Exhibit 4(h)
AON CORPORATION,
ISSUER
AND
THE BANK OF NEW YORK,
TRUSTEE
_____________________
INDENTURE
_____________________
DATED AS OF DECEMBER 13, 2001
6.20% NOTES DUE 2007
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act...............6
SECTION 1.03. Rules of Construction...........................................6
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.................................................7
SECTION 2.02. Restrictive Legends.............................................8
SECTION 2.03. Execution, Authentication and Denominations.....................9
SECTION 2.04. Registrar and Paying Agent.....................................10
SECTION 2.05. Paying Agent to Hold Money in Trust............................11
SECTION 2.06. Transfer and Exchange..........................................11
SECTION 2.07. Book-Entry Provisions for Global Notes.........................12
SECTION 2.08. Special Transfer Provisions....................................13
SECTION 2.09. Replacement Notes..............................................16
SECTION 2.10. Outstanding Notes..............................................16
SECTION 2.11. Temporary Notes................................................17
SECTION 2.12. Cancellation...................................................17
SECTION 2.13. CUSIP Numbers..................................................17
SECTION 2.14. Issuance of Additional Notes...................................18
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption............................................18
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes...............................................18
SECTION 4.02. Maintenance of Office or Agency................................18
SECTION 4.03. Limitation on Liens on Common Stock of Significant Subsidiary..19
SECTION 4.04. Compliance Certificates........................................19
SECTION 4.05. Interest Rate Adjustment.......................................19
SECTION 4.06 Waiver of Certain Covenants....................................22
ARTICLE FIVE
SUCCESSOR CORPORATION
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SECTION 5.01. When Company May Merge, Etc....................................20
SECTION 5.02. Successor Substituted..........................................21
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default..............................................21
SECTION 6.02. Acceleration...................................................22
SECTION 6.03. Other Remedies.................................................22
SECTION 6.04. Waiver of Past Defaults........................................22
SECTION 6.05. Control by Majority............................................23
SECTION 6.06. Payment of Securities on Default; Suit Therefor................23
SECTION 6.07. Limitation on Suits............................................23
SECTION 6.08. Rights of Holders to Receive Payment...........................24
SECTION 6.09. Collection Suit by Trustee.....................................24
SECTION 6.10. Trustee May File Proofs of Claim...............................24
SECTION 6.11. Priorities.....................................................25
SECTION 6.12. Undertaking for Costs..........................................25
SECTION 6.13. Restoration of Rights and Remedies.............................25
SECTION 6.14. Rights and Remedies Cumulative.................................25
SECTION 6.15. Delay or Omission Not Waiver...................................26
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General........................................................26
SECTION 7.02. Certain Rights of Trustee......................................26
SECTION 7.03. Individual Rights of Trustee...................................27
SECTION 7.04. Trustee's Disclaimer...........................................27
SECTION 7.05. Notice of Default..............................................28
SECTION 7.06. Reports by Trustee to Holders..................................28
SECTION 7.07. Compensation and Indemnity.....................................28
SECTION 7.08. Replacement of Trustee.........................................29
SECTION 7.09. Successor Trustee by Merger, Etc...............................30
SECTION 7.10. Eligibility....................................................30
SECTION 7.11. Money Held in Trust............................................30
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations...........................30
SECTION 8.02. Defeasance and Discharge of Indenture..........................31
SECTION 8.03. Defeasance of Certain Obligations..............................32
SECTION 8.04. Application of Trust Money.....................................33
SECTION 8.05. Repayment to Company...........................................33
SECTION 8.06. Reinstatement..................................................34
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.....................................34
SECTION 9.02. With Consent of Holders........................................35
SECTION 9.03. Action by Holders; Record Dates................................38
SECTION 9.04. Revocation and Effect of Consent...............................36
SECTION 9.05. Notation on or Exchange of Notes...............................36
SECTION 9.06. Trustee to Sign Amendments, Etc................................37
SECTION 9.07. Conformity with Trust Indenture Act............................37
ARTICLE Ten
MEETINGS OF THE HOLDERS
SECTION 10.01. Purposes of Meetings...........................................40
SECTION 10.02. Call of Meetings by Trustee....................................40
SECTION 10.03. Call of Meetings by Company or Holders.........................41
SECTION 10.04. Qualification for Voting.......................................41
SECTION 10.05 Regulations....................................................41
SECTION 10.06 Voting.........................................................41
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939...................................39
SECTION 11.02. Notices.......................................................39
SECTION 11.03. Certificate and Opinion as to Conditions Precedent............40
SECTION 11.04. Statements Required in Certificate or Opinion.................41
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar...................41
SECTION 11.06. Payment Date Other Than a Business Day........................41
SECTION 11.07. Governing Law.................................................41
SECTION 11.08. No Adverse Interpretation of Other Agreements.................41
SECTION 11.09. No Recourse Against Others....................................41
SECTION 11.10. Successors....................................................42
SECTION 11.11. Duplicate Originals...........................................42
SECTION 11.12. Separability..................................................42
SECTION 11.13. Table of Contents, Headings, Etc..............................42
SECTION 11.14 Counterparts..................................................42
EXHIBIT A Form of Note.................................................A-1
EXHIBIT B Form of Certificate..........................................B-1
EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Non-QIB Institutional Accredited
Investors....................................................C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S...........................D-1
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INDENTURE, dated as of December 13, 2001, between Aon CORPORATION, a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
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banking corporation, as trustee (the "Trustee").
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RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Company's 6.20% Notes due 2007 (the
"Notes") issuable as provided in this Indenture. All things necessary to make
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this Indenture a valid agreement of the Company, in accordance with its terms,
have been done, and the Company has done all things necessary to make the Notes,
when executed by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, valid obligations of the Company as
hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
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"Affiliate" has the meaning provided in Rule 405 of the Securities Act.
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"Agent" means any Registrar, Co-Registrar, Paying Agent or
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authenticating agent.
"Agent Members" has the meaning provided in Section 2.07(a).
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"Authorized Newspaper" means a newspaper in an official language of the
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country of publication of general circulation in the place in connection with
which the term is used. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means the Board of Directors of the Company or any
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committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution certified by the
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Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or legal holiday
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on which banking institutions in The City of New York are authorized or required
by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
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to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Company" means the party named as such in the first paragraph of this
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Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
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the Company (i) by its Chairman, a Vice Chairman, its President or a Vice
President and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee; provided, however, that such
written request or order may be signed by any two of the officers or directors
listed in clause (i) above in lieu of being signed by one of such officers or
directors listed in such clause (i) and one of the officers listed in clause
(ii) above.
"Corporate Trust Office" means the office of the Trustee at which the
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corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 101 Barclay Street, Floor 21W, New York, New York 10286, Attention:
Corporate Trust Department.
"Default" means an event or condition the occurrence of which is, or
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with the lapse of time or giving of notice or both would be, an Event of
Default.
"Depositary" means The Depository Trust Company, its nominees, and
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their respective successors.
"Event of Default" has the meaning provided in Section 6.01.
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"Exchange Act" means the Securities Exchange Act of 1934.
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"Exchange Notes" means any securities of the Company containing terms
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identical to the Notes (except that such Exchange Notes shall be registered
under the Securities Act) that are issued and exchanged for the Notes pursuant
to the Registration Rights Agreement and this Indenture.
"Global Notes" has the meaning provided in Section 2.01.
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"Holder" or "Noteholder" means the registered holder of any Note.
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"Indenture" means this Indenture as originally executed or as it may be
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amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"Institutional Accredited Investor" means an institution that is an
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"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means January 15 and July 15 of each year,
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commencing July 15, 2002.
