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AMENDED AND RESTATED
TRUST AGREEMENT
among
AON CORPORATION, as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS, AS HEREIN DEFINED
Dated as of January 13, 1997
AON CAPITAL A
- --------------------------------------------------------------------------------
AON CAPITAL A
Certain Sections of the Trust Agreement relating to
Sections 310 through 318 of the Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
(S) 310(a)(1)........................................................ 8.1
(a)(2)........................................................ 8.1
(a)(3)........................................................ 8.9
(a)(4)................................................. 2.7(a)(ii)
(b) ........................................................ 8.8
(S) 311(a) ....................................................... 8.13
(b) ....................................................... 8.13
(S) 312(a) ........................................................ 5.7
(b) ........................................................ 5.7
(c) ........................................................ 5.7
(S) 313(a) .................................................... 8.14(a)
(a)(4).................................................... 8.14(a)
(b) .................................................... 8.14(b)
(c) ....................................................... 10.8
(d) .................................................... 8.14(c)
(S) 314(a) ....................................................... 8.15
(b) ............................................. Not Applicable
(c)(1)....................................................... 8.16
(c)(2)....................................................... 8.16
(c)(3)............................................. Not Applicable
(d) ............................................. Not Applicable
(e) .................................................. 1.1, 8.16
(S) 315(a) ............................................. 8.2(a), 8.4(a)
(b) .................................................. 8.3, 10.8
(c) ..................................................... 8.2(a)
(d) ................................................... 8.2, 8.4
(e) ............................................. Not Applicable
(S) 316(a) ....................................................... 5.14
(a)(1)(A)................................................. 5.14(c)
(a)(1)(B)................................................. 5.14(b)
(a)(2)............................................. Not Applicable
(b) ....................................................... 5.14
(c) ....................................................... 6.7
(S) 317(a)(1)............................................. Not Applicable
(a)(2)............................................. Not Applicable
(b) ........................................................ 5.9
(S) 318(a) ...................................................... 10.10
____________
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
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TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINED TERMS.................................................... 2
SECTION 1.1. Definitions................................................... 2
ARTICLE II. CONTINUATION OF THE TRUST....................................... 15
SECTION 2.1. Name.......................................................... 15
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business................................................... 15
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses....................................... 16
SECTION 2.4. Issuance of the Capital Securities............................ 16
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures.................................... 16
SECTION 2.6. Declaration of Trust.......................................... 17
SECTION 2.7. Authorization to Enter into Certain Transactions.............. 17
SECTION 2.8. Assets of Trust............................................... 22
SECTION 2.9. Title to Trust Property....................................... 22
ARTICLE III. PAYMENT ACCOUNT................................................ 22
SECTION 3.1. Payment Account............................................... 22
ARTICLE IV. DISTRIBUTIONS; REDEMPTION....................................... 22
SECTION 4.1. Distributions................................................ 22
SECTION 4.2. Redemption................................................... 23
SECTION 4.3. Subordination of Common Securities........................... 26
SECTION 4.4. Payment Procedures........................................... 27
SECTION 4.5. Tax Returns and Reports...................................... 27
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.................. 28
SECTION 4.7. Reduction for Payments under Indenture or
Pursuant to Direct Actions................................... 28
ARTICLE V. TRUST SECURITIES CERTIFICATES.................................... 28
SECTION 5.1. Initial Ownership............................................ 28
SECTION 5.2. The Trust Securities Certificates; Execution
and Delivery Thereof......................................... 28
SECTION 5.3. Form of Trust Secutities Certificates........................ 29
SECTION 5.4. Registration of Transfer and Exchange of
Capital Securities Certificates.............................. 30
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates...................................... 32
SECTION 5.6. Persons Deemed Securityholders............................... 32
SECTION 5.7. Access to List of Securityholders'
Names and Addresses.......................................... 33
SECTION 5.8. Maintenance of Office or Agency for Transfers................ 33
SECTION 5.9. Appointment of Paying Agent.................................. 33
SECTION 5.10. Ownership of Common Securities by Depositor.................. 34
SECTION 5.11. Book-Entry Interests......................................... 34
SECTION 5.12. Notices to Clearing Agency................................... 38
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SECTION 5.13. Procedures for Issuance of Definitive
Capital Securities Certificates.............................. 38
SECTION 5.14. Rights of Securityholders.................................... 39
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING....................... 42
SECTION 6.1. Limitations on Voting Rights................................. 42
SECTION 6.2. Notice of Meetings........................................... 43
SECTION 6.3. Meetings of Capital Securityholders.......................... 43
SECTION 6.4. Voting Rights................................................ 44
SECTION 6.5. Proxies, etc................................................. 44
SECTION 6.6. Securityholder Action by Written Consent..................... 44
SECTION 6.7. Record Date for Voting and Other Purposes.................... 45
SECTION 6.8. Acts of Securityholders...................................... 45
SECTION 6.9. Inspection of Records........................................ 46
ARTICLE VII. REPRESENTATIONS AND WARRANTIES................................. 46
SECTION 7.1. Representations and Warranties of the Bank,
the Property Trustee and the Delaware Trustee................ 46
SECTION 7.2. Representations and Warranties of Depositor.................. 48
ARTICLE VIII. THE TRUSTEES.................................................. 49
SECTION 8.1. Corporate Property Trustee Required; Eligibility
of Trustees.................................................. 49
SECTION 8.2. Certain Duties and Responsibilities.......................... 49
SECTION 8.3. Certain Notices.............................................. 51
SECTION 8.4 Certain Rights of Property Trustee........................... 52
SECTION 8.5. Not Responsible for Recitals or Issuance
of Securities................................................ 54
SECTION 8.6. May Hold Securities.......................................... 55
SECTION 8.7. Compensation; Indemnity; Fees................................ 55
SECTION 8.8. Conflicting Interests........................................ 56
SECTION 8.9. Co-Trustees and Separate Trustee............................. 57
SECTION 8.10. Resignation and Removal; Appointment of
Successor.................................................... 59
SECTION 8.11. Acceptance of Appointment by Successor....................... 61
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business.................................................. 61
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Trust........................................... 62
SECTION 8.14. Reports by Property Trustee.................................. 63
SECTION 8.15. Reports to the Property Trustee.............................. 63
SECTION 8.16. Evidence of Compliance with Conditions
Precedent.................................................... 63
SECTION 8.17. Number of Trustees........................................... 64
SECTION 8.18. Delegation of Power.......................................... 64
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER............................. 65
SECTION 9.1. Termination Upon Expiration Date............................. 65
SECTION 9.2. Early Termination............................................ 65
SECTION 9.3. Termination.................................................. 65
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SECTION 9.4. Liquidation.................................................. 66
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Trust................................. 68
ARTICLE X. MISCELLANEOUS PROVISIONS......................................... 69
SECTION 10.1. Limitation of Rights of Securityholders to
Terminate Trust.............................................. 69
SECTION 10.2. Amendment.................................................... 69
SECTION 10.3. Separability................................................. 71
SECTION 10.4. Governing Law................................................ 71
SECTION 10.5. Payments Due on Non-Business Day............................. 71
SECTION 10.6. Successors................................................... 72
SECTION 10.7. Headings..................................................... 72
SECTION 10.8. Reports, Notices and Demands................................. 72
SECTION 10.9. Agreement Not to Petition.................................... 73
SECTION 10.10.Trust Indenture Act; Conflict with Trust
Indenture Act................................................ 73
SECTION 10.11.Acceptance of Terms of Trust Agreement,
Guarantee an Indenture....................................... 74
SECTION 10.12.Counterparts................................................. 74
EXHIBIT A Certificate of Trust............................................. A-1
EXHIBIT B Form of 144A Global Security..................................... B-1
EXHIBIT C Form of Regulation S Global Security............................. C-1
EXHIBIT D Form of Definitive Capital Security Certificate.................. D-1
EXHIBIT E Form of Common Security Certificate.............................. E-1
EXHIBIT F Form of Letter to be Delivered by Institutional
Accredited Investors................................................ F-1
EXHIBIT G Form of Transfer Certificate - 144A Global Security
to Regulation S Global Security..................................... G-1
EXHIBIT H Form of Transfer Certificate - Regulation S Global
Security to 144A Global Security.................................... H-1
EXHIBIT I Form of Private Placement Legend................................. I-1
EXHIBIT J Form of Minium Transfer Legend................................... J-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 13, 1997, among
(i) Aon Corporation, a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The Bank of New York, a New York banking
corporation, as property trustee, (in such capacity, the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) The Bank of New York (Delaware), a banking corporation that
maintains its principal place of business in Delaware, as Delaware trustee (the
"Delaware Trustee"), (iv) Harvey Medvin, an individual, Michael Conway, an
individual, and James White, an individual, each of whose address is c/o Aon
Corporation, 123 North Wacker Drive, Chicago, Illinois 60606 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") and (v)
the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Delaware Trustee and an Administrative Trustee
have heretofore duly declared and created a business trust pursuant to the
Delaware Business Trust Act by entering into that certain Trust Agreement, dated
as of December 27, 1996 (the "Original Trust Agreement"), and by the execution
and filing with the Secretary of State of the State of Delaware of a Certificate
of Trust, filed on December 27, 1996, substantially in the form attached as
Exhibit A;
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Capital Securities by the Trust
pursuant to the Purchase Agreement, (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (iv) the
mandatory exchange by the Property Trustee with the Depositor of the Private
Debentures for the Exchange Debentures, and the exchange by the Trust with the
Securityholders of the Private Capital Securities for the Exchange Capital
Securities, each such exchange registered under the Securities Act;
WHEREAS, upon the effectiveness of the exchange registration agreement
referred to in the Capital Securities Exchange and Registration Rights
Agreement, this Trust Agreement shall be subject to, and shall be governed by,
the provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act;
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NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Distributions" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Tax Sums" has the meaning specified in Section 4.08 of the
Indenture.
