EXHIBIT 4(a)
EXECUTION COPY
AON CORPORATION,
ISSUER
AND
THE BANK OF NEW YORK,
TRUSTEE
---------------------
INDENTURE
---------------------
DATED AS OF DECEMBER 16, 2002
7.375% SENIOR NOTES DUE 2012
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.......................................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.................................... 5
SECTION 1.03. Rules of Construction................................................................ 6
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating...................................................................... 6
SECTION 2.02. Restrictive Legends.................................................................. 7
SECTION 2.03. Execution, Authentication and Denominations.......................................... 8
SECTION 2.04. Registrar and Paying Agent........................................................... 9
SECTION 2.05. Paying Agent to Hold Money in Trust.................................................. 9
SECTION 2.06. Transfer and Exchange............................................................... 10
SECTION 2.07. Book-Entry Provisions for Global Notes.............................................. 10
SECTION 2.08. Special Transfer Provisions......................................................... 11
SECTION 2.09. Replacement Notes................................................................... 13
SECTION 2.10. Outstanding Notes................................................................... 13
SECTION 2.11. Temporary Notes..................................................................... 14
SECTION 2.12. Cancellation........................................................................ 14
SECTION 2.13. CUSIP Numbers....................................................................... 14
SECTION 2.14. Issuance of Additional Notes........................................................ 14
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption................................................................. 15
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.................................................................... 15
SECTION 4.02. Maintenance of Office or Agency..................................................... 15
SECTION 4.03. Limitation on Liens on Common Stock of Significant Subsidiary....................... 15
SECTION 4.04. Compliance Certificates............................................................. 16
SECTION 4.05. Waiver of Certain Covenants......................................................... 16
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc......................................................... 16
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SECTION 5.02. Successor Substituted............................................................... 17
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default................................................................... 17
SECTION 6.02. Acceleration........................................................................ 18
SECTION 6.03. Other Remedies...................................................................... 19
SECTION 6.04. Waiver of Past Defaults............................................................. 19
SECTION 6.05. Control by Majority................................................................. 19
SECTION 6.06. Payment of Securities on Default; Suit Therefor..................................... 19
SECTION 6.07. Limitation on Suits................................................................. 20
SECTION 6.08. Rights of Holders to Receive Payment................................................ 20
SECTION 6.09. Collection Suit by Trustee.......................................................... 20
SECTION 6.10. Trustee May File Proofs of Claim.................................................... 21
SECTION 6.11. Priorities.......................................................................... 21
SECTION 6.12. Undertaking for Costs............................................................... 21
SECTION 6.13. Restoration of Rights and Remedies.................................................. 22
SECTION 6.14. Rights and Remedies Cumulative...................................................... 22
SECTION 6.15. Delay or Omission Not Waiver........................................................ 22
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General............................................................................. 22
SECTION 7.02. Certain Rights of Trustee........................................................... 22
SECTION 7.03. Individual Rights of Trustee........................................................ 24
SECTION 7.04. Trustee's Disclaimer................................................................ 24
SECTION 7.05. Notice of Default................................................................... 24
SECTION 7.06. Reports by Trustee to Holders....................................................... 24
SECTION 7.07. Compensation and Indemnity.......................................................... 24
SECTION 7.08. Replacement of Trustee.............................................................. 25
SECTION 7.09. Successor Trustee by Merger, Etc.................................................... 26
SECTION 7.10. Eligibility......................................................................... 26
SECTION 7.11. Money Held in Trust................................................................. 26
ARTICLE EIGHT
DISCHARGE OF
INDENTURE
SECTION 8.01. Termination of Company's Obligations................................................ 27
SECTION 8.02. Defeasance and Discharge of
Indenture............................................... 27
SECTION 8.03. Defeasance of Certain Obligations................................................... 29
SECTION 8.04. Application of Trust Money.......................................................... 30
SECTION 8.05. Repayment to Company................................................................ 30
SECTION 8.06. Reinstatement....................................................................... 30