"Maturity Date" means January 15, 2007.
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"Moody's" means Moody's Investors Service.
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"Non-U.S. Person" means a person who is not a "U.S. person" (as defined
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in Regulation S).
"Notes" means any of the securities, as defined in the first paragraph
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of the recitals hereof, that are authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term "Notes" shall include
the Notes initially issued on the Closing Date, any Exchange Notes to be issued
and exchanged for any Notes pursuant to the Registration Rights Agreement and
this Indenture and any other Notes issued after the Closing Date under this
Indenture. For purposes of this Indenture, all Notes shall vote together as one
series of Notes under this Indenture.
"Officer" means, with respect to the Company, (i) the Chairman of the
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Board, the Chief Executive Officer, the President, any Vice President or the
Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer
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listed in clause (i) of the definition thereof and one Officer listed in clause
(ii) of the definition thereof or two officers listed in clause (i) of the
definition thereof. Each Officers' Certificate (other than certificates provided
pursuant to TIA Section 314(a)(4)) shall include the statements provided for in
TIA Section 314(e).
"Offshore Global Notes" has the meaning provided in Section 2.01.
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"Offshore Physical Notes" has the meaning provided in Section 2.01.
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"Opinion of Counsel" means a written opinion signed by legal counsel,
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who may be an employee of or counsel to the Company, that meets the requirements
of Section 11.04 hereof. Each such Opinion of Counsel shall include the
statements provided for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that,
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for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
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"Person" means an individual, a corporation, a partnership, a limited
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liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Physical Notes" has the meaning provided in Section 2.01.
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"principal" of a debt security, including the Notes, means the
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principal amount due on the Stated Maturity as shown on such debt security.
"Private Placement Legend" means the legend initially set forth on the
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Notes in the form set forth in Section 2.02.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
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"Rating Category" means the difference between a particular rating
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assigned by either Moody's or S&P and the next higher or lower rating. For
example, and without limiting the generality of the foregoing, in the case of
Moody's the difference between Baa1 and Baa2 shall constitute one Rating
Category and in the case of S&P the difference between BBB+ and BBB shall
constitute one Rating Category.
"Record Date" for the interest payable on any Interest Payment Date
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means the fifteenth calendar day (whether or not a Business Day) immediately
preceding such Interest Payment Date.
"Registrar" has the meaning provided in Section 2.04.
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"Registration Rights Agreement" means the Registration Rights
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Agreement, dated as of December 13, 2001, between the Company and Morgan Stanley
& Co. Incorporated.
"Registration Statement" means the Registration Statement as defined
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and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
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"Responsible Officer," when used with respect to the Trustee, means any
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officer within the corporate trust department of the trustee, including any vice
president, any assistant vice president, any assistant treasurer, any trust
officer or assistant trust officer or any other officer of the Trustee in its
corporate trust department customarily performing functions similar to those
performed by any of the above-designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Rule 144" means Rule 144 under the Securities Act.
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"Rule 144A" means Rule 144A under the Securities Act.
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"S&P" means Standard & Poor's Ratings Services.
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"Securities Act" means the Securities Act of 1933.
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"Security Register" has the meaning provided in Section 2.04.
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"Shelf Registration Statement" means the Shelf Registration Statement
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as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, with respect to the Company, a
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"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Exchange Act.
"Stated Maturity" means the date specified in the Notes as the fixed
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date on which the principal amount thereof or any installment of interest
thereon is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation of
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which at least a majority in interest of the outstanding capital stock having by
the terms thereof voting power under ordinary circumstances to elect directors
of such corporation, irrespective of whether or not at the time stock of any
other class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by such Person, or by one or more other
corporations a majority in interest of such stock of which is similarly owned or
controlled or by such Person and one or more other corporations a majority in
interest of such stock of which is similarly owned or controlled, or (ii) any
other Person (other than a corporation) in which such Person, directly or
indirectly, at the date of determination thereof, has at least a majority equity
ownership interest.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
--- ---------------------
(15 U.S. Code ss.ss. 77aaa-77bbbb), as in effect on the date this Indenture was
executed, except as provided in Section 9.07.
"Trustee" means the party named as such in the first paragraph of this
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Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
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1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"U.S. Global Notes" has the meaning provided in Section 2.01.
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"U.S. Government Obligations" means securities that are (i) direct
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obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such
custodian is not
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authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"U.S. Physical Notes" means the Notes issued in the form of permanent
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certificated Notes in registered form in substantially the form set forth in
Exhibit A to Institutional Accredited Investors which are not QIBs (excluding
Non-U.S. Persons) who purchased Notes pursuant to an exemption from registration
under the Securities Act.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
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requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with accounting principles generally
accepted in the United States in effect on the date of this Indenture;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(vii) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated.
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ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. The Notes and the Trustee's certificate
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of authentication shall be substantially in the form annexed hereto as Exhibit A
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange agreements to which the
Company is subject or usage. The Company shall approve the form of the Notes and
any notation, legend or endorsement on the Notes. Each Note shall be dated the
date of its authentication.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "U.S. Global Notes"),
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registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Notes in registered form substantially in the form set forth in Exhibit A
(the "Offshore Global Notes"), registered in the name of the nominee of the
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Depositary, deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Offshore Global Notes may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Notes issued pursuant to Section 2.07 in exchange for interests in the
Offshore Global Notes shall be in the form of permanent certificated Notes in
registered form substantially in the form set forth in Exhibit A (the "Offshore
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Physical Notes").
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The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Notes
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and the Offshore Global Notes are sometimes referred to herein as the "Global
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Notes."
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The definitive Notes shall be typed, printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. Restrictive Legends. Unless and until a Note is exchanged
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for an Exchange Note or sold in connection with an effective Registration
Statement pursuant to the Registration Rights Agreement, (i) the U.S. Global
Notes and U.S. Physical Notes shall bear the legend set forth below on the face
thereof and (ii) the Offshore Physical Notes and Offshore Global Notes shall
bear the legend set forth below on the face thereof until at least the 41st day
after the Closing Date and receipt by the Company and the Trustee of a
certificate substantially in the form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS,
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY U.S. PERSON EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER
RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
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LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME
PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND
IS REGISTERED IN THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFERS OF THIS GLOBAL NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. Subject to
--------------------------------------------
Article Four and applicable law, the aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited. The Notes
shall be executed by two Officers of the
- 9 -
Company. The signature of these Officers on the Notes may be by facsimile or
manual signature in the name and on behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Notes in the aggregate principal
amount specified in such Company Order; provided that the Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company in connection with such authentication of Notes. Such Company Order
shall specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and, in case of an issuance of
Notes pursuant to Section 2.14, shall certify that such issuance is in
compliance with Article Four.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 in principal amount and any integral multiple
thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain an
--------------------------
office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar"), an office or agency where Notes may be presented
---------
for payment (the "Paying Agent") and an office or agency where notices and
-------------
demands to or upon the Company in respect of the Notes and this Indenture may be
served, which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Notes and of their
transfer and exchange (the "Security Register"). The Security Register shall be
-----------------
in written form or any other form capable of being converted into written form
within a reasonable time. The Company may have one or more Co-Registrars and one
or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency
- 10 -
agreement entered into by the Company and such successor Agent and delivered to
the Trustee or (ii) notification to the Trustee that the Trustee shall serve as
such Agent until the appointment of a successor Agent in accordance with clause
(i) of this proviso. The Company, any Subsidiary of the Company or any Affiliate
of any of them may act as Paying Agent, Registrar or Co-Registrar, and/or agent
for service of notice and demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. The Trustee
shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise
comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee as of each Record Date and at such other times as
the Trustee may reasonably request the names and addresses of Holders as they
appear in the Security Register, including the aggregate principal amount of
Notes held by each Holder.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than 10:00
-----------------------------------
a.m. (New York City time) on each due date of any principal of or interest on
any Notes, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal and interest so becoming due.
The Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of and interest on the Notes (whether such money has been paid to it
by the Company or any other obligor on the Notes), and such Paying Agent shall
promptly notify the Trustee of any default by the Company (or any other obligor
on the Notes) in making any such payment. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent shall have no further liability for
the money so paid over to the Trustee. If the Company or any Subsidiary of the
Company or any Affiliate of any of them acts as Paying Agent, it will, on or
before each due date of any principal of or interest on the Notes, segregate and
hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee of its action or failure to act.
SECTION 2.06. Transfer and Exchange. The Notes are issuable only in
----------------------
registered form. A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee and any agent of the Company shall treat the
person in whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
- 11 -
Note shall be required to be reflected in a book entry. When Notes are presented
to the Registrar or a Co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations (including an exchange of Notes for Exchange Notes), the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including that such Notes are duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Trustee and Registrar duly executed by the Holder thereof or by an
attorney who is authorized in writing to act on behalf of the Holder); provided
that no exchanges of Notes for Exchange Notes shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Notes that are exchanged for Exchange Notes shall be cancelled by the Trustee.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange of the Notes,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or other similar governmental charge payable upon
exchanges pursuant to Section 2.11 or 9.05).
SECTION 2.07. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The U.S. Global Notes and Offshore Global Notes initially shall (i)
be registered in the name of the Depositary for such Global Notes or the nominee
of such Depositary, (ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in Global Notes may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.08. In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Notes or the Offshore Global
Notes, as the case may be, if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the U.S. Global Notes or the
Offshore Global Notes, as the case may be, and a successor depositary is not
appointed by the Company within 90 days of such notice, (ii) an Event of Default
has occurred and is continuing and the Registrar has received a request from the
Depositary or (iii) in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.08.
- 12 -
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in another
Global Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in such other Global Note and, accordingly, will thereafter
be subject to all transfer restrictions, if any, and other procedures applicable
to beneficial interests in such other Global Note for as long as it remains such
an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a Global Note to beneficial owners pursuant to paragraph (b) of
this Section 2.07, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Note in an amount equal to
the principal amount of the beneficial interest in such Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Notes or Offshore Physical Notes, as the
case may be, of like tenor and amount.
(e) In connection with the transfer of the U.S. Global Notes or the
Offshore Global Notes, in whole, to beneficial owners pursuant to paragraph (b)
of this Section 2.07, the U.S. Global Notes or Offshore Global Notes, as the
case may be, shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the U.S. Global Notes or Offshore Global Notes, as the
case may be, an equal aggregate principal amount of U.S. Physical Notes or
Offshore Physical Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Notes pursuant to paragraph (b), (d) or (e) of this Section 2.07
shall, except as otherwise provided by paragraph (h) of Section 2.08, bear the
legend regarding transfer restrictions applicable to the U.S. Physical Note set
forth in Section 2.02.
(g) Any Offshore Physical Note delivered in exchange for an interest in
the Offshore Global Notes pursuant to paragraph (b), (d) or (e) of this Section
2.07 shall, except as otherwise provided by paragraph (h) of Section 2.08, bear
the legend regarding transfer restrictions applicable to the Offshore Physical
Note set forth in Section 2.02.
(h) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.08. Special Transfer Provisions. Unless and until a Note is
----------------------------
exchanged for an Exchange Note or sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration
of any proposed transfer of a Note to any Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons):
- 13 -
(i) The Registrar shall register the transfer of any
Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the time period
referred to in Rule 144(k) under the Securities Act or (y) the
proposed transferee has delivered to the Registrar (A) a
certificate substantially in the form of Exhibit C hereto and
(B) if the aggregate principal amount of the Notes being
transferred is less than $250,000, an opinion of counsel
acceptable to the Company that such transfer is in compliance
with the Securities Act.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Notes, upon
receipt by the Registrar of (x) the documents, if any,
required by paragraph (i) above and (y) instructions given in
accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the
U.S. Global Notes in an amount equal to the principal amount
of the beneficial interest in the U.S. Global Notes to be
transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more U.S. Physical
Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
-----------------
with respect to the registration of any proposed transfer of a Note to
a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x)
either Offshore Physical Notes prior to the removal of the
Private Placement Legend or U.S. Physical Notes, the Registrar
shall register the transfer if such transfer is being made by
a proposed transferor who has checked the box provided for on
the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of
Note stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Note for its
own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is
a QIB within the meaning of Rule 144A and is aware that the
sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from
registration provided by Rule 144A or (y) an interest in the
U.S. Global Notes, the transfer of such interest may be
effected only through the book-entry system maintained by the
Depositary.
(ii) If the proposed transferee is an Agent Member,
and the Note to be transferred consists of U.S. Physical
Notes, upon receipt by the Registrar of the documents referred
to in paragraph (i) above and instructions given in accordance
with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and
an increase in the principal amount of U.S. Global Notes in an
amount equal to the principal amount of the U.S. Physical
- 14 -
Notes to be transferred, and the Trustee shall cancel the U.S.
Physical Notes so transferred.
(c) Transfers of Interests in the Offshore Global Notes or
---------------------------------------------------------
Offshore Physical Notes. The following provisions shall apply with
-------------------------
respect to any transfer of interests in Offshore Global Notes or
Offshore Physical Notes:
(i) prior to the removal of the Private Placement
Legend from the Offshore Global Notes or Offshore Physical
Notes pursuant to Section 2.02, the Registrar shall refuse to
register such transfer unless such transfer complies with
Section 2.08(b) or Section 2.08(d), as the case may be, and
(ii) after such removal, the Registrar shall register
the transfer of any such Note without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
------------------------------------------
provisions shall apply with respect to any transfer of a Note to a
Non-U.S. Person:
(i) The Registrar shall register any proposed
transfer to any Non-U.S. Person if the Note to be transferred
is a U.S. Physical Note or an interest in U.S. Global Notes,
upon receipt of a certificate substantially in the form of
Exhibit D hereto from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent
Member holding a beneficial interest in the U.S. Global Notes,
upon receipt by the Registrar of (x) the documents, if any,
required by paragraph (ii) and (y) instructions in accordance
with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and
a decrease in the principal amount of the U.S. Global Notes in
an amount equal to the principal amount of the beneficial
interest in the U.S. Global Notes to be transferred, and (b)
if the proposed transferee is an Agent Member, upon receipt by
the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global Notes
in an amount equal to the principal amount of the U.S.
Physical Notes or the U.S. Global Notes, as the case may be,
to be transferred, and the Trustee shall cancel the Physical
Note, if any, so transferred or decrease the amount of the
U.S. Global Notes.
(e) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) the Private Placement
Legend is no longer required by Section 2.02, (ii) the circumstances
contemplated by paragraph (a)(i)(x) of this Section 2.08 exist or (iii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither
such
- 15 -
legend nor the related restrictions on transfer are required in order
to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Note only as provided in this Indenture. The Registrar shall not
register a transfer of any Note unless such transfer complies with the
restrictions on transfer of such Note set forth in this Indenture. In
connection with any transfer of Notes, each Holder agrees by its
acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them
may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the
Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of
any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Notes. If a mutilated Note is surrendered to
-----------------
the Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a bona fide purchaser, the Company shall
issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding;
provided that the requirements of this Section 2.09 are met. If required by the
Trustee or the Company, an indemnity bond must be furnished that is sufficient
in the judgment of both the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge such Holder for its expenses and the expenses
of the Trustee in replacing a Note. In case any such mutilated, lost, destroyed
or wrongfully taken Note has become or is about to become due and payable, the
Company in its discretion may pay such Note instead of issuing a new Note in
replacement thereof.