"Administrative Trustee" means a Person satisfying the eligibility
requirements set forth in Section 8.1(b) and initially means each of Harvey
Medvin, Michael Conway and James White, solely
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in such Person's capacity as Administrative Trustee of the Trust heretofore
created and continued hereunder and not in such Person's individual capacity, or
such Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by such Person in furtherance of any such action.
3
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Business Day" means any day which is not a Saturday or Sunday and which is
neither a legal holiday nor a day on which banking institutions in The City of
New York are authorized or required by law or executive order to close or a day
on which the Corporate Trust Office of the Property Trustee or the Debenture
Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, which certificate shall initially be substantially in the
form attached as Exhibit B, Exhibit C or Exhibit D, or Exchange Capital
Securities.
"Capital Securities Exchange and Registration Rights Agreement" means an
agreement dated as of January 13, 1997 among the Depositor, the Trust and the
Initial Purchasers named in Schedule I to the Purchase Agreement.
"Capital Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein. Unless the context otherwise
requires, the term "Capital Securities" shall include any Exchange Capital
Securities to be issued and exchanged for any Private Capital Securities.
"Cedel" means Cedel Bank, societe anonyme.
"Certificate Depository Agreement" means the agreement among the Trust, the
Property Trustee and DTC, as the initial Clearing Agency, dated as of the
Closing Date, relating to the Capital Securities Certificates, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means January 13, 1997, which is the date of execution and
delivery of this Trust Agreement, or such other date
4
as may be designated the Closing Date pursuant to the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit E.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal corporate trust office of the Property Trustee located in
New York, New York, and (ii) when used with respect to the Debenture Trustee,
the principal corporate trust office of the Debenture Trustee located in New
York, New York.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Exchange and Registration Rights Agreement" means an agreement
dated as of January 13, 1997 among the Depositor, the Trust and the Initial
Purchasers named in Schedule I to the Purchase Agreement.
"Debenture Prepayment Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Bank of New York, and any successor thereto
under the Indenture.
"Debentures" means the Depositor's 8.205% Junior Subordinated Deferrable
Interest Debentures due January 1, 2027, issued pursuant to the Indenture.
5
"Definitive Capital Securities Certificates" means Capital Securities
Certificates issued in definitive, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ((S)) 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust heretofore created and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 5.14(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1 and shall include, if applicable, Additional
Distributions, Special Distributions and Additional Tax Sums.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Euroclear" means Morgan Guaranty Trust Company of New York in its capacity
as operator of the Euroclear System.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period of 30
days; or
6
(c) default by the Property Trustee in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is
addressed in clause (b) or (c) above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered or certified
mail, to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure to appoint a successor Property Trustee within 60 days
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Capital Securities" means Capital Securities representing
undivided beneficial interests in the assets of the Trust, issued by the Trust
in an exchange offer for the Private Capital Securities, such exchange offer
being registered under the Securities Act, all pursuant to the Capital
Securities Exchange and Registration Rights Agreement; provided, however, that
the aggregate Liquidation Amount of the Private Capital Securities and the
Exchange Capital Securities at any one time outstanding shall not exceed
$800,000,000.
"Exchange Debentures" means a new series of junior subordinated debentures
issued by the Depositor in a mandatory exchange offer for the Private
Debentures, such exchange offer being registered under the Securities Act, all
pursuant to the Debenture Exchange and Registration Rights Agreement.
"Exchange Guarantee" means the Exchange Guarantee extended by the Depositor
for the benefit of the Holders of Capital Securities pursuant to the Exchange
Guarantee Agreement, and registered under the Securities Act pursuant to the
Guarantee Exchange and Registration Rights Agreement.
"Exchange Guarantee Agreement" means the Guarantee Agreement to be entered
into by the Depositor, as Guarantor, and The Bank of
7
New York, as Guarantee Trustee, pursuant to the Guarantee Exchange and
Registration Rights Agreement.
"Exchange Offer" means an exchange offer of the Exchange Capital Securities
for the Private Capital Securities, which is registered under the Securities Act
pursuant to the Capital Securities Exchange and Registration Rights Agreement.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means any Capital Securities
Certificate in the form of a 144A Global Security, a Regulation S Global
Security and, if applicable, any Exchange Capital Security represented in global
form and deposited with the Clearing Agency or the Property Trustee as custodian
for the Clearing Agency.
"Guarantee" means the Private Guarantee with respect to the Private Capital
Securities and the Exchange Guarantee with respect to the Exchange Capital
Securities.
"Guarantee Agreement" means the Capital Securities Guarantee Agreement
dated as of January 13, 1997 between the Depositor, as Guarantor, and The Bank
of New York, as Guarantee Trustee.
"Guarantee Exchange and Registration Rights Agreement" means an agreement
dated as of January 13, 1997 among the Depositor, the Trust and the Initial
Purchasers named in Schedule I to the Purchase Agreement.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.7(c).
"Indenture" means the Indenture, dated as of January 13, 1997, between the
Depositor and the Debenture Trustee, as trustee, as supplemented by the First
Supplemental Indenture dated as of January 13, 1997, as amended or supplemented
from time to time.
8
"Initial Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
"Institutional Accredited Investor" means an institutional investor that is
an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Capital Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution, termination or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution,
termination and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Minimum Transfer Legend" means the legend substantially in the form
attached as Exhibit J.
9
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President, any Vice Chairman or any Vice President of the Depositor (whether or
not designated by a number or a word or words added before or after the title
Vice President) and by the Treasurer, an Assistant Treasurer, the Controller,
the Secretary or an Assistant Secretary of the Depositor and delivered to the
appropriate Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"144A Global Security" has the meaning specified in Section 5.3(b).
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor (including counsel who is
an employee of the Depositor), who is experienced in matters related to the
substance of the opinion.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
10
(a) Trust Securities theretofore cancelled by the Securities Registrar or
delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided, however, that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities that such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Capital Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Capital Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrative Trustee the pledgee's right so to act
with respect to such Capital Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global Capital
Securities Certificate as reflected in the records of the Clearing Agency or, if
a Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Security-holders in which all amounts paid in respect of
the Debentures will
11
be held and from which the Property Trustee, through the Paying Agent, shall
make payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"PORTAL Market" means the Private Offerings, Resales and Trading through
Automated Linkages Market operated by the National Association of Securities
Dealers, Inc. (or any successor thereto).
"Private Capital Securities" means the $800,000,000 aggregate Liquidation
Amount of the Trust's 8.205% Capital Securities issued pursuant to this
Agreement on the Closing Date.
"Private Debentures" means the $824,000,000 aggregate principal amount of
the Depositor's 8.205% Junior Subordinated Deferrable Interest Debentures due
January 1, 2027, issued pursuant to the Indenture on the Closing Date.
"Private Guarantee" means the Guarantee extended by the Depositor for the
benefit of the Holders of Private Capital Securities pursuant to the Guarantee
Agreement.
"Private Placement Legend" means the legend substantially in the form
attached as Exhibit I.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore created and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor Property Trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of January 8,
1997, among the Trust, the Depositor and the Purchasers named in Schedule I
thereto.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Prepayment Date
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and the stated maturity of the Debentures shall be a Redemption Date for a Like
Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to but excluding the Redemption Date, plus the related amount of
the premium, if any, paid by the Depositor upon the concurrent redemption of a
Like Amount of Debentures, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"Registration Rights Agreements" means the Capital Securities Exchange and
Registration Rights Agreement, the Debenture Exchange and Registration Rights
Agreement and the Guarantee Exchange and Registration Rights Agreement,
collectively.
"Regulation S" means Regulation S under the Securities Act or any successor
provision.
"Regulation S Global Security" has the meaning specified in Section 5.3(c).
"Relevant Trustee" has the meaning specified in Section 8.10.
"Restricted Period" means the period of 40 consecutive days beginning on
and including the later of (x) the day on which the offering of the Capital
Securities commences or (y) the Closing Date.
"Rule 144" means Rule 144 as promulgated under the Securities Act, or any
successor rule.
"Rule 144A" means Rule 144A as promulgated under the Securities Act, or any
successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the Securities Act, or
any successor rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act.
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"Special Distributions" has the meaning specified in the Capital Securities
Exchange and Registration Rights Agreement.
"Special Interest" has the meaning specified in the Capital Securities
Exchange and Registration Rights Agreement.
"Successor Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Depositor and the Trust of an Opinion
of Counsel to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Capital Securities
under this Trust Agreement, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Depositor on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, will not be, deductible by the Depositor, in whole or in part, for
United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties, assessments or other governmental
charges.
"Transfer Restriction Termination Date" means the first day in which the
Capital Securities (other than Capital Securities acquired by the Trust or any
Affiliate thereof) may be sold pursuant to Rule 144(k).
"Trust" means the Delaware business trust created under the Original Trust
Agreement and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Capital
Securities. The Trust Securities represent undivided beneficial interests in
the Trust Property.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "Aon Capital A," as such name
may be modified from time to time by the Administrative Trustees following
written notice to the Securityholders and the other Trustees, in which name the
Trustees may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The name and address of the Delaware Trustee in the State of Delaware is
The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Department, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o Aon Corporation, 123 North Wacker Drive, Chicago, Illinois 60606.
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SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4. Issuance of the Capital Securities.
(a) The Depositor, on behalf of the Trust and pursuant to the Original
Trust Agreement, executed and delivered the Purchase Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Initial Purchasers Capital Securities
Certificates in an aggregate amount of 800,000 Capital Securities having an
aggregate Liquidation Amount of $800,000,000, against payment by the Initial
Purchasers of $802,188,000 (such amount including accumulated distributions from
January 1, 1997), which amount the Administrative Trustee shall promptly deliver
to the Trust.
(b) Contemporaneously with the exchange of Exchange Capital Securities
pursuant to the Capital Securities Exchange and Registration Rights Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2, and deliver in accordance with any then applicable delivery
instructions, Capital Securities Certificates in an aggregate amount having an
aggregate Liquidation Amount equal to the aggregate Liquidation Amount of the
Private Capital Securities then being exchanged.