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.......................................................... 30
SECTION 9.02. With Consent of Holders............................................................. 31
SECTION 9.03. Action by Holders; Record Dates..................................................... 32
SECTION 9.04. Revocation and Effect of Consent.................................................... 33
SECTION 9.05. Notation on or Exchange of Notes.................................................... 33
SECTION 9.06. Trustee to Sign Amendments, Etc..................................................... 33
SECTION 9.07. Conformity with Trust
Indenture Act................................................. 33
ARTICLE TEN
MEETINGS OF THE HOLDERS
SECTION 10.01. Purposes of Meetings................................................................ 34
SECTION 10.02. Call of Meetings by Trustee......................................................... 34
SECTION 10.03. Call of Meetings by Company or Holders.............................................. 34
SECTION 10.04. Qualification for Voting............................................................ 35
SECTION 10.05. Regulations......................................................................... 35
SECTION 10.06. Voting.............................................................................. 35
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust
Indenture Act of 1939......................................................... 36
SECTION 11.02. Notices............................................................................. 36
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.................................. 37
SECTION 11.04. Statements Required in Certificate or Opinion....................................... 37
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar......................................... 38
SECTION 11.06. Payment Date Other Than a Business Day.............................................. 38
SECTION 11.07. Governing Law....................................................................... 38
SECTION 11.08. No Adverse Interpretation of Other Agreements....................................... 38
SECTION 11.09. No Recourse Against Others.......................................................... 38
SECTION 11.10. Successors.......................................................................... 38
SECTION 11.11. Duplicate Originals................................................................. 38
SECTION 11.12. Separability........................................................................ 38
SECTION 11.13. Table of Contents, Headings, Etc.................................................... 39
SECTION 11.14. Counterparts........................................................................ 39
EXHIBIT A Form of Note........................................................................A-1
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INDENTURE, dated as of December 16, 2002, between
Aon CORPORATION, a
Delaware corporation (the "COMPANY"), and THE BANK OF
NEW YORK, a
New York
banking corporation, as trustee (the "TRUSTEE").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Company's 7.375% Senior Notes due
2012 (the "NOTES") issuable as provided in this
Indenture. All things necessary
to make this
Indenture a valid agreement of the Company, in accordance with its
terms, have been done, and the Company has done all things necessary to make the
Notes, when executed by the Company and authenticated and delivered by the
Trustee hereunder and duly issued by the Company, valid obligations of the
Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act of 1939, as amended, that are required to be a part of
and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"AFFILIATE" has the meaning provided in Rule 405 of the Securities Act.
"AGENT" means any Registrar, Co-Registrar, Paying Agent or authenticating
agent.
"AGENT MEMBERS" has the meaning provided in Section 2.07(a).
"AUTHORIZED NEWSPAPER" means a newspaper in an official language of the
country of publication of general circulation in the place in connection with
which the term is used. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
committee of such Board of Directors duly authorized to act under this
Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means any day except a Saturday, Sunday or legal holiday on
which banking institutions in The City of
New York are authorized or required by
law, regulation or executive order to close.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"COMPANY" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"COMPANY ORDER" means a written request or order signed in the name of the
Company (i) by its Chairman, a Vice Chairman, its President or a Vice President
and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee; PROVIDED, HOWEVER, that such written
request or order may be signed by any two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors
listed in such clause (i) and one of the officers listed in clause (ii) above.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Department.
"DEFAULT" means an event or condition the occurrence of which is, or with
the lapse of time or giving of notice or both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees, and their
respective successors.
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"EXCHANGE NOTES" means any securities of the Company containing terms
identical to the Notes (except that such Exchange Notes shall be registered
under the Securities Act) that are issued and exchanged for the Notes pursuant
to the Registration Rights Agreement and this Indenture.
"GLOBAL NOTES" has the meaning provided in Section 2.01.
"HOLDER" or "NOTEHOLDER" means the registered holder of any Note.
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"INDENTURE" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"INTEREST PAYMENT DATE" means June 14 and December 14 of each year,
commencing June 14, 2003.
"MATURITY DATE" means December 14, 2012.
"NOTES" means any of the securities, as defined in the first paragraph of
the recitals hereof, that are authenticated and delivered under this Indenture.
