provisions contained in this Section 9.15 or a substantially
identical confidentiality obligation. Each Purchaser and the GSMP VCOC agrees
that in the event it intends to disclose confidential information in accordance
with clause (ii), (iii) or (iv) above, it shall, to the extent reasonably
practicable, provide the Issuer notice of such requirement prior to making any
disclosure so that the Issuer may seek an appropriate protective order or
confidential treatment of the information being disclosed.
(b) The Issuer hereby acknowledges and agrees that each Purchaser and
the GSMP VCOC may share with any of its Affiliates, and such Affiliates may
share with such Purchaser and GSMP VCOC, any information related to the Issuer
or any of its Subsidiaries (including, without limitation, any nonpublic
information regarding the creditworthiness of the Issuer and its Subsidiaries)
to the extent such sharing reasonably relates to the administration of the
investment represented by the Notes and such Affiliates are informed that such
information is subject to the provisions of this Section 9.15; provided such
Persons shall be subject to the provisions of this Section 9.15 to the same
extent as such Purchaser and GSMP VCOC.
(c) Notwithstanding anything in this Agreement to the contrary, the
Purchasers and GSMP VCOC shall not disclose to USI Holdings Corporation and its
Subsidiaries any Confidential Information related to or containing: costs
(including salaries or benefits); prices or other competitive terms of sale;
profitability; marketing, strategic or business plans; product development
plans, customers; or any other information, which could reasonably be expected
to be used to the competitive detriment of Holdings.
9.16. Maximum Rate.
In no event shall any interest or fee to be paid hereunder or under a
Note exceed the maximum rate permitted by applicable law. In the event any such
interest rate or fee exceeds such maximum rate, such rate shall be adjusted
downward to the highest rate (expressed as a percentage per annum) or fee that
the parties could validly have agreed to by contract on the date hereof under
applicable law.
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9.17. PATRIOT Act.
The Purchasers hereby notify the Issuer that pursuant to the
requirements of the PATRIOT Act, the Purchasers may be required to obtain,
verify and record information that identifies Holdings, the Issuer and their
respective Subsidiaries, including their respective names and addresses other
information that will allow the Purchasers to identify Holdings, the Issuer and
their respective Subsidiaries in accordance with the PATRIOT Act.
9.18. Currency.
All dollar amounts referred to in this Agreement are in lawful money of
the United States.
9.19. Further Assurances.
Each of the parties hereto shall, upon reasonable request of any other
party hereto, do, make and execute all such documents, acts, matters and things
as may be reasonably required in order to give effect to the transactions
contemplated hereby.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
TRINITY ACQUISITION LIMITED
By:
------------------------------
Name: Patrick C. Regan
Title: Director
WILLIS GROUP HOLDINGS LIMITED
By:
------------------------------
Name: Patrick C. Regan
Title: Chief Financial Officer
WILLIS INVESTMENT HOLDINGS UK, LTD.
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
By:
------------------------------
Name: Patrick C. Regan
Title: Director
WILLIS NORTH AMERICA INC.
By:
------------------------------
Name: Joseph Plumeri
Title: Executive Chairman
32
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
PURCHASERS: GSMP V ONSHORE INTERNATIONAL, LTD.
By:
------------------------------------
Name:
Title:
GSMP V OFFSHORE INTERNATIONAL, LTD.
By:
------------------------------------
Name:
Title:
GSMP V INSTITUTIONAL INTERNATIONAL, LTD.
By:
------------------------------------
Name:
Title:
GS MEZZANINE PARTNERS V INSTITUTIONAL, L.P.
By: GS Mezzanine Advisors V, L.L.C., its
general partner
By:
------------------------------------
Name:
Title:
33