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 24,000 Common
Securities having an aggregate Liquidation Amount of $24,000,000 against payment
by the Depositor of $24,065,640 (such amount including accumulated distributions
from January 1, 1997), which amount such Administrative Trustee shall promptly
deliver to the Trust.
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Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe for and purchase from the Depositor Debentures, registered in
the name of the Trust and having an aggregate principal amount equal to
$824,000,000, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $826,253,640 (such sum being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the
first sentence of this Section 2.5).
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities (including the Exchange Capital Securities pursuant to the
Exchange Offer), (b) to use the proceeds from the sale of Trust Securities to
acquire the Private Debentures, (c) to exchange the Private Debentures for the
Exchange Debentures pursuant to the Indenture and (d) to engage in those
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Property Trustee, the Delaware Trustee and the Administrative
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Property Trustee, the Delaware Trustee and
the Administrative Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act and accepting service of process
on the Trust in the State of Delaware.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to
17
the Trustees under this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have the power
and authority to act on behalf of the Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities including any
agreements necessary with respect to such issuance and sale;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Registration Rights Agreements, the Expense
Agreement and the Certificate Depository Agreement and such other agreements as
may be necessary or desirable in connection with the purposes and function of
the Trust;
(C) assisting in the registration of the Exchange Offer and the
Exchange Capital Securities under the Securities Act, and under the state
securities or blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act, all in accordance with the
Capital Securities Exchange and Registration Rights Agreement;
(D) assisting in any listing of the Exchange Capital Securities upon
such securities exchange or exchanges as shall be determined by the Depositor
and the registration of the Exchange Capital Securities under the Exchange Act
and the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and Securities Registrar in
accordance with this Trust Agreement;
(G) executing the Trust Securities in accordance with this Trust
Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
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(I) unless otherwise determined by the Depositor, the Property Trustee
or the Administrative Trustees, or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the Administrative Trustees)
any documents that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made
in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures in accordance with the terms of this Trust Agreement;
(F) the sending of notices of default and other information regarding
the Trust Securities and the Debentures to the Securityholders in accordance
with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the execution of the certificate
of cancellation with the Secretary of State of the State of Delaware;
(I) to exchange the Private Guarantee for the Exchange Guarantee
pursuant to the Guarantee Exchange and Registration Rights Agreement in the
exchange in connection with the Exchange Offer;
19
(J) to exchange the Private Debentures for the Exchange Debentures in
an exchange in connection with the Exchange Offer pursuant to the Debenture
Exchange and Registration Rights Agreement;
(K) after an Event of Default (other than under paragraph (b), (c),
(d) or (e) of the definition of such term if such Event of Default is by or with
respect to the Property Trustee), the taking of any action incidental to the
foregoing as the Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular Securityholder)
and, within 90 days after the occurrence of any Event of Default actually known
to an officer of the Property Trustee assigned to its Corporate Trust Office, to
give notice thereof to the Securityholders; and
(L) except as otherwise provided in this Section 2.7(a)(ii), or in the
Trust Indenture Act (regardless of whether applicable or not), the Property
Trustee shall have none of the duties, liabilities, powers or the authority of
the Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees on behalf of the Trust shall not (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issuance and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in
20
furtherance of the following prior to the date of this Trust Agreement are
hereby ratified and confirmed in all respects):
(i) negotiation of the terms of, and the execution and delivery of, the
Purchase Agreement providing for the sale of the Capital Securities;
(ii) preparation of an application for designation of the Private Capital
Securities for trading in the PORTAL Market at the time of issuance thereof;
(iii) the preparation of an offering memorandum and the preparation and
filing by the Trust with the Commission and the execution on behalf of the Trust
of a registration statement on the appropriate form in relation to the Exchange
Offer, including any amendments thereto and/or a "shelf" registration statement
to register the Private Capital Securities, the Private Guarantee and the
Private Debentures, in each case in accordance with the provisions of the
Registration Rights Agreements;
(iv) the determination of the states, if any, in which to take appropriate
action to qualify or register for sale all or part of the Capital Securities and
the Guarantee and the determination of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and the advice to the Trustees
of actions they must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and filed by the Trust or
on behalf of the Trust, as the Depositor deems necessary or advisable in order
to comply with the applicable laws of any such state; and
(v) any other actions necessary or desirable to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act or fail or cease to be
classified as a grantor trust for United States federal income tax purposes and
so that the Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes. In this connection, the Depositor
and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and any Administrative Trustee determines
in its discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the Holders of the Capital Securities.
21
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) Distributions will be made on the Trust Securities at the rate and on
the dates that payments of interest are made on the Debentures. Distributions
on the Trust Securities shall be cumulative, and will accumulate whether or not
there are funds of
22
the Trust available for the payment of Distributions. Distributions shall
accumulate from January 1, 1997 and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest on the
Debentures pursuant to the Indenture, shall be payable semiannually in arrears
on January 1 and July 1 of each year, commencing on July 1, 1997. If any date on
which a Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), in each case, with the same force and effect as
if made on such date (each date on which Distributions are payable in accordance
with this Section 4.1(a), a "Distribution Date").
(b) Assuming payments of interest on the Debentures are made when due and
assuming compliance by the Depositor and the Trust with their obligations under
the Capital Securities Exchange and Registration Rights Agreement (and before
giving effect to any Additional Distributions, Special Distributions and
Additional Tax Sums, if applicable), Distributions on the Trust Securities shall
be payable at a rate of 8.205% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The amount of
Distributions payable for any period shall include the Additional Distributions,
Special Distributions and Additional Tax Sums, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the 15th day of the month immediately prior to the month in which the relevant
Distribution Date occurs.
SECTION 4.2. Redemption.
(a) On each Debenture Prepayment Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
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(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 15 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot be calculated
prior to the time the notice of redemption is required to be sent, the manner of
calculation thereof;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be redeemed,
the identification and the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due and
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Capital Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then, by 12:00 noon,
New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, with respect to Capital Securities evidenced by one or
more Global Capital Securities Certificates, irrevocably deposit with the
Clearing Agency for such Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
With respect to Capital Securities evidenced by one or more Definitive Capital
Securities Certificates, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay
24
the Redemption Price with respect to such Capital Securities to the Holders
thereof upon surrender of their Definitive Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but without interest,
and such Trust Securities will cease to be outstanding. In the event that any
date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), in each case, with the same force and effect as
if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accumulate,
at the then applicable rate, from the Redemption Date originally established by
the Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the Holders thereof as they appear on the Securities Register for the Trust
Securities on a date to be established as the record date for the distribution
by the Property Trustee, which date shall be not more than 45 days nor less than
15 days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Capital Securities. The particular Capital Securities to be redeemed shall
be selected not less than 15 nor more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Capital Securities not previously
called for redemption, by such method (including, without limitation, on a pro
rata basis or by lot) as the Property Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions
25
(equal to $1,000 or an integral multiple of $1,000 in excess thereof) of the
Liquidation Amount of Capital Securities of a denomination larger than $1,000;
provided, however, that redemption must be pro rata on the basis of the
Outstanding Capital Securities held by each Holder unless the Property Trustee
advised by Opinion of Counsel determines that non-pro rata redemption will not
cause the Trust to fail or cease to be classified as a grantor trust for United
States federal income tax purposes or, if the Trust might fail or cease to be
classified as a grantor trust, will not cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax
purposes. In any such proration the Property Trustee may make such adjustments
so that any Capital Security to be redeemed shall, after such redemption, be in
an authorized denomination, subject to Section 5.4(b). The Property Trustee
shall promptly notify the Securities Registrar in writing of the Capital
Securities selected for redemption and, in the case of any Capital Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Capital Securities shall relate, in
the case of any Capital Securities redeemed or to be redeemed only in part, to
the portion of the Liquidation Amount of Capital Securities that has been or is
to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made, subject to Section 4.2(f), pro rata
among the Common Securities and the Capital Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a Debenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
on, or the Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all Outstanding Capital Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Capital Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions on, or the Redemption Price of,
Capital Securities then due and payable.
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(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated. Until
any such Event of Default under this Trust Agreement with respect to the Capital
Securities has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not the Holder of the Common Securities, and only the Holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions in respect of the Capital Securities shall be
made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Capital Securities
are held by a Clearing Agency, such Distributions shall be made in immediately
available funds to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable Distribution Dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Common Securityholder.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, State and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
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SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums and the written
direction of any of the Administrative Trustees, the Property Trustee shall
promptly pay, solely out of monies on deposit pursuant to this Trust Agreement,
any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or any other taxing
authority.
SECTION 4.7. Reduction for Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Capital Securities) has directly received pursuant to
Section 6.05 of the Indenture or Section 5.14 of this Trust Agreement.
Notwithstanding any such payments, the Depositor shall remain obligated to pay
the principal of or interest on the Debentures and the Depositor shall be
subrogated to the rights of the Holder (and Owner) of such Capital Securities
with respect to payments on the Capital Securities to the extent of any payments
made by the Depositor to such Holder (and Owner) pursuant to either of such
Sections.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
referred to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates; Execution and Delivery
Thereof.
The Capital Securities Certificates shall be issued in denominations of
$1,000 Liquidation Amount and integral multiples of $1,000 in excess thereof
(subject to Section 5.4(b)), and the Common Securities Certificates shall be
issued in denominations of $1,000 Liquidation Amount and integral multiples of
$1,000 in excess thereof. The Trust Securities Certificates shall be
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executed on behalf of the Trust by manual signature of at least one
Administrative Trustee. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
At the Closing Date, the Administrative Trustees, or any of them, shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust and
delivered to or upon the written order of the Depositor, signed by its Chairman
of the Board, any Vice Chairman of the Board, its President, any Vice President,
its Treasurer or any Assistant Treasurer or its Controller, without further
corporate action by the Depositor, in authorized denominations.
SECTION 5.3. Form of Trust Securities Certificates.
(a) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
(b) Capital Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Capital Securities,
substantially in the form of Exhibit B (a "144A Global Security") deposited with
the Clearing Agency or the Property Trustee as custodian for the Clearing
Agency. Transfers of beneficial interests in the 144A Global Security will be
subject to the restrictions on transfer contained in the Private Placement
Legend and the Minimum Transfer Legend. Transfers of beneficial interests in
the 144A Global Security will be made in accordance with the standing
instructions and procedures of the Clearing Agency.