Every replacement Note is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Notes. Notes outstanding at any time are all
-----------------
Notes that have been authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.10 as not outstanding.
If a Note is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.
- 16 -
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the Maturity Date money sufficient to pay Notes payable on
that date, then on and after that date such Notes cease to be outstanding and
interest on them shall cease to accrue.
A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note, provided, however, that in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee has actual knowledge to be so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
SECTION 2.11. Temporary Notes. Until definitive Notes are ready for
----------------
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the temporary
Notes, as evidenced by their execution of such temporary Notes. If temporary
Notes are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.12. Cancellation. The Company at any time may deliver to the
------------
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for transfer, exchange, payment or cancellation and shall dispose of them in
accordance with its normal procedure.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Notes may use
-------------
"CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and the Company
and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in
notices of exchange as a convenience to Holders; provided that any such notice
shall state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of exchange and
that reliance may be placed only on the other identification numbers printed on
- 17 -
the Notes. The Company shall promptly notify the Trustee of any change in
"CUSIP", "CINS" or "ISIN" numbers for the Notes.
SECTION 2.14. Issuance of Additional Notes. The Company may, subject to
----------------------------
Article Four of this Indenture and applicable law, issue additional Notes under
this Indenture. The Notes issued on the Closing Date and any additional Notes
subsequently issued shall be treated as a single class for all purposes under
this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption. The Notes are not redeemable prior
-------------------
to the Maturity Date.
ARTICLE Four
COVENANTS
SECTION 4.01. Payment of Notes. The Company shall pay the principal of
----------------
and interest on the Notes on the dates and in the manner provided in the Notes
and this Indenture. An installment of principal or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the Company, a
Subsidiary of the Company or any Affiliate of any of them) holds on that date
money designated for and sufficient to pay the installment. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, an installment of principal or interest shall be considered paid on the
due date if the entity acting as Paying Agent complies with the last sentence of
Section 2.05. As provided in Section 6.10, upon any bankruptcy or reorganization
procedure relative to the Company, the Trustee shall serve as the Paying Agent,
if any, for the Notes.
SECTION 4.02. Maintenance of Office or Agency. So long as any of the
--------------------------------
Notes shall remain outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York an office or agency where Notes may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York for such purposes. The Company shall give prompt written
- 18 -
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company in accordance with Section 2.04.
SECTION 4.03. Limitation on Liens on Common Stock of Significant
-------------------------------------------------------
Subsidiary. So long as any of the Notes shall remain outstanding, the Company
- ----------
will not, directly or indirectly, create, issue, assume, incur or guarantee any
indebtedness for money borrowed which is secured by a mortgage, pledge, lien,
security interest or other encumbrance of any nature on any of the present or
future common stock of any Significant Subsidiary (or any company, other than
the Company, having direct or indirect control of any Significant Subsidiary),
which common stock is directly or indirectly owned by the Company, unless the
Notes (together with, if the Company so determines, any other indebtedness for
money borrowed of the Company then existing or thereafter created which is not
subordinate to the Notes) shall be secured equally and ratably with (or, at the
option of the Company, prior to) such other secured indebtedness for money
borrowed so long as such indebtedness shall be secured.
SECTION 4.04. Compliance Certificates. The Company shall deliver to the
-----------------------
Trustee on or before a date not more than four months after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by the Company's chief financial officer, principal executive
officer or principal accounting officer stating whether or not the signers have
knowledge of any Default or Event of Default. If any of the Officers of the
Company signing such certificate has knowledge of such a Default or Event of
Default, the Officers' Certificate shall describe any such Default or Event of
Default and the nature thereof.
SECTION 4.05. Interest Rate Adjustment.
------------------------
(a) In the event that either Moody's or S&P downgrades the credit
rating ascribed to the Company's senior unsecured debt below A3 in the case of
Moody's or below A- in the case of S&P, the interest rate payable on the Notes
will be increased by 0.25% for each Rating Category downgrade below the
applicable level by each rating agency.
(b) If following an event described in Section 4.05(a), Moody's or S&P
subsequently increases the rating ascribed to the Company's senior unsecured
debt, then the interest rate payable on the Notes will be decreased by 0.25% for
each Rating Category upgrade by either rating agency, provided, however, that in
no event will the interest rate payable on the Notes be reduced to below the
initial interest rate as a result of this Section 4.05(b).
(c) Any such interest rate increase or decrease will take effect
commencing on the Interest Payment Date next following the related rating
downgrade or upgrade, as the case may be, subject to the further adjustments and
limitations set forth under Section 4.05(b). There is no limit to the number of
times the interest rate payable on the Notes can be adjusted.
(d) The Company shall promptly provide the Trustee and the Holders of
the Notes written notice of any event described in Sections 4.05(a) or 4.05(b)
in accordance with the procedures set forth in Section 11.02.
- 19 -
SECTION 4.06. Waiver of Certain Covenants. The Company may omit in any
---------------------------
particular instance to comply with any term, provision or condition set forth in
Section 4.03 if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Notes shall, by action of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition, except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. So long as any Notes shall
----------------------------
be outstanding, the Company shall not consolidate with or merge into any other
Person or sell, convey, transfer or lease its properties and assets
substantially as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the principal of and
interest on the Notes and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company as a result of such
transaction as having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation or merger or such sale,
conveyance, transfer, lease or other disposition, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security interest or
other encumbrance of any nature which would not be permitted by this Indenture,
the Company or such successor corporation or such Person, firm or corporation,
as the case may be, shall take such steps as shall be necessary effectively to
secure the Notes (together with, if the Company so determines, any other
indebtedness for money borrowed of the Company then existing or thereafter
created which is not subordinate to the Notes) equally and ratably with (or, at
the option of the Company, prior to) all indebtedness secured thereby; and
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer, lease or
- 20 -
other disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article Five
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
---------------------
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided that the Company shall not be released from its
obligation to pay the principal of or interest on the Notes in the case of a
lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. Any of the following events shall
-----------------
constitute an "Event of Default" hereunder:
----------------
(a) default in the payment of the principal of any of the Notes as and
when the same shall become due and payable either at maturity, by declaration or
otherwise; or
(b) default in the payment of any installment of interest on any of the
Notes as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in this
Indenture applicable to the Notes for a period of 90 days after the date on
which written notice of such failure, specifying such failure and requiring the
Company to remedy the same and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90 days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of any order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or
- 21 -
similar official) of the Company or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors.