For all purposes of this Indenture, the term "Notes" shall include the Notes
initially issued on the Closing Date, any Exchange Notes to be issued and
exchanged for any Notes pursuant to the Registration Rights Agreement and this
Indenture and any other Notes issued after the Closing Date under this
Indenture. For purposes of this Indenture, all Notes shall vote together as one
series of Notes under this Indenture.
"OFFICER" means, with respect to the Company, (i) the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or the
Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by one Officer listed in
clause (i) of the definition thereof and one Officer listed in clause (ii) of
the definition thereof or two officers listed in clause (i) of the definition
thereof. Each Officers' Certificate (other than certificates provided pursuant
to TIA Section 314(a)(4)) shall include the statements provided for in TIA
Section 314(e).
"OPINION OF COUNSEL" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company, that meets the requirements of
Section 11.04 hereof. Each such Opinion of Counsel shall include the statements
provided for in TIA Section 314(e).
"PAYING AGENT" has the meaning provided in Section 2.04, except that, for
the purposes of Article Eight, the Paying Agent shall not be the Company or a
Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PHYSICAL NOTES" means the Notes issued in the form of permanent
certificated Notes in registered form.
"PRINCIPAL" of a debt security, including the Notes, means the principal
amount due on the Stated Maturity as shown on such debt security.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Notes in the form set forth in Section 2.02.
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"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECORD DATE" for the interest payable on any Interest Payment Date means
the fifteenth calendar day (whether or not a Business Day) immediately preceding
such Interest Payment Date.
"REGISTRAR" has the meaning provided in Section 2.04.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of December 16, 2002, between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., Credit Suisse First Boston Corporation, BNY Capital Markets, Inc. and
Wachovia Securities, Inc.
"REGISTRATION STATEMENT" means the Registration Statement as defined and
described in the Registration Rights Agreement.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the corporate trust department of the trustee, including any vice
president, any assistant vice president, any assistant treasurer, any trust
officer or assistant trust officer or any other officer of the Trustee in its
corporate trust department customarily performing functions similar to those
performed by any of the above-designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"RULE 144" means Rule 144 under the Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933.
"SECURITY REGISTER" has the meaning provided in Section 2.04.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means, with respect to the Company, a "significant
subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act.
"STATED MATURITY" means the date specified in the Notes as the fixed date
on which the principal amount thereof or any installment of interest thereon is
due and payable.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation of
which at least a majority in interest of the outstanding capital stock having by
the terms thereof voting power under ordinary circumstances to elect directors
of such corporation, irrespective of whether or not at the time stock of any
other class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by such Person, or by one or more other
corporations a majority in interest of such stock of which is similarly owned or
controlled or by such Person and one or more other corporations a majority in
interest of such stock of which is similarly owned or controlled, or (ii)
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any other Person (other than a corporation) in which such Person, directly or
indirectly, at the date of determination thereof, has at least a majority equity
ownership interest.
"TIA" or "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb), as in effect on the date this Indenture was
executed, except as provided in Section 9.07.
"TRUSTEE" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"UNITED STATES BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, as
amended and as codified in Title 11 of the United States Code, as amended from
time to time hereafter, or any successor federal bankruptcy law.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
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All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with accounting principles generally accepted
in the United States in effect on the date of this Indenture;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(vii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING. The Notes and the Trustee's certificate of
authentication shall be substantially in the form annexed hereto as Exhibit A
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange agreements to which the
Company is subject or usage. The Company shall approve the form of the Notes and
any notation, legend or endorsement on the Notes. Each Note shall be dated the
date of its authentication.
The terms and provisions contained in the form of the Notes annexed hereto
as Exhibit A shall constitute, and are hereby expressly made, a part of this
Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "GLOBAL NOTES"),
registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the
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Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or its nominee,
in accordance with the instructions given by the Holder thereof, as hereinafter
provided.