(c) Capital Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent global Capital Securities, substantially in the form of Exhibit C (a
"Regulation S Global Security") deposited with the Clearing Agency or the
Property
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Trustee as custodian for the Clearing Agency. Prior to the expiration of the
Restricted Period, interests in the Regulation S Global Security may only be
held by Clearing Agency Participants in the name of a nominee of Euroclear and
Cedel. After the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Security will not be subject to any
restrictions other than the restrictions contained in the Minimum Transfer
Legend. After the expiration of the Restricted Period, beneficial interests in
the Regulation S Global Security may be held by Clearing Agency Participants
other than in the name of a nominee of Euroclear and Cedel. Transfers of
beneficial interests in the Regulation S Global Security will be made in
accordance with the standing instructions and procedures of the Clearing Agency.
(d) Capital Securities offered and sold to Institutional Accredited
Investors in reliance on Regulation D under the Securities Act shall be issued
initially in the form of one or more Definitive Capital Securities Certificate,
substantially in the form of Exhibit D. Transfers of Definitive Capital
Securities Certificates will be subject to the Private Placement Legend, the
Minimum Transfer Legend and the requirements contained in Section 5.11(d)(1) or
5.11(d)(2).
(e) All Trust Securities shall be dated the date of their execution.
(f) Exchange Capital Securities shall be issued in global form deposited
with the Property Trustee as custodian for the Clearing Agency or in such other
form as the Administrative Trustees may direct and will bear the Minimum
Transfer Legend.
SECTION 5.4. Registration of Transfer and Exchange of Capital Securities
Certificates.
(a) (i) The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register for the purpose of
registering Trust Securities Certificates and transfers and exchanges of Capital
Securities Certificates (the "Securities Register") in which the registrar
designated by the Depositor (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Capital Securities Certificates and Common Securities Certificates and
registration of transfers and exchanges of Capital Securities Certificates,
subject to Section 5.4(b), Section 5.10, Section 5.11 and as may otherwise be
provided herein. The Bank shall be the initial Securities Registrar. The
Securities Registrar shall not be required to register the transfer or exchange
of any Capital Securities (x) during a period beginning at
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the opening of business 15 days before the day of the mailing of a notice of
redemption of Capital Securities and ending at the close of business on the day
of such mailing or (y) that have been selected for redemption in whole or in
part, except the unredeemed portion of any Capital Security redeemed in part.
(ii) Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.8 and
subject to compliance with Section 5.4(b) and Section 5.11, the Administrative
Trustees or any one of them shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Capital Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees. Subject
to Section 5.11, at the option of a Holder, Capital Securities Certificates may
be exchanged for other Capital Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Capital Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8.
(iii) Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by an
Administrative Trustee or the Securities Registrar in accordance with such
Person's customary practice; provided that no exchanges of Private Capital
Securities for Exchange Capital Securities shall occur until a registration
statement shall have been declared effective by the Commission and that any
Capital Securities that are exchanged for Exchange Capital Securities shall be
canceled by the Property Trustee.
(iv) No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates.
(b) The Capital Securities (which includes both the Private Capital
Securities and the Exchange Capital Securities) will be issued, and may be
transferred, only in blocks having a Liquidation
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Amount of not less than $100,000 (100 Capital Securities). Any transfer, sale or
other disposition of Capital Securities in a block having a Liquidation Amount
of less than $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any such transferee shall be deemed not to be the Owner or Holder of
such Capital Securities for any purpose, including but not limited to the
receipt of Distributions on such Capital Securities, and such transferee shall
be deemed to have no interest whatsoever in such Capital Securities. All Capital
Securities (including the Exchange Capital Securities) will bear the Minimum
Transfer Legend.
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection
with the issuance of any new Trust Securities Certificate under this Section,
the Administrative Trustees or the Securities Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the Trust Property, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever (subject to the
record date provisions hereof), and neither the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
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SECTION 5.7. Access to List of Securityholders' Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Depositor shall furnish or cause to be furnished to the Property
Trustee promptly after receipt by an Administrative Trustee of a request
therefor from the Property Trustee in writing, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date. The rights of
Securityholders to communicate with other Securityholders with respect to their
rights under this Trust Agreement or under the Trust Securities, and the
corresponding obligations and rights of the Property Trustee, shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency for Transfers.
The Administrative Trustees shall maintain an office or offices or agency
or agencies where Capital Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate The Bank of New York, 101 Barclay
Street, New York, New York 10286, Attn: Corporate Trust Trustee Administration,
as the principal corporate trust office for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent shall initially be the Bank,
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and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.2, 8.4 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, other than a transfer in connection with a consolidation, conversion or
merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Article Eleven of the Indenture, any attempted
transfer of the Common Securities shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE."
SECTION 5.11. Book-Entry Interests.
(a) So long as the Private Capital Securities are eligible for book-entry
settlement in the Clearing Agency or unless otherwise required by law, all
Private Capital Securities that are so eligible will be represented by one or
more Global Capital
34
Securities Certificates deposited with the Clearing Agency or the Property
Trustee as custodian for the Clearing Agency, by, or on behalf of, the Trust. No
Owner of a beneficial interest in a Global Capital Securities Certificate will
receive a Definitive Capital Securities Certificate representing such Owner's
beneficial interest in the Private Capital Securities, except as provided in
Section 5.11(f) below; provided, however, that the Trust shall issue a
Definitive Capital Securities Certificate upon any transfer of a beneficial
interest in a Global Capital Security to the Company or an Affiliate of the
Company and no Definitive Capital Securities Certificate, or portion thereof, in
respect of which the Company or an Affiliate of the Company held any beneficial
interest shall be resold, retransferred or included in any Global Capital
Security until such Private Capital Security is freely tradeable in accordance
with Rule 144(k) or exchanged for an Exchange Capital Security.
(b) 144A Global Securities shall initially be registered in the name of a
nominee of the Clearing Agency and Regulation S Global Securities shall
initially be registered in the name of a nominee for the Clearing Agency for the
accounts of Euroclear and Cedel.
(c) Transfers of interests in Private Capital Securities between any 144A
Global Security and any Regulation S Global Security will be made in accordance
with this Trust Agreement (including Section 5.11(d)(3)and (4), as applicable)
and in accordance with the standing instructions and procedures of the Clearing
Agency. The Property Trustee shall make appropriate endorsements to reflect
increases or decreases in the amount of such Global Capital Securities.
(d) Unless and until the earlier of (i) the date upon which Private Capital
Securities are exchanged for Exchange Capital Securities in connection with an
effective registration statement pursuant to the Capital Securities Exchange and
Registration Rights Agreement or (ii) the Transfer Restriction Termination Date:
(1) Definitive to Definitive Transfers. Any transfer of a Definitive
Capital Securities Certificate shall be registered on the Securities
Register only upon receipt by the Property Trustee of such Definitive
Capital Securities Certificate accompanied by a duly completed and executed
assignment in the form attached to Exhibit D and, in the case of a transfer
to an Institutional Accredited Investor, upon receipt by the Property
Trustee of a written certificate in the form of Exhibit F (or other
certificates, legal opinions or other information as the Depositor may
reasonably request
35
to confirm that such transfer is exempt from the registration requirements
of the Securities Act);
(2) Definitive into a Global Capital Security. So long as Private
Capital Securities are eligible for book-entry settlement with the Clearing
Agency or unless otherwise required by law, upon any transfer of a
Definitive Capital Securities Certificate to a QIB in accordance with Rule
144A or to a non-U.S. Person in accordance with Regulation S, and upon
receipt of the Definitive Capital Securities Certificate being so
transferred accompanied by a duly completed and executed assignment in the
form attached to Exhibit D, the Property Trustee on behalf of the Trust
shall make an endorsement on any 144A Global Security or any Regulation S
Global Security, as the case may be, to reflect an increase in such Global
Capital Security and the Property Trustee, on behalf of the Trust, shall
cancel such Definitive Capital Securities Certificate.
(3) 144A Global Security into Regulation S Global Security. Any
transfer in accordance with Rule 904 of Regulation S of a beneficial
interest in a 144A Global Security shall be reflected by an increase in the
Regulation S Global Security and a corresponding decrease in the 144A
Global Security only upon receipt by the Trustee of a written certificate
in the form of Exhibit G (or such other certifications, legal opinions or
other information as the Depositor may reasonably require to confirm that
such transfer is being made pursuant to Rule 904); and
(4) Regulation S Global Security into 144A Global Security. Any
transfer of a beneficial interest in a Regulation S Global Security to a
transferee that takes delivery in the form of a beneficial interest in the
144A Global Security shall be reflected by an increase in the 144A Global
Security and a corresponding decrease in the Regulation S Global Security
and, prior to the expiration of the Restricted Period, only upon receipt by
the Property Trustee of a written certificate in the form of Exhibit H (or
such other certifications, legal opinions or other information as the
Depositor may reasonably require).
(e) Any Global Capital Security may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Trust Agreement as may be required by the Clearing
Agency, by any national securities exchange or by the National Association of
Securities Dealers, Inc. in order for the Private Capital
36
Securities to be tradeable on the PORTAL Market or as may be required for the
Private Capital Securities to be tradeable on any other market developed for
trading of securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations of
any securities exchange upon which the Capital Securities may be listed or
traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Capital Securities
are subject.
(f) Notwithstanding any other provisions of this Trust Agreement (other
than the provisions set forth in this Section 5.11(f)), a Global Capital
Security may not be exchanged in whole or in part for Definitive Capital
Securities Certificates, and no transfer of a Global Capital Security may be
registered, in the name of any Person other than the Clearing Agency or a
nominee thereof unless (i) such Clearing Agency (A) has notified the Property
Trustee and the Depositor that it is unwilling or unable to continue as Clearing
Agency for such Global Capital Security or (B) has ceased to be a clearing
agency registered as such under the Exchange Act and no successor Clearing
Agency has been appointed by the Depositor within 90 days after its receipt of
such notice or its becoming aware of such cessation of registration, (ii) there
shall have occurred and be continuing an Event of Default, or any event which
after notice or lapse of time or both would be an Event of Default under the
Trust Agreement, with respect to such Capital Security or (iii) the Depositor
instructs the Property Trustee to exchange such Global Capital Security for
Definitive Capital Securities Certificates.