SECTION 6.02. Acceleration. If an Event of Default (other than an Event
------------
of Default specified in clause (d) or (e) of Section 6.01 that occurs with
respect to the Company) occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding, by written notice to the Company (and to the Trustee if
such notice is given by the Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of and accrued and unpaid interest on
all the Notes to be immediately due and payable, any provision of this Indenture
or the Notes to the contrary notwithstanding. Upon a declaration of
acceleration, such principal and accrued and unpaid interest shall be
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (c) of Section 6.01 has occurred
and is continuing, such declaration of acceleration shall be automatically
rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (c) shall be remedied or cured by the Company or waived by
the Holders within 60 days after the declaration of acceleration with respect
thereto. If an Event of Default specified in clause (d) or (e) of Section 6.01
occurs with respect to the Company, the principal and accrued and unpaid
interest on the Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such declaration of acceleration, but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee, may waive
all past Defaults and rescind and annul a declaration of acceleration and its
consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest on all Notes, and (iii) the
principal of any Notes that have become due otherwise than by such declaration
or occurrence of acceleration and interest thereon at the rate prescribed
therefor by such Notes, (b) all existing Events of Default, other than the
non-payment of the principal of and accrued and unpaid interest on the Notes
that have become due solely by such declaration of acceleration, have been cured
or waived and (c) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
---------------
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in principal amount of the outstanding Notes shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.08
-----------------------
and 9.02, the Holders of at least a majority in principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a
- 22 -
Default in the payment of principal of or interest on any Note as specified in
clause (a) or (b) of Section 6.01 or in respect of a covenant or provision of
this Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Note affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a majority
-------------------
in aggregate principal amount of the outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided that
the Trustee may refuse to follow any direction if the Trustee, being advised by
counsel, determines that the actions or proceedings so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or executive
committee or a trust committee of directors or trustees and/or responsible
officers shall determine that the actions or proceedings so directed would
involve the Trustee in personal liability; and provided further, that the
Trustee may take any other action it deems proper that is not inconsistent with
any such direction received from Holders of Notes.
SECTION 6.06. Payment of Securities on Default; Suit Therefor. The
-------------------------------------------------
Company covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Notes, as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (b) in case default shall be made in the payment of principal of any of the
Notes, as and when the same shall have become due and payable, whether upon
maturity of the Notes or upon declaration or otherwise, then upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the Holders,
the whole amount that then shall have become due and payable on all of the
Notes, for principal or interest, if any, as the case may be, with interest upon
the overdue principal and (to the extent that payment of such interest is
enforceable under applicable law), upon overdue installments of interest, if
any, at the same rate as the rate of interest specified in the Notes; and, in
addition thereto, such further amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
SECTION 6.07. Limitation on Suits. A Holder may not institute any
--------------------
proceeding, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) the Holder has previously given the Trustee written notice
of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Notes shall have made a written request to the Trustee
to pursue such remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
- 23 -
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.07,
the Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Notes have concurred in any request or direction of the Trustee to pursue any
remedy available to the Trustee or the Holders with respect to this Indenture or
the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.08. Rights of Holders to Receive Payment. Notwithstanding any
------------------------------------
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of or interest on such Note or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the
Notes, shall not be impaired or affected without the consent of such Holder.
SECTION 6.09. Collection Suit by Trustee. If an Event of Default in
---------------------------
payment of principal or interest specified in clause (a) or (b) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor of the
Notes for the whole amount of principal and accrued interest remaining unpaid,
together with interest on overdue principal, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.10. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Notes or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Notes
- 24 -
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.11. Priorities. If the Trustee collects any money pursuant to
----------
this Article Six, it shall pay out the money in the following order:
First: to the payment of all reasonable costs and expenses
applicable to such collection, reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other reasonable expenses
and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith;
Second: to Holders for amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for the
benefit of which such money has been collected, with interest upon the
overdue installments of interest, to the extent lawful, at the same
rate as the rate of interest on the Notes, ratably, without preference
or priority of any kind, according to the amounts due and payable on
such Notes for principal and interest, respectively; and
Third: to the Company or any other obligors of the Notes, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.11.
SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of
---------------------
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.12
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.08, or a suit by Holders of more than 10% in principal amount of the
outstanding Notes.
SECTION 6.13. Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.14. Rights and Remedies Cumulative. No right or remedy herein
------------------------------
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
- 25 -
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.15. Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article Six or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
-------
shall be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections 315(a)
-------------------------
through (d):
(i) the Trustee may conclusively rely, and shall be protected
in acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
- 26 -
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers, provided that the Trustee's conduct does not
constitute negligence or bad faith;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(vii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or
attorney;
(viii) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by the Trustee hereunder in good faith and
in reliance thereon;
(ix) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture;
(x) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(xi) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of Officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any Person authorized to sign an Officers' Certificate, including
any Person specified as so authorized in any such certificate
previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
-------------------------------
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
----------------------
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for
- 27 -
the Company's use or application of the proceeds from the Notes and (iii) shall
not be responsible for any statement in the Notes other than its certificate of
authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of Default
-----------------
occurs and is continuing and if such Default or Event of Default is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each Holder in the
manner and to the extent provided in TIA Section 313(c) notice of the Default or
Event of Default within 45 days after it occurs, unless such Default or Event of
Default has been cured; provided, however, that, except in the case of a default
in the payment of the principal of or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
-----------------------------
July 15, beginning with July 15, 2002, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report, if and as required by TIA Section
313(a), dated as of such July 15.
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
--------------------------
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by the Trustee without negligence or bad faith on its part.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee and any predecessor trustee
for, and hold it harmless against, any and all loss or liability or expense
incurred by it without negligence or bad faith on its part in connection with
the acceptance or administration of this Indenture and its duties under this
Indenture and the Notes, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder, unless the Company is materially prejudiced thereby.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. Unless otherwise set forth herein, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity
- 28 -
as Trustee, except money or property held in trust to pay principal of and
interest on particular Notes.
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in clause (d) or (e) of Section 6.01, the
expenses and the compensation for the services will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.
The provisions of this Section 7.07 shall survive the termination of
this Indenture and the resignation and removal of the Trustee.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
----------------------
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may at any
time remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee. The Company may remove the Trustee if: (i) the Trustee is no longer
eligible under Section 7.10; (ii) the Trustee is adjudged a bankrupt or an
insolvent; (iii) a receiver or other public officer takes charge of the Trustee
or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Notes may, at the expense
of the Company, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder. No successor Trustee
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
If the Trustee is no longer eligible under Section 7.10 or shall fail
to comply with TIA Section 310(b), any Holder who satisfies the requirements of
TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a
- 29 -
successor Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08, the Trustee shall resign
immediately in the manner and with the effect provided in this Section.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligation under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
------------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein, provided such corporation shall be otherwise qualified and eligible
under this Article.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
-----------
who satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition that is subject to the requirements
of applicable Federal or state supervising or examining authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in this Article.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
-------------------
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as otherwise
------------------------------------
provided in this Section 8.01, the Company may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes
that are paid pursuant to Section 4.01 or Notes for whose payment money
or securities have theretofore been held in trust and thereafter repaid
to the Company, as provided in Section 8.05) have been delivered to the
Trustee for cancellation and the Company has paid all sums payable by
it hereunder; or
(ii) (A) the Notes mature within one year, (B) the Company
irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an
- 30 -
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds solely for the benefit of the Holders for that
purpose, money or U.S. Government Obligations sufficient (in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment of any interest
thereon, to pay principal and interest on the Notes to maturity, and to
pay all other sums payable by it hereunder, (C) no Default or Event of
Default with respect to the Notes shall have occurred and be continuing
on the date of such deposit, (D) such deposit will not result in a
breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound and (E) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes
are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07, 8.04, 8.05 and 8.06 shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under the Notes and this Indenture except for those
surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company will
-------------------------------------
be deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 91st day after the date of the deposit referred to
in clause (a) of this Section 8.02, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same if:
(a) with reference to this Section 8.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.10) and conveyed all right,
title and interest to the Trustee for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of and interest,
if any, on the Notes, and dedicated solely to, the benefit of the Holders, in
and to (1) money in an amount, (2) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any payment
referred to in this clause (a), money in an amount or (3) a combination thereof
in an amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by the
Trustee, the principal of and interest on the outstanding Notes on the Stated
Maturity of such principal or interest; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal and interest with
respect to the Notes;
- 31 -
(b) the Company has delivered to the Trustee either (x) an Opinion of
Counsel to the effect that Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of its option
under this Section 8.02 and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if such option had not been exercised, which Opinion of Counsel shall be based
upon (and accompanied by a copy of) a ruling of the Internal Revenue Service to
the same effect unless there has been a change in applicable federal income tax
law after the Closing Date such that a ruling is no longer required or (y) a
ruling directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel.