The definitive Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. RESTRICTIVE LEGENDS. Unless and until a Note is exchanged for
an Exchange Note or sold in connection with an effective Registration Statement
pursuant to the Registration Rights Agreement, the Global Notes and any Physical
Notes issued in exchange therefor shall bear the legend set forth below on the
face thereof.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL
NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED
TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY AS IS REQUESTED BY AN
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AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS
REGISTERED IN THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFERS OF THIS GLOBAL
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.08 OF THE INDENTURE.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DENOMINATIONS. Subject to
Article Four and applicable law, the aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited. The Notes
shall be executed by two Officers of the Company. The signature of these
Officers on the Notes may be by facsimile or manual signature in the name and on
behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this Indenture,
the Trustee or an authenticating agent shall upon receipt of a Company Order
authenticate for original issue Notes in the aggregate principal amount
specified in such Company Order; PROVIDED that the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company in
connection with such authentication of Notes. Such Company Order shall specify
the amount of Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated and, in case of an issuance of Notes pursuant to
Section 2.14, shall certify that such issuance is in compliance with Article
Four.
The Trustee may appoint an authenticating agent to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
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The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 in principal amount and any integral multiple
thereof.
SECTION 2.04. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "REGISTRAR"), an office or agency where Notes may be presented
for payment (the "PAYING AGENT") and an office or agency where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served, which shall be in the Borough of Manhattan, The City of
New York. The
Company shall cause the Registrar to keep a register of the Notes and of their
transfer and exchange (the "SECURITY REGISTER"). The Security Register shall be
in written form or any other form capable of being converted into written form
within a reasonable time. The Company may have one or more Co-Registrars and one
or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall give prompt written
notice to the Trustee of the name and address of any such Agent and any change
in the address of such Agent. If the Company fails to maintain a Registrar,
Paying Agent and/or agent for service of notices and demands, the Trustee shall
act as such Registrar, Paying Agent and/or agent for service of notices and
demands. The Company may remove any Agent upon written notice to such Agent and
the Trustee; PROVIDED that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company, any Subsidiary of the
Company or any Affiliate of any of them may act as Paying Agent, Registrar or
Co-Registrar, and/or agent for service of notice and demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. The Trustee
shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise
comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee as of each Record Date and at such other times as
the Trustee may reasonably request the names and addresses of Holders as they
appear in the Security Register, including the aggregate principal amount of
Notes held by each Holder.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Not later than 10:00
a.m. (
New York City time) on each due date of any principal of or interest on
any Notes, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal and interest so becoming due.
The Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of and interest on the Notes (whether such money has been paid to it
by the Company or any other obligor on the Notes), and such Paying Agent shall
promptly notify the Trustee of any default by the Company (or any other obligor
on the Notes) in making any such payment. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of any
payment
9
default, upon written request to a Paying Agent, require such Paying Agent to
pay all money held by it to the Trustee and to account for any funds disbursed.
Upon doing so, the Paying Agent shall have no further liability for the money so
paid over to the Trustee. If the Company or any Subsidiary of the Company or any
Affiliate of any of them acts as Paying Agent, it will, on or before each due
date of any principal of or interest on the Notes, segregate and hold in a
separate trust fund for the benefit of the Holders a sum of money sufficient to
pay such principal or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee of its action or failure to act.
SECTION 2.06. TRANSFER AND EXCHANGE. The Notes are issuable only in
registered form. A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee and any agent of the Company shall treat the
person in whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry. When Notes are presented
to the Registrar or a Co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations (including an exchange of Notes for Exchange Notes), the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including that such Notes are duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Trustee and Registrar duly executed by the Holder thereof or by an
attorney who is authorized in writing to act on behalf of the Holder); PROVIDED
that no exchanges of Notes for Exchange Notes shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Notes that are exchanged for Exchange Notes shall be cancelled by the Trustee.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange of the Notes,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or other similar governmental charge payable upon
exchanges pursuant to Section 2.11 or 9.05).
SECTION 2.07. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes initially shall (i) be registered in the name of the
Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 2.02.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary, or
10
the Trustee as its custodian, or under such Global Note, and the Depositary may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in Global Notes may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.08. In addition, Physical Notes shall be transferred
to all beneficial owners in exchange for their beneficial interests in the
Global Notes if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Notes and a successor depositary
is not appointed by the Company within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing and the Registrar has received a request
from the Depositary or (iii) in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.08.