(g) Unless and until Definitive Capital Securities Certificates have been
issued to Owners pursuant to Section 5.13, the following provisions of this
Section 5.11(g) shall be in full force and effect:
(i) the Securities Registrar and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement relating to
the Global Capital Securities (including the payment of the Liquidation Amount
of and Distributions on the Capital Securities evidenced by Global Capital
Securities Certificates and the giving of instructions or directions to Owners
of Capital Securities evidenced by Global Capital Securities) as the sole Holder
of Capital Securities evidenced by Global Capital Securities and shall have no
obligations to the Owners thereof; and
(ii) the rights of the Owners of the Global Capital Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such
37
Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive Capital
Securities Certificates are issued pursuant to this Section 5.11 or Section
5.13, the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on the Capital
Securities to such Clearing Agency Participants.
(h) The Administrative Trustees shall inform the Property Trustee in
writing of the effective date of any registration statement registering the
Exchange Capital Securities under the Securities Act. Upon the receipt of a
certificate from the Administrative Trustees, the Property Trustee will take
such actions as shall be necessary to effectuate the exchange any of the Private
Capital Securities for Exchange Capital Securities, including but not limited to
the issuance of Exchange Capital Securities in the form requested by the
Administrative Trustees, the entry of decreases in the Regulation S Global
Security and the 144A Global Security or, if applicable, the cancellation of
Definitive Capital Securities Certificates.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Capital
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Procedures for Issuance of Definitive Capital Securities
Certificates.
Upon surrender to the Securities Registrar of the typewritten Capital
Securities Certificate or Certificates representing the Global Capital
Securities Certificates by the Clearing Agency upon occurrence of any of the
events described in Section 5.11(f), accompanied by registration instructions,
the Administrative Trustees, or any one of them, shall execute and the
Securities Registrar shall register the Definitive Capital Securities
Certificates in accordance with the instructions of the Clearing Agency.
Neither the Securities Registrar nor the Trustees shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Capital Securities Certificates, the Trustees shall recognize the Holders of the
Definitive Capital Securities Certificates as Securityholders. The
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Definitive Capital Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights. When issued and
delivered to Securityholders against payment of the purchase price therefor, the
Capital Securities will be fully paid and nonassessable undivided beneficial
interests in the Trust Property. The Holders of the Capital Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the Holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
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(i) the Depositor has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest (including any Additional
Interest, as defined in the Indenture) on all of the Debentures,
(B) the principal of (and premium, if any, on) any Debentures which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
(C) all sums paid or advanced by the Debenture Trustee under the Indenture
and the reasonable compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents and counsel and all
amounts payable to the Debenture Trustee under Section 7.06 of the Indenture;
and
(ii) all Debenture Events of Default, other than the non-payment of the
principal of the Debentures which has become due solely by such acceleration,
have been cured or waived as provided in Article Six of the Indenture.
The holders of a majority in aggregate Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which are represented by Book-Entry Capital Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and
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annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section
6.01(a) or 6.01(b) of the Indenture, any Holder of Capital Securities shall have
the right to institute a proceeding directly against the Depositor, pursuant to
Article Six of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Capital Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders of, or in respect of, the Debentures.
The Holders of a majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to such Capital Securities; provided, however, that the Property Trustee
shall have the right to decline to follow any such direction if the Property
Trustee being advised by Opinion of Counsel determines that the action so
directed may not lawfully be taken, or if the Property Trustee in good faith
shall determine that the proceedings so directed would be illegal or involve it
in personal liability or be unduly prejudicial to the rights of Holders of
Capital Securities not parties to such direction, and provided further that
nothing in the Trust Agreement shall impair the right of the Property Trustee to
take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction by such Securityholders.
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ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Indenture and as otherwise required by law, no Holder of Capital
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where the
consent of the holders of Debentures shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all Outstanding Capital Securities; provided, however,
that where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of Capital
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Capital Securities, except by a subsequent
vote of the Holders of Capital Securities. Subject to Section 8.3, the Property
Trustee shall notify all Holders of the Capital Securities of any notice of
default received from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Trustees shall, at
the expense of the Depositor, obtain an Opinion of Counsel to the effect that
such action shall not cause the Trust to fail or cease to be classified as a
grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to this Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any
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action that would adversely affect in any material respect the powers,
preferences or special rights of the Capital Securities, whether by way of
amendment to this Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Capital Securities as a class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a majority in Liquidation Amount of the Outstanding Capital Securities,
except as otherwise provided in Section 10.2(c). Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Trust to fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Capital Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Capital Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Capital Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Capital
Securityholders to vote on any matter upon the written request of the Capital
Securityholders of record of 25% of the Capital Securities (based upon their
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of Capital Securityholders to
vote on any matters as to which Capital Securityholders are entitled to vote.
Capital Securityholders of record of 50% of the Outstanding Capital
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Capital Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding more than a
majority of the Capital Securities (based upon their Liquidation Amount) held by
the Capital
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Securityholders of record present, either in person or by proxy, at
such meeting shall constitute the action of the Capital Securityholders, unless
this Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent.
Any action that may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
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SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.2) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient. The
ownership of Capital Securities shall be proved by the Securities Register.
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Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Bank, the Property
Trustee and the Delaware Trustee.
The initial Property Trustee and the initial Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that:
(a) the Property Trustee is a New York banking corporation;
46
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation duly organized,
validly existing and in good standing with its principal place of business in
the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context)
47
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to any
governmental authority or agency under any existing Federal law governing the
banking, trust or general powers of the Property Trustee or the Delaware
Trustee, as the case may be, under the laws of the United States, the State of
Delaware or the State of New York; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Any successor Property Trustee and Delaware Trustee shall make similar
representations and warranties as contained in this Section 7.1 for the benefit
of the Depositor and the Securityholders.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at the Closing Date on behalf
of the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
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ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or the requirements of
its supervising or examining authority, then, for the purposes of this Section
8.1(a), the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity. No natural person shall be eligible to act as an Administrative Trustee
hereunder unless such person is an employee or officer of, or affiliated with,
the Depositor.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.2. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act, and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to
49
expend or risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they 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 therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section. Nothing in this Trust Agreement shall be construed
to release an Administrative Trustee or the Delaware Trustee from liability for
his or its own negligence or willful misconduct. To the extent that, at law or
in equity, an Administrative Trustee or the Delaware Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust, to
any other trustee or to the Securityholders, such Administrative Trustee or the
Delaware Trustee shall not be liable to the Trust, to any other trustee or to
any Securityholder for such Trustee's good faith reliance on the provisions of
this Trust Agreement. The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor, the
Trustees and the Securityholders to replace such other duties and liabilities of
the Administrative Trustees and the Delaware Trustee.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.2(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment made
in good faith by an authorized officer of the
50
Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was made;
(ii) the Property Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in Liquidation Amount of
the Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Payment Account
shall be to deal with such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree in writing with the Depositor;
and money held by the Property Trustee need not be segregated from other funds
held by it except in relation to the Payment Account maintained by the Property
Trustee pursuant to Section 3.1 and except to the extent otherwise required by
law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
the default or misconduct of the Administrative Trustees or the Depositor.
SECTION 8.3. Certain Notices.
Within 90 days after the occurrence of any Event of Default actually known
to an officer of the Property Trustee assigned to its Corporate Trust Office,
the Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.8, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative
51
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
SECTION 8.4 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.2:
(a) the Property Trustee may rely and shall be fully protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper party
or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Capital Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
52
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting to take any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection (which
counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it hereunder
in good faith and in reliance thereon and in accordance with such advice or
opinion; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of the Trust or interpretation of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee such adequate
security or indemnity against the costs, expenses (including attorney's fees and
expenses) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Property Trustee;
(h) the Property 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,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys and the Property Trustee shall not be responsible for any misconduct
or negligence on the
53
part of any agent or attorney appointed by it hereunder; provided, however, that
the Property Trustee shall be responsible for its own negligence or recklessness
with respect to the selection of any such agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement; and
(l) the Property Trustee shall not be charged with knowledge of an Event of
Default unless an officer of the Property Trustee assigned to its Corporate
Trust Office obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from the Depositor, any other Trustee or
Securityholders holding a majority or more of Capital Securities (based upon
Liquidation Amount).
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty to act in accordance with such power and authority.
SECTION 8.5. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness.
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The Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
SECTION 8.6. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.7. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time such compensation as shall be
agreed in writing between the Depositor and the Property Trustee for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates (referred
to herein as an "Indemnified Person") from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence or
willful misconduct with respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding which expenses shall be
advanced, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Depositor of (i) a
written affirmation by or on behalf of the Indemnified Person of its or his good
faith belief that it or he has met the standard of conduct set forth in this
Section 8.7 and (ii) an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.7 shall survive the termination of this
Trust Agreement and the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 8.7.
The Depositor and any Trustee (in the case of the Property Trustee, subject
to Section 8.8 hereof) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.8 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to
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the extent and in the manner provided by, and subject to the provisions of, the
Trustee Indenture Act and this Trust Agreement.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of conforming to the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, except in such instances as set forth in the following sentence, by
agreed action of the majority of such Trustees, shall have power to appoint, and
upon the written request of the Administrative Trustees, the Depositor shall for
such purpose join with the Administrative Trustees in the execution, delivery,
and performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-
trustee or separate trustee appointed pursuant to this Section shall either be
(i) a natural person who is at least 21 years of age and a resident of the
United States or (ii) a legal entity with its principal place of business in the
United States that shall act through one or more persons authorized to bind such
entity.