(c) immediately after giving effect to such deposit, on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 6.01(d) and 6.01(e) are
concerned, at any time during the period ending on the 91st day after such date
of such deposit;
(d) if the Notes are then listed on a national securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Notes will not be delisted as a result of such deposit, defeasance and
discharge; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
have been complied with.
Notwithstanding the foregoing, prior to the end of the 91-day period
referred to in clause (c) of this Section 8.02, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 91-day period with respect to this Section 8.02, the Company's obligations
in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 8.04, 8.05, 8.06 and
the rights, powers, trusts, duties and immunities of the Trustee hereunder shall
survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall survive.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Notes and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Company may omit
---------------------------------
to comply with any term, provision or condition set forth in Sections 4.03, 4.05
and 5.01 and clause (c) of Section 6.01 with respect to Sections 4.03, 4.05 and
5.01, and clause (c) of Section 6.01 shall be deemed not to be an Event of
Default, in each case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of and interest,
if any, on the Notes, and dedicated solely to, the benefit of
- 32 -
the Holders, in and to (A) money in an amount, (B) U.S. Government
Obligations that, through the payment of interest and principal in
respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this
clause (i), money in an amount or (C) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of and interest
on the outstanding Notes on the Stated Maturity of such principal or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal and interest with respect
to the Notes;
(ii) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit and
defeasance of certain covenants and Events of Default and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred;
(iii) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 6.01(d)
and 6.01(e) are concerned, at any time during the period ending on the
91st day after such date of such deposit;
(iv) if the Notes are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Notes will not be delisted as a result
of such deposit, defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the
--------------------------
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of and interest on the Notes; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
--------------------
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for the payment of principal or interest
that remains unclaimed for two years; provided that the Trustee or Paying Agent
before being required to make any payment may cause to be published at the
expense of the Company once in
- 33 -
a newspaper of general circulation in The City of New York or mail to each
Holder entitled to such money at such Holder's address (as set forth in the
Security Register) notice that such money remains unclaimed and that after a
date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
-------------
to apply any money or U.S. Government Obligations in accordance with Section
8.01, 8.02 or 8.03, as the case may be, by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
8.01, 8.02 or 8.03, as the case may be; provided that, if the Company has made
any payment of principal of or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when authorized
--------------------------
by a resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend or supplement this
Indenture or the Notes without notice to or the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency in this
Indenture;
(ii) to comply with Article Five;
(iii) to comply with any requirements of the Commission in
connection with any qualification of this Indenture under the TIA;
(iv) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(v) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(vi) to add to the covenants of the Company for the protection
of the Holders, to add any additional Events of Default with respect to
the Notes, or to surrender any right or power conferred upon the
Company; or
- 34 -
(vii) to make any change that, in the good faith opinion of the Board of
Directors as evidenced by a Board Resolution, does not materially and
adversely affect the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
-----------------------
6.08 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend this Indenture and the Notes with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding, and the Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Notes.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount of or interest on any Note
except as provided in this Indenture;
(iii) change any place or currency of payment of principal of
or interest on any Note;
(iv) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity on any Note;
(v) reduce the percentage or principal amount of outstanding
Notes the consent of whose Holders is necessary to modify or amend this
Indenture or to waive compliance with certain provisions of or certain
Defaults under this Indenture;
(vi) waive a default in the payment of principal of or
interest on any Note; or
(vii) modify any of the provisions of this Section 9.02,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Note affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
- 35 -
SECTION 9.03. Action by Holders; Record Dates. Whenever in this
-------------------
Indenture it is provided that the Holders of a specified aggregate principal
amount of the outstanding Notes may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
Holders of such specified amount have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by such
Holders in person or by agent or proxy appointed in writing, or (b) the record
of the Holders voting in favor thereof at any meeting of the Holders duly called
and held in accordance with the provisions of Article Ten, or (c) any
combination of such instrument or instruments and any such record of such a
meeting of the Holders.
Subject to the provisions of Sections 7.02 and 10.05, proof of the
execution of any instrument by a Holder or its agent or proxy shall be
sufficient if the ownership of the Notes shall be proved by (a) the Security
Register or by a certificate of the Registrar; or (b) in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in any
other manner which the Trustee may deem sufficient.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the
second paragraph of Section 9.02, the amendment or waiver shall bind each Holder
who has consented to it and every subsequent Holder of a Note that evidences the
same indebtedness as the Note of the consenting Holder.
SECTION 9.04. Revocation and Effect of Consent. Until an amendment or
--------------------------------
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
SECTION 9.05. Notation on or Exchange of Notes. If an amendment,
-----------------------------------
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver such Note to the Trustee. At the Company's expense, the
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder, and the Trustee may place an appropriate notation
on any Note thereafter authenticated. Alternatively, if the Company or the
- 36 -
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation, or issue a new Note, shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, Etc. The Trustee shall be
---------------------------
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Company. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.07. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect
ARTICLE TEN
MEETINGS OF THE HOLDERS
SECTION 10.01. Purposes of Meetings. A meeting of the Holders may be
--------------------
called at any time and from time to time pursuant to the provisions of this
Article Ten for any of the following purposes:
(i) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive any Default hereunder
and its consequences, or to take any other action authorized to be
taken by the Holders pursuant to any of the provisions of Article Six;
(ii) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(iii) to consent to any amendment, supplement or waiver
pursuant to the provisions of Section 9.02; or
(iv) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the outstanding Notes under any other provision of this Indenture or
under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time
---------------------------
call a meeting of the Holders to take any action specified in Section 10.01, to
be held at such time and at such place in the Borough of Manhattan, The City of
New York, as the Trustee shall determine. Notice of every meeting of the
Holders, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given (a)
- 37 -
to all Holders of Notes then outstanding, by publication at least twice in an
Authorized Newspaper in the Borough of Manhattan, The City of New York prior to
the date fixed for the meeting, the first publication, in each case, to be not
less than 20 nor more than 180 days prior to the date fixed for the meeting and
the last publication to be not more than five days prior to the date fixed for
the meeting and (b) to all Holders of Notes then outstanding who have filed
their names and addresses with the Trustee, by mailing such notice to such
Holders at such addresses, not less than 20 nor more than 180 days prior to the
date fixed for the meeting. Failure of any Holder or Holders to receive such
notice or any defect therein shall in no case affect the validity of any action
taken at such meeting. Any meeting of the Holders shall be valid without notice
if the Holders of all Notes then outstanding, the Company and the Trustee are
present in person or by proxy or shall have waived notice thereof before or
after the meeting.
SECTION 10.03. Call of Meetings by Company or Holders. In case at any
--------------------------------------
time the Company, pursuant to a Board Resolution, or the Holders of at least 10%
in aggregate principal amount of the Notes then outstanding, as the case may be,
shall have requested the Trustee to call a meeting of the Holders to take any
action authorized in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, the Trustee
shall not have mailed or published as provided in Section 10.02, the notice of
such meeting within 30 days after receipt of such request, then the Company or
the Holders in the amount above specified may determine the time and the place
in said Borough of Manhattan for such meeting and may call such meeting to take
any action authorized in Section 10.01, by mailing or publishing notice thereof
as provided in Section 10.02.