(c) In connection with any transfer of a portion of the beneficial
interests in a Global Note to beneficial owners pursuant to paragraph (b) of
this Section 2.07, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Note in an amount equal to
the principal amount of the beneficial interest in such Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the Global Notes, in whole, to
beneficial owners pursuant to paragraph (b) of this Section 2.07, the Global
Notes shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Notes an equal aggregate principal amount of Physical
Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in the Global
Notes pursuant to paragraph (b), (c) or (d) of this Section 2.07 shall, except
as otherwise provided by paragraph (h) of Section 2.08, bear the legend
regarding transfer restrictions applicable to the Physical Note set forth in
Section 2.02.
(f) The registered holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.08. SPECIAL TRANSFER PROVISIONS. Unless and until a Note is
exchanged for an Exchange Note or sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
11
(a) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note to a QIB:
(i) If the Note to be transferred consists of (x) Physical
Notes, the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in writing, that
it is purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (y) an
interest in the Global Notes, the transfer of such interest may be
effected only through the book-entry system maintained by the
Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Note to be transferred consists of Physical Notes, upon receipt by the
Registrar of the documents referred to in paragraph (i) above and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of Global
Notes in an amount equal to the principal amount of the Physical Notes
to be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(b) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear
the Private Placement Legend unless (i) the Private Placement Legend is no
longer required by Section 2.02 or (ii) there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(c) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions
on transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture. The Registrar shall not register a transfer of
any Note unless such transfer complies with the restrictions on transfer of
such Note set forth in this Indenture. In connection with any transfer of
Notes, each Holder agrees by its acceptance of the Notes to furnish the
Registrar or the Company such certifications, legal opinions or other
information as either of them may reasonably
12
require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; PROVIDED that the Registrar shall not
be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such certifications, legal
opinions or other information.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.07 or this Section 2.08. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. REPLACEMENT NOTES. If a mutilated Note is surrendered to the
Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a BONA FIDE purchaser, the Company shall
issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding;
PROVIDED that the requirements of this Section 2.09 are met. If required by the
Trustee or the Company, an indemnity bond must be furnished that is sufficient
in the judgment of both the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge such Holder for its expenses and the expenses
of the Trustee in replacing a Note. In case any such mutilated, lost, destroyed
or wrongfully taken Note has become or is about to become due and payable, the
Company in its discretion may pay such Note instead of issuing a new Note in
replacement thereof.
Every replacement Note is an additional obligation of the Company and shall
be entitled to the benefits of this Indenture.
SECTION 2.10. OUTSTANDING NOTES. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.10 as not outstanding.
If a Note is replaced pursuant to Section 2.09, it ceases to be outstanding
unless and until the Trustee and the Company receive proof satisfactory to them
that the replaced Note is held by a BONA FIDE purchaser.
If the Paying Agent (other than the Company or an Affiliate of the Company)
holds on the Maturity Date money sufficient to pay Notes payable on that date,
then on and after that date such Notes cease to be outstanding and interest on
them shall cease to accrue.
A Note does not cease to be outstanding because the Company or one of its
Affiliates holds such Note, PROVIDED, HOWEVER, that in determining whether the
Holders of the requisite principal amount of the outstanding Notes have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee has actual knowledge
13
to be so owned shall be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
SECTION 2.11. TEMPORARY NOTES. Until definitive Notes are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the temporary
Notes, as evidenced by their execution of such temporary Notes. If temporary
Notes are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.12. CANCELLATION. The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for transfer, exchange, payment or cancellation and shall dispose of them in
accordance with its normal procedure.
SECTION 2.13. CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and the Company
and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in
notices of exchange as a convenience to Holders; PROVIDED that any such notice
shall state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of exchange and
that reliance may be placed only on the other identification numbers printed on
the Notes. The Company shall promptly notify the Trustee of any change in
"CUSIP", "CINS" or "ISIN" numbers for the Notes.
SECTION 2.14. ISSUANCE OF ADDITIONAL NOTES. The Company may, subject to
Article Four of this Indenture and applicable law, issue additional Notes under
this Indenture. The Notes issued on the Closing Date and any additional Notes
subsequently issued shall be treated as a single class for all purposes under
this Indenture.