Should any written instrument from the Depositor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee such property, title, right, or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor; provided, however, that, if a Debenture Event of Default shall
have occurred and be continuing, the Property Trustee may execute any such
instrument on behalf of the Depositor as its agent and attorney-in-fact
therefor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
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(a) The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal; provided, however, that, if a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee may execute any such
instruments or agreements on behalf of the Depositor as its agent and attorney-
in-fact therefor. A successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
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SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Securityholders and
the Depositor. Upon giving such notice, a successor Relevant Trustee shall be
appointed in accordance with the second succeeding paragraph. If a successor is
not so appointed within a reasonable time not to exceed thirty days from the
date of the Relevant Trustee's notice of resignation, or if for any reason the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within thirty days after giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, a court of competent jurisdiction in the State of Delaware to
appoint a successor.
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed for cause at any time by the Holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed with or without cause
at such time by Holders of a majority in Liquidation Amount of the Outstanding
Capital Securities. In no event will the Holders of the Capital Securities have
the right to vote to appoint, remove or replace the Administrative Trustees,
which voting rights are vested exclusively in the Depositor, as Holder of the
Common Securities.
After removal by the Holders of a majority in Liquidation Amount of the
Capital Securities, the successor to the Relevant Trustee may be appointed in
accordance with the next paragraph. If a successor is not so appointed within a
reasonable time not to exceed thirty days from the date of the Relevant
Trustee's removal, or if for any reason the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within thirty days of such removal, the Relevant Trustee may
petition, at the expense of the Trust, a court of competent jurisdiction in the
State of Delaware to appoint a successor.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any
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Trustee for any cause, at a time when no Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Capital
Securityholders, by Act of the Securityholders of a majority in Liquidation
Amount of the Capital Securities then Outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, the Common
Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of Section
8.11. If no successor Relevant Trustee shall have been so appointed by the
Common Securityholder or the Capital Securityholders and accepted appointment in
the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.1).
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SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
successor Relevant Trustee shall execute and deliver an amendment hereto wherein
such successor Relevant Trustee shall accept such appointment and which shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust.
Upon the execution and delivery of such amendment, the resignation or
removal of the Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance by any Person, shall become vested with the rights, powers, trusts
and duties of the former Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such former Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
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SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions or
other amounts due on the Trust Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions or such other amounts) shall be entitled and empowered,
to the fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any Distributions and
other amounts owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on 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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee under Section
8.7.
Nothing herein contained shall be deemed to authorize the Property 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 Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 8.14. Reports by Property Trustee.
(a) Not later than July 15 of each year commencing July 15, 1997, the
Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the immediately
preceding December 31 concerning the Property Trustee and its actions under this
Trust Agreement if and as may be required pursuant to Section 313(a) of the
Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to Securityholders such
other reports concerning the Property Trustee and its actions under this Trust
Agreement as would be required pursuant to the Trust Indenture Act were this
Trust Agreement to be qualified under the Trust Indenture Act at the times and
in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with any interdealer quotation system
or self-regulatory organization upon which the Trust Securities are designated
for trading, with the Commission and with the Depositor.
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, such compliance certificate to be delivered annually on or before
September 15 of each year beginning in 1997.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
such conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
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SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
the provisions of Section 8.10 relating to appointment of a successor Trustee
upon resignation of a Trustee.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of this Trust Agreement, as set forth herein.
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ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
January 1, 2028 (the "Expiration Date"), following the distribution of the Trust
Property in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event":
(a) the commencement by the Depositor of a voluntary case under Chapter 7
or Chapter 8 of the federal Bankruptcy Code or any other similar state or
federal law now or hereafter in effect, or the consent by the Depositor to the
entry of a decree or order for relief in an involuntary case under any such law,
or the consent by Aon Corporation to the appointment of a liquidating agent or
committee, conservator or receiver;
(b) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Depositor in an involuntary case
under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, and the continuance of
any such decree or order unstayed and in effect for a period of 90 days, or the
appointment of a liquidating agent or committee, conservator or receiver for Aon
Corporation and the continuance of any such appointment unstayed and in effect
for a period of 90 days;
(c) the dissolution or liquidation of the Depositor;
(d) the written direction to the Property Trustee from the Depositor at any
time to dissolve the Trust and distribute Debentures to Securityholders in
exchange for the Like Amount of the Trust Securities (which direction is
optional and wholly within the discretion of the Depositor), subject to the
Depositor having received an Opinion of Counsel to the effect that such
distribution will not be a taxable event for United States federal income tax
purposes to Holders of Capital Securities;
(e) the redemption of all of the Capital Securities in connection with the
redemption of all the Debentures; and
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(f) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (c), (d) or
(f) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
15 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust Securities
will no longer be deemed to be Outstanding and any Trust Securities Certificates
not surrendered for exchange will be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or if Section
9.4(d) applies receive a Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the
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Debentures to Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45 days nor less than
15 days prior to the Liquidation Date) and, either itself acting as exchange
agent or through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Property Trustee or its agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York Stock Exchange
or on such other exchange, interdealer quotation system or self-regulatory
organization as the Capital Securities are then listed, including PORTAL, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
the Like Amount of Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practicable, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up and
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Trust,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
directly by
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the Trust on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of the Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Capital
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Capital Securities shall have a priority over the Common
Securities.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Article IX.
At the request of the Depositor, with the consent of the Administrative Trustees
and without the consent of the Holders of the Capital Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, however, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with respect to the
Capital Securities or (b) substitutes for the Capital Securities other
securities having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Capital Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Depositor expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed or traded, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Capital Securities are then listed or traded, if
any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Capital Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an opinion of counsel from independent counsel to the
68
Trust experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity will
be required to register as an investment company under the 1940 Act and (viii)
the Depositor or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Capital
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders to Terminate Trust.
Subject to Section 9.2, the death, incapacity, dissolution, liquidation,
termination or bankruptcy of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, dissolve, terminate or annul the Trust, nor entitle the legal
representatives, successors or heirs of such Person or any Securityholder for
such Person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Delaware Trustee, the Administrative Trustees and the Depositor,
without the consent of any Securityholders, (i) to cure any ambiguity, correct
or supplement
69
any provision herein that may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement, (ii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will be classified for United States federal
income tax purposes as a grantor trust at all times that any Trust Securities
are outstanding or to ensure that the Trust will not be required to register as
an investment company under the 1940 Act; provided, however, that any such
action shall not adversely affect in any material respect the interests of any
Securityholder or the Property Trustee or the Delaware Trustee, and any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders or (iii) to provide the Property Trustee with the
authority to execute on behalf of the Administrative Trustees Definitive Capital
Securities Certificates.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment
70
to this Trust Agreement which would cause the Trust to fail or cease to qualify
for the exemption from status of an investment company under the 1940 Act or
fail or cease to be classified as a grantor trust for United States federal
income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates 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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day, with the same force
and effect as though made on the date fixed for such payment, and no interest
shall accrue thereon for the period after such date.
71
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger, conversion or sale involving the Depositor that is permitted under
Article Eleven of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register; and (b) in the case of the Common
Securityholder or the Depositor, to Aon Corporation, 123 North Wacker Drive,
Chicago, Illinois 60606, Attention: Treasurer, facsimile no.: 312/701-3900.
Such notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrative Trustees
shall be given in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee to The Bank of New
York, 101 Barclay Street, New York, New York 10286, Attention: Corporate Trust
Trustee Administration, (b) with respect to the Delaware Trustee, to The Bank of
New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711,
Attention: Corporate Trust Department and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Aon Capital A." Such
notice, demand or other communication to or
72
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to be part of this
Trust Agreement were this Trust Agreement to be qualified under the Trust
Indenture Act and shall, to the extent applicable, be governed by such
provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed under Sections 310 through 318 of the Trust Indenture Act were this
Trust Agreement to be qualified under the Trust Indenture Act, such duties shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
73
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts.
This Trust Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
74
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Trust Agreement of Aon Capital A as of the date first above written.
AON CORPORATION
By: /s/ Harvey N. Medvin
------------------------------
Name: Harvey N. Medvin
Title: Executive Vice President,
Chief Financial
Officer and Treasurer
By: /s/ Raymond I. Skilling
------------------------------
Name: Raymond I. Skilling
Title: Executive Vice President
and Chief Counsel
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Mary La Gumina
------------------------------
Name: Mary La Gumina
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Melissa J. Beneduce
------------------------------
Name: Melissa J. Beneduce
Title: Assistant Vice President
/s/ Harvey Medvin
--------------------------
Harvey Medvin,
as Administrative Trustee
/s/ Michael Conway
--------------------------
Michael Conway,
as Administrative Trustee
/s/ James White
--------------------------
James White,
as Administrative Trustee
75
EXHIBIT A
CERTIFICATE OF TRUST
OF
AON CAPITAL A
THIS Certificate of Trust of Aon Capital A (the "Trust"), dated as of
December 27, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S)3801, et seq.).
- ------- --------
1. Name. The name of the business trust formed hereby is Aon
----
Capital A.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
THE BANK OF NEW YORK
(DELAWARE),
not in its individual capacity
but solely as trustee of the
Trust
______________________________
Name: ___________________
Title: __________________
______________________________
James White,
not in his individual capacity
but solely as trustee of the
Trust
A-1
EXHIBIT B
FORM OF 144A GLOBAL SECURITY
This Capital Security is a 144A Global Security within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository.