SECTION 10.04. Qualification for Voting. To be entitled to vote at any
------------------------
meeting of the Holders a person shall be a Holder of the Notes or a person
appointed by an instrument in writing as proxy by such Holder. The only persons
who shall be entitled to be present or to speak at any meeting of the Holders
shall be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of
-----------
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of the Holders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as the Trustee shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Holders as provided in Section 10.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote.
Subject to the provisions of Section 9.03, at any meeting of the
Holders, each Holder or proxy shall be entitled to one vote for each $1,000
principal amount at maturity of outstanding Notes held or represented by such
Holder; provided, however, that no vote shall be cast or
- 38 -
counted at any meeting in respect of any Note challenged as not outstanding and
ruled by the chairman of the meeting not to be outstanding. The chairman of the
meeting shall have no right to vote except as a Holder or proxy. Any meeting of
the Holders duly called pursuant to the provisions of Section 10.02 or 10.03 may
be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
------
meeting of the Holders shall be by written ballot on which shall be subscribed
the signatures of the Holders or proxies and on which shall be inscribed the
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of the Holders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section
10.02. The record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached hereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. Prior to the effectiveness
---------------------------
of the Registration Statement, this Indenture shall incorporate and be governed
by the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. After the effectiveness of the Registration
Statement, this Indenture shall be subject to the provisions of the TIA that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 11.02. Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person, mailed by first-class
mail or sent by telecopier transmission addressed as follows:
if to the Company:
Aon Corporation
200 East Randolph Street
Chicago, Illinois 60601
Telecopier No.: (312) 381-6060
Attention: Treasurer
if to the Trustee:
- 39 -
The Bank of New York
c/o BNY Midwest Trust Company
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it at
its address as it appears on the Security Register by first-class mail and shall
be sufficiently given to him if so mailed within the time prescribed. Any notice
or communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder as provided
herein or any defect in any such notice or communication shall not affect its
sufficiency with respect to other Holders. Except for a notice to the Trustee,
which is deemed given only when received, and except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided in
this Section 11.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.03. Certificate and Opinion as to Conditions Precedent. Upon
--------------------------------------------------
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
- 40 -
SECTION 11.04. Statements Required in Certificate or Opinion. Each
------------------------------------------------
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person,
such person has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar. The Trustee
-------------------------------------------
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06. Payment Date Other Than a Business Day. If any Interest
--------------------------------------
Payment Date or the Maturity Date shall not be a Business Day, then payment of
principal of or interest on the Notes will be made on the next succeeding
Business Day with the same force and effect as if made on the date such payment
was due, and no interest will accrue on such payment for the period from and
after such Interest Payment Date or the Maturity Date to the date of such
payment on the next succeeding Business Day.
SECTION 11.07. Governing Law. This Indenture and the Notes shall be
--------------
governed by the laws of the State of New York. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture or
the Notes.
SECTION 11.08. No Adverse Interpretation of Other Agreements. This
------------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.09. No Recourse Against Others. No recourse for the payment
--------------------------
of the principal of or interest on any of the Notes, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company contained in this Indenture or
in any of the Notes, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator or against any past, present or
future partner, stockholder, other equityholder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person, either
directly or
- 41 -
through the Company or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Notes.
SECTION 11.10. Successors. All agreements of the Company in this
----------
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 11.11. Duplicate Originals. The parties may sign any number of
-------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this Indenture or
------------
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of Contents
-----------------
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms and provisions hereof.
SECTION 11.14. Counterparts. This Indenture may be executed in any
------------
number of counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same instrument.
- 42 -
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
Aon CORPORATION
By:_____________________________
Name:
Title:
THE BANK OF NEW YORK
By:_____________________________
Name:
Title:
- 43 -
EXHIBIT A
---------
FORM OF NOTE
------------
[Unless and until a Note is exchanged for an Exchange Note or
sold in connection with an effective Registration Statement pursuant to the
Registration Rights Agreement, (i) the U.S. Global Notes and U.S. Physical Notes
shall bear the legend set forth below and (ii) the Offshore Physical Notes and
Offshore Global Notes shall bear the legend set forth below until at least the
41st day after the Closing Date and receipt by the Company and the Trustee of a
certificate substantially in the form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS,
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY U.S. PERSON EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER
RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME
PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
A-1
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF
THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.]
[Each Global Note, whether or not an Exchange Note, shall also bear the
following legend.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND
IS REGISTERED IN THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFERS OF THIS GLOBAL NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE INDENTURE.]
A-2
[FACE OF NOTE]
AON CORPORATION
6.20% NOTE DUE 2007
[CUSIP] [CINS] [ISIN] [__________]
No. ____ Principal Amount $__________
Aon CORPORATION, a Delaware corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to _____________, or its registered assigns, the
principal sum of ____________ ($_________) on January 15, 2007.
Interest Payment Dates: January 15 and July 15 of each year, commencing
July 15, 2002.
Record Dates: The fifteenth calendar day, whether or not a Business
Day, immediately preceding each Interest Payment Date.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Additional provisions of this Note are set forth on the other side of
this Note.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Aon CORPORATION
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 6.20% Notes due 2007 described in the
within-mentioned Indenture.
Date: December __, 2001
THE BANK OF NEW YORK, as Trustee
By:_____________________________
Authorized Signatory
A-4
[REVERSE SIDE OF NOTE]
AON CORPORATION
6.20% NOTE DUE 2007
1. Principal and Interest.
----------------------
The Company will pay the principal of this Note on January 15, 2007.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above, subject to adjustment as described below.
Interest will be payable semiannually in arrears (to the Holders of
record of the Notes at the close of business on the fifteenth calendar day,
whether or not a Business Day, immediately preceding the relevant Interest
Payment Date) on each Interest Payment Date of each year, commencing July 15,
2002; provided that no interest shall accrue on the principal amount of this
Note prior to December 13, 2001. Interest on the Notes will be computed on the
basis of a 360-day year of twelve 30-day months.
If an exchange offer (the "Exchange Offer") registered under the
---------------
Securities Act is not consummated or a Shelf Registration Statement under the
Securities Act with respect to resales of the Notes is not declared effective by
the Commission, on or before the date that is 270 days after the date on which
the Notes are originally issued under this Indenture (the "Registration Date")
in accordance with the terms of the Registration Rights Agreement, dated as of
December 13, 2001, between the Company and Morgan Stanley & Co. Incorporated,
the annual interest rate payable on the Notes shall be increased by 0.5% from
the rate shown above accruing from the Registration Date, payable in cash
semiannually, in arrears, on each Interest Payment Date until the Exchange Offer
is consummated or the Shelf Registration Statement is declared effective. The
Holder of this Note is entitled to the benefits of such Registration Rights
Agreement.
Interest on the Notes will accrue from, and including, December 13,
2001 to, and excluding, the first Interest Payment Date and then from, and
including, the immediately preceding Interest Payment Date to which interest has
been paid or duly provided for to, but excluding, the next Interest Payment Date
or the Maturity Date, as the case may be; provided that, if there is no existing
default in the payment of interest and this Note is authenticated between a
Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Interest Rate Adjustment.