14
ARTICLE THREE
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION. The Notes are not redeemable prior to
the Maturity Date.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall pay the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and
this Indenture. An installment of principal or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company, a
Subsidiary of the Company or any Affiliate of any of them) holds on that date
money designated for and sufficient to pay the installment. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, an installment of principal or interest shall be considered paid on the
due date if the entity acting as Paying Agent complies with the last sentence of
Section 2.05. As provided in Section 6.10, upon any bankruptcy or reorganization
procedure relative to the Company, the Trustee shall serve as the Paying Agent,
if any, for the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. So long as any of the Notes
shall remain outstanding, the Company will maintain in the Borough of Manhattan,
The City of
New York an office or agency where Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of
New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of the
Trustee as such office of the Company in accordance with Section 2.04.
SECTION 4.03. LIMITATION ON LIENS ON COMMON STOCK OF SIGNIFICANT
SUBSIDIARY. So long as any of the Notes shall remain outstanding, the Company
will not, directly or indirectly, create, issue, assume, incur or guarantee any
indebtedness for money borrowed which is secured
15
by a mortgage, pledge, lien, security interest or other encumbrance of any
nature on any of the present or future common stock of any Significant
Subsidiary (or any company, other than the Company, having direct or indirect
control of any Significant Subsidiary), which common stock is directly or
indirectly owned by the Company, unless the Notes (together with, if the Company
so determines, any other indebtedness for money borrowed of the Company then
existing or thereafter created which is not subordinate to the Notes) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such other secured indebtedness for money borrowed so long as such indebtedness
shall be secured.
SECTION 4.04. COMPLIANCE CERTIFICATES. The Company shall deliver to the
Trustee on or before a date not more than four months after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by the Company's chief financial officer, principal executive
officer or principal accounting officer stating whether or not the signers have
knowledge of any Default or Event of Default. If any of the Officers of the
Company signing such certificate has knowledge of such a Default or Event of
Default, the Officers' Certificate shall describe any such Default or Event of
Default and the nature thereof.
SECTION 4.05. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 4.03 if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Notes shall, by action of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition, except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. So long as any Notes shall be
outstanding, the Company shall not consolidate with or merge into any other
Person or sell, convey, transfer or lease its properties and assets
substantially as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, the due and punctual payment of the principal of and interest on
the Notes and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
16
(b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company as a result of such
transaction as having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation or merger or such sale,
conveyance, transfer, lease or other disposition, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security interest or
other encumbrance of any nature which would not be permitted by this Indenture,
the Company or such successor corporation or such Person, firm or corporation,
as the case may be, shall take such steps as shall be necessary effectively to
secure the Notes (together with, if the Company so determines, any other
indebtedness for money borrowed of the Company then existing or thereafter
created which is not subordinate to the Notes) equally and ratably with (or, at
the option of the Company, prior to) all indebtedness secured thereby; and
(d) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer, lease or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article Five and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger, or
any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; PROVIDED that the Company shall not be released from its
obligation to pay the principal of or interest on the Notes in the case of a
lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. Any of the following events shall
constitute an "EVENT OF DEFAULT" hereunder:
(a) default in the payment of the principal of any of the Notes as and
when the same shall become due and payable either at maturity, by declaration or
otherwise; or
(b) default in the payment of any installment of interest on any of the
Notes as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
17
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in this
Indenture applicable to the Notes for a period of 90 days after the date on
which written notice of such failure, specifying such failure and requiring the
Company to remedy the same and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90 days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of any order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an Event of
Default specified in clause (d) or (e) of Section 6.01 that occurs with respect
to the Company) occurs and is continuing under this Indenture, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by written notice to the Company (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal of and accrued and unpaid interest on all the Notes
to be immediately due and payable, any provision of this Indenture or the Notes
to the contrary notwithstanding. Upon a declaration of acceleration, such
principal and accrued and unpaid interest shall be immediately due and payable.