This Capital Security is exchangeable for Capital Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Capital
Security (other than a transfer of this Capital Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Capital Security is presented by an authorized representative
of The Depository Trust Company ("DTC"), a New York Corporation (55 Water
Street, New York), to Aon Capital A or its agent for registration of transfer,
exchange or payment, and any Capital Security issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment hereon is made to Cede & Co. or to such other entity as
is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH
HOLDER OF THE CAPITAL SECURITIES EVIDENCED HEREBY, AND EACH PERSON THAT
ACQUIRES A BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, (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) UNDER THE
SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE CAPITAL SECURITIES EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO THE EXPIRATION
OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CAPITAL SECURITIES
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER SUCH CAPITAL
SECURITIES EXCEPT (A) TO AON CORPORATION OR A SUBSIDIARY THEREOF, (B)
PURSUANT TO AN
B-1
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE BANK OF NEW YORK, AS PROPERTY TRUSTEE, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF SUCH CAPITAL SECURITIES (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
AND (G) IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE CAPITAL
SECURITIES EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS PROPERTY
TRUSTEE, SUCH CERTIFICATIONS OR OTHER INFORMATION AS AON CORPORATION 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. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CAPITAL
SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT OR
SUCH EARLIER TIME AS A TRANSFER OF SUCH CAPITAL SECURITIES IS MADE PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER 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 CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION
OF SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND
B-2
SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
CAPITAL SECURITIES.
BY ITS ACCEPTANCE OF THE CAPITAL SECURITIES EVIDENCED HEREBY OR A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, THE HOLDER OF, AND ANY
PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN, SUCH CAPITAL SECURITIES
AGREE TO BE BOUND BY THE PROVISIONS OF THE CAPITAL SECURITIES EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT, THE GUARANTEE EXCHANGE AND REGISTRATION
RIGHTS AGREEMENT AND THE DEBENTURE EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT, EACH DATED AS OF JANUARY 13, 1997 AND RELATING, RESPECTIVELY, TO
THE REGISTRATION UNDER THE SECURITIES ACT OF (1) CAPITAL SECURITIES
EXCHANGEABLE FOR THE CAPITAL SECURITIES EVIDENCED HEREBY AND REGISTRATION
OF THE CAPITAL SECURITIES EVIDENCED HEREBY, (2) THE GUARANTEE BY AON
CORPORATION IN RESPECT OF SUCH CAPITAL SECURITIES AND (3) THE 8.205% JUNIOR
SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE JANUARY 1, 2027 ISSUED BY
AON CORPORATION.
B-3
CERTIFICATE NUMBER R-1 NUMBER OF CAPITAL SECURITIES
Up To 200,000
CUSIP NO. 037388AA3
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
AON CAPITAL A
8.205% CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Aon Capital A, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder")
is the registered owner of the number of Capital Securities of the Trust
specified in Schedule I hereto representing an undivided beneficial interest in
the assets of the Trust and designated the Aon Capital A 8.205% Capital
Securities (liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 13, 1997, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of Capital
Securities as set forth therein. The Holder is entitled to the benefits of the
Capital Securities Guarantee Agreement entered into by Aon Corporation, a
Delaware corporation, and The Bank of New York, as guarantee trustee, dated as
of January 13, 1997 (the "Guarantee"), to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By its acceptance of this certificate representing Capital Securities or a
beneficial interest in such Capital Securities, the owner of, and any person
that acquires a beneficial interest in, such Capital Securities agree to treat
the Debentures described in the Trust Agreement as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
B-4
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate as of this 13th day of January, 1997.
AON CAPITAL A
By:_____________________________
Name: James White
Administrative Trustee
B-5
SCHEDULE I
144A GLOBAL SECURITY
The initial number of Capital Securities evidenced by this 144A Global
Security is 200,000
CHANGES TO NUMBER OF CAPITAL SECURITIES EVIDENCED BY 144A GLOBAL SECURITY
- -------------------------------------------------------------------------------------------------
| | Number of Capital Securities | | |
| | by which this 144A Global | Remaining Capital | |
| | Security is to be Reduced | Securities Represented | |
| | or Increased, and Reason for | by this 144A Global | |
| Date | Reduction or Increase | Security | Notation Made by |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
|----------|-------------------------------|----------------------------|------------------------|
| | | | |
| | | | |
| | | | |
- -------------------------------------------------------------------------------------------------
B-6
EXHIBIT C
FORM OF REGULATION S GLOBAL SECURITY
This Capital Security is a Regulation S Global Security within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company (the "Depository") or a nominee of the Depository.
This Capital Security is exchangeable for Capital Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Capital
Security (other than a transfer of this Capital Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Capital Security is presented by an authorized representative
of The Depository Trust Company ("DTC"), a New York Corporation (55 Water
Street, New York), to Aon Capital A or its agent for registration of transfer,
exchange or payment, and any Capital Security issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment hereon is made to Cede & Co. or to such other entity as
is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION
OF SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
BY ITS ACCEPTANCE OF THE CAPITAL SECURITIES EVIDENCED HEREBY OR A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, THE HOLDER OF, AND ANY
PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN, SUCH CAPITAL SECURITIES
AGREE TO BE BOUND BY THE PROVISIONS OF THE CAPITAL SECURITIES EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT, THE GUARANTEE EXCHANGE AND REGISTRATION
RIGHTS AGREEMENT AND THE DEBENTURE EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT, EACH DATED AS OF JANUARY 13, 1997 AND
C-1
RELATING, RESPECTIVELY, TO THE REGISTRATION UNDER THE SECURITIES ACT OF (1)
CAPITAL SECURITIES EXCHANGEABLE FOR THE CAPITAL SECURITIES EVIDENCED HEREBY
AND REGISTRATION OF THE CAPITAL SECURITIES EVIDENCED HEREBY, (2) THE
GUARANTEE BY AON CORPORATION IN RESPECT OF SUCH CAPITAL SECURITIES AND (3)
THE 8.205% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE JANUARY
1, 2027 ISSUED BY AON CORPORATION.
C-2
CERTIFICATE NUMBER S-1 NUMBER OF CAPITAL SECURITIES
Up To 200,000
CUSIP NO. U00199AA4
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
AON CAPITAL A
8.205% CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Aon Capital A, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder")
is the registered owner of the number of Capital Securities of the Trust
specified in Schedule I hereto representing an undivided beneficial interest in
the assets of the Trust and designated the Aon Capital A 8.205% Capital
Securities (liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 13, 1997, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of Capital
Securities as set forth therein. The Holder is entitled to the benefits of the
Capital Securities Guarantee Agreement entered into by Aon Corporation, a
Delaware corporation, and The Bank of New York, as guarantee trustee, dated as
of January 13, 1997 (the "Guarantee"), to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By its acceptance of this certificate representing Capital Securities or a
beneficial interest in such Capital Securities, the owner of, and any person
that acquires a beneficial interest in, such Capital Securities agree to treat
the Debentures described in the Trust Agreement as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
C-3
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate as of this 13th day of January, 1997.
AON CAPITAL A
By:____________________________
Name: James White
Administrative Trustee
C-4
SCHEDULE I
REGULATION S GLOBAL SECURITY
The initial number of Capital Securities evidenced by this
Regulation S Global Security is zero (0).
CHANGES TO NUMBER OF CAPITAL SECURITIES EVIDENCED BY REGULATION S GLOBAL
SECURITY
- --------------------------------------------------------------------------------
| | Number of Capital Securities | | |
| | by which this Regulation S | | |
| | Global Security is to be | Remaining Capital | |
| | Reduced or Increased, and |Securities Represented | |
| | Reason for Reduction or | by this Regulation S | |
| Date| Increase | Global Security |Notation Made by |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
| | | | |
|-----|------------------------------|-----------------------|-----------------|
C-5
EXHIBIT D
FORM OF DEFINITIVE CAPITAL SECURITY CERTIFICATE
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH
HOLDER OF THE CAPITAL SECURITIES EVIDENCED HEREBY, AND EACH PERSON THAT
ACQUIRES A BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, (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) UNDER THE
SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE CAPITAL SECURITIES EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO THE EXPIRATION
OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CAPITAL SECURITIES
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER SUCH CAPITAL
SECURITIES EXCEPT (A) TO AON CORPORATION OR A SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS PROPERTY TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF SUCH CAPITAL SECURITIES (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) AND (G) IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE CAPITAL SECURITIES EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S.
PERSON, THE
D-1
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS
PROPERTY TRUSTEE, SUCH CERTIFICATIONS OR OTHER INFORMATION AS AON
CORPORATION 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. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT OR SUCH EARLIER TIME AS A TRANSFER OF SUCH CAPITAL
SECURITIES IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
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 CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION
OF SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
BY ITS ACCEPTANCE OF THE CAPITAL SECURITIES EVIDENCED HEREBY OR A
BENEFICIAL INTEREST IN SUCH CAPITAL SECURITIES, THE HOLDER OF, AND ANY
PERSON THAT ACQUIRES A BENEFICIAL INTEREST IN, SUCH CAPITAL SECURITIES
AGREE TO BE BOUND BY THE PROVISIONS OF THE CAPITAL SECURITIES EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT, THE GUARANTEE EXCHANGE AND REGISTRATION
RIGHTS AGREEMENT AND THE DEBENTURE EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT, EACH DATED AS OF JANUARY 13, 1997 AND RELATING, RESPECTIVELY, TO
THE REGISTRATION UNDER THE SECURITIES ACT OF (1) CAPITAL SECURITIES
EXCHANGEABLE FOR THE CAPITAL SECURITIES EVIDENCED HEREBY AND REGISTRATION
OF THE CAPITAL SECURITIES EVIDENCED HEREBY, (2) THE GUARANTEE BY AON
CORPORATION IN RESPECT OF SUCH CAPITAL SECURITIES AND (3) THE 8.205% JUNIOR
SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE JANUARY 1, 2027 ISSUED BY
AON CORPORATION.
D-2
CERTIFICATE NUMBER AI-1 NUMBER OF CAPITAL SECURITIES
5,000
CUSIP NO. 037388AB1
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
AON CAPITAL A
8.205% CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Aon Capital A, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Morgan Stanley & Co.
Incorporated (the "Holder") is the registered owner of Five Thousand (5,000)
Capital Securities of the Trust representing an undivided beneficial interest in
the assets of the Trust and designated the Aon Capital A 8.205% Capital
Securities (liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 13, 1997, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of Capital
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Aon Corporation, a Delaware corporation, and
The Bank of New York, as guarantee trustee, dated as of January 13, 1997 (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By its acceptance of this certificate representing Capital Securities or a
beneficial interest in such Capital Securities, the owner of, and any person
that acquires a beneficial interest in, such Capital Securities agree to treat
the Debentures described in the Trust Agreement as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
D-3
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate as of this 13th day of January, 1997.