------------------------
In the event that either Moody's or S&P downgrades the rating ascribed
to the Company's senior unsecured debt below A3 in the case of Moody's or below
A- in the case of S&P, the interest rate payable on the Notes will be increased
by 0.25% for each Rating Category downgrade below the applicable level by either
rating agency. If following such an event, Moody's or S&P subsequently increases
the rating ascribed to the Company's senior unsecured d
A-5
ebt, then the interest rate payable on the Notes will be decreased by 0.25% for
each Rating Category upgrade by either rating agency; provided, however, that in
no event will interest rate payable on the Notes be reduced to below the initial
interest rate as a result of this provision. Any such interest rate increase or
decrease will take effect from the Interest Payment Date next following the
related rating downgrade or upgrade, as the case may be.
3. Method of Payment.
-----------------
The Company will pay interest on the principal amount of the Notes as
provided above on each January 15 and July 15, commencing July 15, 2002 to the
persons who are Holders (as reflected in the Security Register at the close of
business on the fifteenth calendar day, whether or not a Business Day,
immediately preceding the Interest Payment Date), in each case, even if the Note
is cancelled on registration of transfer or registration of exchange after such
Record Date; provided that, with respect to the payment of principal, the
Company will make payment to the Holder that surrenders this Note to a Paying
Agent on or after January 15, 2007.
The Company will pay principal and, as provided above, interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal and
interest by its check payable in such money. It may mail an interest check to a
Holder's registered address (as reflected in the Security Register). If any
Interest Payment Date or the Maturity Date falls on a day that is not a Business
Day, the payment of principal and interest will be made on the next succeeding
Business Day as if made on the date such payment was due, and no interest will
accrue on such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
4. Paying Agent, Calculation Agent and Registrar.
---------------------------------------------
Initially, the Trustee will act as authenticating agent, Paying Agent,
Calculation Agent and Registrar. The Company may change any authenticating
agent, Paying Agent, Calculation Agent or Registrar without notice. The Company,
any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Registrar or Co-Registrar.
5. Indenture; Limitations.
----------------------
The Company issued the Notes under an Indenture, dated as of December
13, 2001 (the "Indenture"), between the Company and The Bank of New York, as
trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and
applicable law, issue additional Notes under the Indenture.
A-6
6. Redemption.
----------
The Notes are not redeemable prior to the Maturity Date.
7. Denominations; Transfer; Exchange.
---------------------------------
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and multiples of $1,000 in excess thereof. A Holder
may register the transfer or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
---------------------
A Holder shall be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent will pay the money back to the
Company at its request. After that, Holders entitled to the money must look to
the Company for payment, unless an abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease. In no event will interest accrue on such unclaimed
monies.
10. Discharge Prior to Maturity.
---------------------------
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of and accrued and
unpaid interest on the Notes (a) to maturity, the Company will be discharged
from the Indenture and the Notes, except in certain circumstances for certain
provisions thereof, and (b) to the Stated Maturity, the Company will be
discharged from certain covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, (a) the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding and (b) any existing default
or compliance with any provision may be waived with the consent of the Holders
of at least a majority in principal amount of the Notes then outstanding.
Without notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
12. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Company, among other things, to (a) create security interests in the common
stock of any Significant Subsidiary to
A-7
secure debt or (b) merge, consolidate or transfer or lease substantially all of
its assets. On or before a date not more than four months after the end of each
fiscal year, the Company shall deliver to the Trustee an Officers' Certificate
stating whether or not the signers thereof know of any Default or Event of
Default under such restrictive covenants.
13. Successor Persons.
-----------------
When a successor Person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Defaults and Remedies.
---------------------
Any of the following events constitutes an "Event of Default" under the
Indenture:
(a) default in the payment of the principal of any of the Notes as and
when the same shall become due and payable either at maturity, by declaration or
otherwise; or
(b) default in the payment of any installment of interest on any of the
Notes as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in this
Indenture applicable to the Notes for a period of 90 days after the date on
which written notice of such failure, specifying such failure and requiring the
Company to remedy the same and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90 days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of any order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding shall, declare all
the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes
A-8
automatically become due and payable. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of at least a majority in principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power.
15. Trustee Dealings with the Company.
---------------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
16. No Recourse Against Others.
--------------------------
No incorporator or any past, present or future partner, stockholder,
other equityholder, officer, director, employee or controlling person, as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
17. Authentication.
--------------
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
18. Abbreviations.
-------------
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
19. Governing Law.
-------------
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York. The Trustee, the Company and the Holders agree to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to the Notes.
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to Aon Corporation, 200
East Randolph Street, Chicago, Illinois 60601; Attention: Treasurer.
A-9
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto:_________________________________________________
Insert Taxpayer Identification No.
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing attorney to transfer said Note on the books of the Company with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933 provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
A-10
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date: _____________
____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
[TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: _____________
____________________________________________
NOTICE: To be executed by an executive
officer]
A-11
[TO BE INCLUDED ON EXCHANGE NOTES]
ASSIGNMENT FORM
I or we assign and transfer this Note to:_______________________________________
Insert social security or other identifying number of assignee
________________________________________________________________________________
Print or type name, address and zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
and irrevocably appoint _____________________________, as agent, to transfer
this Note on the books of the Company.
The agent may substitute another to act for him.
Date: _______________
Signed _____________________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee*:_____________________________
* The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" as
defined by Rule 17Ad-15 under the Exchange Act.
A-12
EXHIBIT B
---------
Form of Certificate
-------------------
__________, 200_
The Bank of New York
c/o BNY Midwest Trust Company
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Re: Aon Corporation (the "Company")
6.20% Notes due 2007 (the "Notes")
----------------------------------
Dear Sirs:
This letter relates to U.S. $__________ principal amount of Notes
represented by a Note (the "Legended Note") which bears a legend outlining
restrictions upon transfer of such Legended Note. Pursuant to Section 2.02 of
the Indenture dated as of December 13, 2001 (the "Indenture") relating to the
Notes, we hereby certify that we are (or we will hold such securities on behalf
of) a person outside the United States to whom the Notes could be transferred in
accordance with Rule 904 of Regulation S promulgated under the U.S. Securities
Act of 1933. Accordingly, you are hereby requested to exchange the legended
certificate for an unlegended certificate representing an identical principal
amount of Notes, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:_____________________________
Authorized Signature
EXHIBIT C
---------
Form of Certificate to Be
Delivered in Connection with Transfers to
Non-QIB Institutional Accredited Investors
------------------------------------------
__________, 200_
The Bank of New York
c/o BNY Midwest Trust Company
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Re: Aon Corporation (the "Company")
6.20% Notes due 2007 (the "Notes")
----------------------------------
Dear Sirs:
In connection with our proposed purchase of $__________ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as of
December 13, 2001 (the "Indenture") relating to the Notes and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with such restrictions and conditions and the Securities
Act of 1933, amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered,
sold, pledged or otherwise transferred except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Notes within the
time period referred to in Rule 144(k) of the Securities Act as in effect on the
date of transfer of the Notes, we will do so only (A) to the Company or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (C) inside the United
States to an institutional "accredited investor" (as defined below) that, prior
to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and, if such transfer is in respect of an aggregate
principal amount of less than $250,000, an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act, (D) outside
the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available) or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Company such certifications, legal opinions
and other information as you
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:_____________________________________
Authorized Signature
C-2
EXHIBIT D
---------
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
--------------------------------------------------
__________, 200_
The Bank of New York
c/o BNY Midwest Trust Company
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Re: Aon Corporation (the "Company")
6.20% Notes due 2007 (the "Notes")
----------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of 1933
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:_____________________________________
Authorized Signature
D-1