Exhibit 4.1
WILLIS NORTH AMERICA INC.
Issuer
WILLIS GROUP HOLDINGS LIMITED
Old Parent Guarantor
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
New Parent Guarantor
WILLIS NETHERLANDS HOLDINGS B.V.
New Guarantor
WILLIS INVESTMENT UK HOLDINGS LIMITED
TA I LIMITED
TA II LIMITED
TA III LIMITED
TRINITY ACQUISITION PLC
TA IV LIMITED
WILLIS GROUP LIMITED
the Other Guarantors
and
THE BANK OF NEW YORK MELLON (as successor to JPMorgan Chase Bank, N.A.)
FIFTH SUPPLEMENTAL
INDENTURE (this “
Fifth Supplemental Indenture”), dated
December 31, 2009, between Willis North America, Inc., a
Delaware corporation (the “
Issuer”), Willis Group Holdings Limited, an exempted company under the
Companies Act 1981 of Bermuda (the “
Old Parent Guarantor”), Willis Group Holdings Public Limited
Company, a company incorporated under the laws of Ireland having company number 475616 (the
“New
Parent Guarantor”), Willis Netherlands Holdings B.V., a company organized and existing under the
laws of the Netherlands (the
“New Guarantor”), the existing Guarantors listed on Schedule A (the
“
Other Guarantors”) and The Bank of New York Mellon (as successor to JPMorgan Chase Bank, N.A.) a
New York banking corporation (the “
Trustee”), to the
Indenture, dated as of
July 1, 2005, between
the Issuer, the Old Parent Guaranto
r, the Other Guarantors and the Trustee (the “
Base Indenture”),
as amended by the First Supplemental
Indenture, dated as of
July 1, 2005 (the “
First Supplemental
Indenture”), the Second Supplemental
Indenture, dated as of
March 28, 2007 (the “
Second
Supplemental Indenture”), the Third Supplemental
Indenture, dated as of
October 1, 2008 (the “
Third
Supplemental Indenture”) and the Fourth Supplemental
Indenture, dated as of
September 29, 2009 (the
“
Fourth Supplemental Indenture” and together with the First, Second and Third Supplemental
Indentures and the Base
Indenture, the “
Indenture”).
RECITALS:
WHEREAS, the Issuer, the Old Parent Guarantor, the Other Guarantors and the Trustee have
heretofore entered into the
Indenture to provide for the issuance of the Issuer’s unsecured senior
debentures, notes or other evidences of Indebtedness (the
“Securities”);
WHEREAS, Section 9.01 of the
Indenture permits a Guarantor, including the Parent Guarantor, to
convey, transfer or lease its properties and assets substantially as an entirety to any Person,
provided that (a) the successor Person in the case of the Parent Guarantor, shall be a Person
organized and existing under the laws of any United States jurisdiction, any state thereof,
Bermuda, England and Wales or any country that is a member of the European Monetary Union and was a
member of the European Monetary Union on
January 1, 2004, and such Person shall expressly assume by
supplemental
indenture, all the obligations of the Parent Guarantor under the
Indenture and the
Securities and immediately after such transaction no Event of Default shall have happened or be
continuing and (b) the Parent Guarantor has delivered to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that (i) such conveyance, transfer or lease and supplemental
indenture comply with Article Nine of the
Indenture and all the conditions precedent stated therein
have been complied with and (ii) in the case of the conveyance, transfer or lease by the Parent
Guarantor of its properties and assets substantially as an entirety to a Person organized other
than under the laws of Bermuda, Holders of the Securities will not recognize income, gain or loss
for U.S. Federal income tax purposes as a result of such conveyance, transfer or lease and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times,
as would have been the case if such conveyance, transfer or lease had not occurred;
WHEREAS, Section 9.02 of the
Indenture permits the predecessor corporation to be relieved of
all obligations and covenants under the
Indenture and the Securities after the conveyance or
transfer of the properties and assets of such Issuer or Guarantor substantially as an entirety in
accordance with Section 9.01 and after the successor Person succeeds to, is substituted for, and
becomes entitled to exercise every right and power of the Issuer or Guarantor, as the case may be;
WHEREAS, Section 10.01(1) of the
Indenture permits the Issuer, the Guarantors and the Trustee
to enter into a supplemental
indenture to the
Indenture without the consent of the Holders of the
Securities to evidence the succession of another Person to a Guarantor and the assumption by such
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successor Person of the covenants of the Guarantor in the
Indenture and the Securities
pursuant to Article Nine of the
Indenture;
WHEREAS, Section 10.01(9) of the
Indenture permits the Issuer, the Guarantors and the Trustee
without the consent of the Holders of the Securities to enter into a supplemental
indenture to make
any provisions with respect to matters arising under the
Indenture, provided such action does not
adversely affect the interests of the Holders of the Securities in any material respect;
WHEREAS, the Old Parent Guarantor, as a Parent Guarantor, is simultaneously herewith
transferring its properties and assets substantially as an entirety to the New Parent Guarantor and
the New Parent Guarantor desires to assume all the obligations of a Parent Guarantor under the
Indenture and the Securities, including all obligations of a Guarantor under Article Sixteen of the
Indenture (the “
Guaranteed Obligations”);
WHEREAS, the New Parent Guarantor, as a Guarantor, is simultaneously herewith transferring
its properties and assets (the “
Transferred Assets”) substantially as an entirety to the New
Guarantor, a wholly owned subsidiary of the New Parent Guarantor, and the New Guarantor desires to
assume all the obligations of a Guarantor under the
Indenture and the Securities, including all