AON CAPITAL A
By: _________________________
Name: James White
Administrative Trustee
D-4
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and transfer(s)
unto _________________________________________________________________________
______________________________________________________________________________
(Please insert social security or other
taxpayer identification number of assignee.)
the within security and hereby irrevocably constitutes and appoints
_________________________ attorney to transfer the said security on the books of
the Trust, with full power of substitution in the premises.
In connection with any transfer of the within security occurring prior to such
date as restrictions on the transfer of such security imposed by the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
thereunder shall be terminated in accordance with the Trust Agreement, the
undersigned confirms that such security is being transferred:
[_] To Aon Corporation or a subsidiary thereof; or
[_] Pursuant to an effective registration statement under the Securities
Act; or
[_] Pursuant to and in compliance with Rule 144A under the Securities Act;
or
[_] To an Institutional Accredited Investor pursuant to and in compliance
with the Securities Act; or
[_] Pursuant to and in compliance with Regulation S under the Securities;
or
[_] Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended;
D-5
and unless the box below is checked, the undersigned confirms that such security
is not being transferred to an "affiliate" of the Trust as defined in Rule 144
under the Securities Act (an "Affiliate"):
[_] The transferee is an Affiliate of the Trust.
Dated: ___________________
___________________
___________________
Signature(s)
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a major stock
exchange.
___________________________
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular, without
alteration or enlargement or any change whatever.
D-6
EXHIBIT E
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER C-1 NUMBER OF COMMON SECURITIES 24,000
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
AON CAPITAL A
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Aon Capital A, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Aon Corporation, a
Delaware corporation, (the "Holder") is the registered owner of Twenty-Four
Thousand (24,000) Common Securities of the Trust representing an undivided
beneficial interest in the assets of the Trust and designated the Common
Securities (liquidation amount $1,000 per Common Security) (the "Common
Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of January 13, 1997, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common Securities as
set forth therein. The Trust will furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By its acceptance of this certificate representing Common Securities or a
beneficial interest in such Common Securities, the owner of, and any person that
acquires a beneficial interest in, such Common Securities agree to treat the
Debentures described in the Trust Agreement as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in such indebtedness for
tax purposes.
E-1
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate as of this 13th day of January, 1997.
AON CAPITAL A
By:________________________
Name: James White
Administrative Trustee
E-2
EXHIBIT F
FORM OF LETTER TO BE DELIVERED
BY INSTITUTIONAL ACCREDITED INVESTORS
Aon Corporation
123 North Wacker Drive
Chicago, IL 60606
Aon Capital A
123 North Wacker Drive
Chicago, IL 60606
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
We understand that the 8.205% Capital Securities, liquidation preference
$1,000 per Capital Security (the "Capital Securities"), of Aon Capital A, a
Delaware business trust (including the guarantee (the "Guarantee") of Aon
Corporation ("Aon") executed in connection therewith), and the 8.205% Junior
Subordinated Deferrable Interest Debentures of Aon (the "Debentures," and,
together with the Capital Securities and the Guarantee, the "Securities") are
being offered in a transaction not involving any public offering within the
United States within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and that the Securities have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Capital Securities, that if, prior to the expiration of
the holding period applicable to sales of any Security under Rule 144(k) under
the Securities Act, we decide to offer, resell or otherwise transfer such
Security, such Security may be offered, resold or otherwise transferred only (i)
to Aon or a subsidiary thereof, (ii) pursuant to an effective registration
statement under the Securities Act, (iii) inside the United States to a person
who is a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in compliance with Rule 144A, (iv) inside the United States to
an Institutional Accredited Investor (as defined below) that, prior to such
transfer, furnishes to the Property Trustee a signed letter in the form hereof,
and such other opinions and certifications that the Property Trustee may
request, (v) outside the United States in compliance with Rule 904 under the
Securities Act or (vi) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available) and (vii) in each case, in
accordance with any applicable securities laws of the States of the United
States or any other applicable jurisdiction and in accordance with the legends
set forth on the Capital Securities and the Debentures. We further agree to
provide any person purchasing
F-1
any of the Capital Securities or Debentures from us a notice advising such
purchaser that resales of such securities are restricted as stated herein. We
understand that any Capital Securities will bear a legend reflecting the
substance of this paragraph.
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act or an entity in which all of
the equity owners are accredited investors within the meaning of Rule
501(a)(1), (2) and (3) under the Securities Act (an "Institutional
Accredited Investor");
(ii) (A) any purchase of Capital Securities by us will be for our
own account or for the account of one or more other Institutional
Accredited Investors or as fiduciary for the account of one or more trusts,
each of which is an "accredited investor" within the meaning of Rule
501(a)(7) under the Securities Act and for each of which we exercise sole
investment discretion or (B) we are a "bank," within the meaning of Section
3(a)(2) of the Securities Act, or a "savings and loan association" or other
institution described in Section 3(a)(5)(A) of the Securities Act that is
acquiring Capital Securities as fiduciary for the account of one or more
institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any Capital Securities, we will
acquire Capital Securities having a minimum purchase price of not less than
$100,000 for our own account or for any separate account for which we are
acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
an investment in the Capital Securities;
(v) we are not acquiring Capital Securities with a view to resale
or distribution thereof or with any present intention of offering or
selling Capital Securities, except as permitted above; provided that the
disposition of our property and property of any accounts for which we are
acting as fiduciary shall remain at all times within our control; and
(vi) we have had access to such financial and other information and
have been afforded the opportunity to ask such questions of representatives
of Aon and receive answers thereto, as we deem necessary in connection with
our decision to purchase Capital Securities.
F-2
We acknowledge that you and others will rely upon our confirmations,
acknowledgments and agreements set forth herein, and we agree to notify you
promptly in writing if any of our representations or warranties herein ceases to
be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
(Name of Purchaser)
____________________________
Name:
Title:
Address:
F-3
EXHIBIT G
FORM OF TRANSFER CERTIFICATE--
144A GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Aon Capital A
Private Capital Securities
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of January 13, 1997 (the "Trust Agreement"), among Aon Corporation, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of Aon Capital A.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by a 144A Global Security (CUSIP No. 037388AA3) and held with the
Clearing Agency in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in such
Private Capital Securities to a Person that will take delivery thereof in a
transaction effected pursuant to and in accordance with Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor does hereby further certify that:
The offer of such Private Capital Securities was not made to a person in
the United States;
(A) either:
(i) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States, or
(ii) the transaction was executed in, or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was pre-arranged with a buyer in
the United States;
(B) no directed selling efforts have been made in contravention
of the requirements of 904(b) of Regulation S, as applicable;
G-1
(C) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(D) we have advised the transferee of the transfer restrictions
applicable to such Private Capital Securities.
You, the Trust and the Initial Purchasers 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 proceeding or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate and not otherwise defined herein or in the Trust Agreement have the
meanings set forth in Regulation S under the Securities Act.
Dated:__________________
[Insert Name of Transferor]
By:_____________________
Name:
Title:
(If the registered owner is a corporation,
partnership or fiduciary, the title of the
Person signing on behalf of such registered
owner must be stated.)
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
REGULATION S GLOBAL SECURITY TO 144A GLOBAL SECURITY
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Aon Capital A
Private Capital Securities
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of January 13, 1997 (the "Trust Agreement"), among Aon Corporation, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of Aon Capital A.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by a Regulation S Global Security (CUSIP No. U00199AA4) and held
with the Clearing Agency indirectly in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in such Private Capital Securities to a Person that will take delivery
thereof in a transaction effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor does hereby certify that (i) the
Transferor's interest in such Private Capital Securities is being transferred in
accordance with the transfer restrictions set forth in the Trust Agreement; and
(ii) the transferee is a person who the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A, in
accordance with all applicable securities laws of the states of the United
States and other jurisdictions.
H-1
You, the Trust and the Initial Purchasers 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 proceeding or official
inquiry with respect to the matters covered hereby.
Dated :__________________________
[Insert Name of Transferor]
By:__________________________
Name:
Title:
(If the registered owner is a corporation,
partnership or fiduciary, the title of the
Person signing on behalf of such registered
owner must be stated.)
H-2
EXHIBIT I
FORM OF PRIVATE PLACEMENT LEGEND
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH HOLDER OF THE CAPITAL
SECURITIES EVIDENCED HEREBY, AND EACH PERSON THAT ACQUIRES A BENEFICIAL INTEREST
IN SUCH CAPITAL SECURITIES, (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) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE CAPITAL
SECURITIES EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CAPITAL SECURITIES EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), OFFER, RESELL OR OTHERWISE TRANSFER SUCH CAPITAL
SECURITIES EXCEPT (A) TO AON CORPORATION OR A SUBSIDIARY THEREOF, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW
YORK, AS PROPERTY TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF SUCH CAPITAL
SECURITIES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (E)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) AND (G) IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE CAPITAL SECURITIES EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS
PROPERTY TRUSTEE, SUCH CERTIFICATIONS OR OTHER INFORMATION AS AON CORPORATION
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. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CAPITAL SECURITIES
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT OR SUCH EARLIER TIME
AS A TRANSFER OF SUCH CAPITAL SECURITIES IS MADE
I-1
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER 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.
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EXHIBIT J
FORM OF MINIMUM TRANSFER LEGEND
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100
CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION OF SUCH CAPITAL
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN SUCH CAPITAL SECURITIES.
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[IF CAPITAL SECURITY IS AN EXCHANGE CAPITAL SECURITY, INSERT -
FORM OF ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Capital Security
to:__________________________________________________________ (Insert assignee's
social security or tax identification number)
___________________________
(Insert address and zip code of assignee)
and irrevocably appoints _____________________________ agent to transfer this
Capital Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
Signature(s):
________________________________________________
________________________________________________
(Sign exactly as your name appears on the other
side of this Capital Security Certificate)
NOTICE: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17AD-15.