Guaranteed Obligations;
WHEREAS, the New Parent Guarantor will continue to be the parent holding company of the New
Guarantor and indirectly retain all its interests in the Transferred Assets and therefore desires
to retain all its obligations as Parent Guarantor under the
Indenture;
WHEREAS, the Trustee has agreed to enter into this Fifth Supplemental
Indenture to evidence
the foregoing assumptions;
WHEREAS, the Trustee has received an Opinion of Counsel and an Officers’ Certificate, pursuant
to Sections 1.02, 9.01 and 10.03 of the
Indenture, stating, as applicable, that (a) the execution
of the Fifth Supplemental
Indenture is authorized or permitted by the
Indenture, (b) the transfer
of the Old Parent Guarantor’s properties and assets substantially as an entirety to the New Parent
Guarantor, the transfer of the New Parent Guarantor’s properties and assets substantially as an
entirety to the New Guarantor and the Fifth Supplemental
Indenture comply with the provisions of
Article Nine of the
Indenture, including the absence of tax consequences specified in Section
9.01(2)(b) of the
Indenture, (c) in the case of the conveyance, transfer or lease by the Parent
Guarantor of its properties and assets substantially as an entirety to a Person organized other
than under the laws of Bermuda, Holders of the Securities will not recognize income, gain or loss
for U.S. Federal income tax purposes as a result of such conveyance, transfer or lease and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times,
as would have been the case if such conveyance, transfer or lease had not occurred, (d) the Fifth
Supplemental
Indenture does not adversely affect the interests of the Holders of Securities in any
material respect and (e) all conditions precedent provided for in the
Indenture to such transaction
and to the execution and delivery by the Trustee of the Fifth Supplemental
Indenture have been
complied with; and
WHEREAS, all things necessary to make this Fifth Supplemental
Indenture a valid agreement of
the Issuer, the Old Parent Guarantor, the New Parent Guarantor, the New Guarantor, the Other
Guarantors and the Trustee, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the above premises, each party covenants and agrees, for
the benefit of the other parties and for the equal and ratable benefit of all of the holders of the
Securities, as follows:
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ARTICLE ONE
ASSUMPTION OF GUARANTOR OBLIGATIONS
Section 1.1 Assumption of Parent Guarantor Obligations by New Parent
Guarantor.
The New Parent Guarantor hereby assumes the obligations of the Parent Guarantor under the
Indenture and the Securities, and the Old Parent Guarantor is relieved of all obligations and
covenants under the
Indenture and the Securities pursuant to Section 9.02 of the
Indenture;
Section 1.2 Assumption of Guarantor Obligations by New Guarantor.
The New Guarantor hereby assumes the obligations of a Guarantor under the
Indenture and the
Securities;
Section 1.3 New Parent Guarantor to retain all obligations as the Parent
Guarantor.
Notwithstanding Section 9.02 of the
Indenture, if applicable, and the right thereunder of the
Parent Guarantor to be substituted for and released from its obligations under the
Indenture, the
New Parent Guarantor shall continue to be the
“Parent Guarantor” under the
Indenture and shall
retain all of its obligations as Parent Guarantor under the
Indenture and the Securities, as
currently in effect, including its obligations as a Guarantor pursuant to Article Sixteen, which
shall remain in full force and effect as if no assumption by the New Guarantor of the Guaranteed
Obligations had taken place.
Section 1.4 Parent Guarantor Agencies.
The New Parent Guarantor hereby confirms all agency appointments made by a Parent Guarantor
under the
Indenture.
Section 1.5 Guarantor Agencies.
The New Guarantor hereby confirms all agency appointments made by a Guarantor under the
Indenture.
ARTICLE TWO
MISCELLANEOUS
Section 2.1 Integral Part.
Section 2.2 Adoption, Ratification and Confirmation.
The
Indenture, as supplemented and amended by this Fifth Supplemental
Indenture, is in all
respects hereby adopted, ratified and confirmed, and this Fifth Supplemental
Indenture shall be
deemed part of the
Indenture in the manner and to the extent herein and therein provided. The
provisions of this Fifth Supplemental
Indenture shall, subject to the terms hereof, supersede the
provisions of the
Indenture to the extent the
Indenture is inconsistent herewith.
Section 2.3 Counterparts.
This Fifth Supplemental
Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 2.4 Governing Law.
THIS SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
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Section 2.5 Conflict with Trust Indenture Act.
If and to the extent that any provision of the
Indenture limits, qualifies or conflicts with a
provision required under the terms of the Trust
Indenture Act, the Trust
Indenture Act provision
shall control.
The Article and Section headings herein and the
Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 2.7 Separability Clause.
In case any provision in the
Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 2.8 Successors and Assigns.
All covenants and agreements in the
Indenture by the parties hereto shall bind their
respective successors and assigns, whether so expressed or not.
Nothing in this Fifth Supplemental
Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, and
their successors hereunder, and the Holders of the Securities, any benefit or any legal or
equitable right, remedy or claim hereunder or under the
Indenture.
Section 2.10 The Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals
contained herein, all of which are made solely by the Issuer and the Guarantors.
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