In the event of a declaration of acceleration because an Event of Default set
forth in clause (c) of Section 6.01 has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the
event of default triggering such Event of Default pursuant to clause (c) shall
be remedied or cured by the Company or waived by the Holders within 60 days
after the declaration of acceleration with respect thereto. If an Event of
Default specified in clause (d) or (e) of Section 6.01 occurs with respect to
the Company, the principal and accrued and unpaid interest on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration, but before a judgment
or decree for the payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes by
written notice to the Company and to the Trustee, may waive all past Defaults
and rescind and annul a declaration of acceleration and its consequences if (a)
the Company has paid or deposited with the Trustee a sum sufficient to pay (i)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, (ii) all overdue
18
interest on all Notes, and (iii) the principal of any Notes that have become due
otherwise than by such declaration or occurrence of acceleration and interest
thereon at the rate prescribed therefor by such Notes, (b) all existing Events
of Default, other than the non-payment of the principal of and accrued and
unpaid interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in principal amount of the outstanding Notes shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Subject to Sections 6.02, 6.08 and
9.02, the Holders of at least a majority in principal amount of the outstanding
Notes, by notice to the Trustee, may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of or
interest on any Note as specified in clause (a) or (b) of Section 6.01 or in
respect of a covenant or provision of this Indenture which cannot be modified or
amended without the consent of the Holder of each outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of at least a majority in
aggregate principal amount of the outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee; PROVIDED that the
Trustee may refuse to follow any direction if the Trustee, being advised by
counsel, determines that the actions or proceedings so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or executive
committee or a trust committee of directors or trustees and/or responsible
officers shall determine that the actions or proceedings so directed would
involve the Trustee in personal liability; and PROVIDED FURTHER, that the
Trustee may take any other action it deems proper that is not inconsistent with
any such direction received from Holders of Notes.
SECTION 6.06. PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR. The Company
covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Notes, as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (b) in case default shall be made in the payment of principal of any of the
Notes, as and when the same shall have become due and payable, whether upon
maturity of the Notes or upon declaration or otherwise, then upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the Holders,
the whole amount that then shall have become due and payable on all of the
Notes, for principal or interest, if any, as the case may be, with interest upon
the overdue principal and (to the extent that payment of such interest is
enforceable under applicable law), upon overdue installments of interest, if
any, at the
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same rate as the rate of interest specified in the Notes; and, in addition
thereto, such further amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
SECTION 6.07. LIMITATION ON SUITS. A Holder may not institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) the Holder has previously given the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes shall have made a written request to the Trustee to
pursue such remedy;
(iii) such Holder or Holders offer the Trustee indemnity satisfactory
to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee
a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.07, the
Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Notes have concurred in any request or direction of the Trustee to pursue any
remedy available to the Trustee or the Holders with respect to this Indenture or
the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.08. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of or interest on such Note or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the
Notes, shall not be impaired or affected without the consent of such Holder.
SECTION 6.09. COLLECTION SUIT BY TRUSTEE. If an Event of Default in payment
of principal or interest specified in clause (a) or (b) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor of the
Notes for the whole amount of principal and accrued interest remaining unpaid,
together with interest on overdue principal, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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SECTION 6.10. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07) and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor of the Notes), its creditors or its property and
shall be entitled and empowered to collect and receive any monies, securities or
other property payable or deliverable upon conversion or exchange of the Notes
or upon any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.11. PRIORITIES. If the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order:
First: to the payment of all reasonable costs and expenses applicable
to such collection, reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: to Holders for amounts then due and unpaid for principal of
and interest on the Notes in respect of which or for the benefit of which
such money has been collected, with interest upon the overdue installments
of interest, to the extent lawful, at the same rate as the rate of interest
on the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal and
interest, respectively; and
Third: to the Company or any other obligors of the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.11.
SECTION 6.12. UNDERTAKING FOR COSTS. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court may require any party litigant
in such suit to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not apply
to a suit by the Trustee,
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a suit by a Holder pursuant to Section 6.08, or a suit by Holders of more than
10% in principal amount of the outstanding Notes.
SECTION 6.13. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.14. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.15. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article Six or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. GENERAL. The duties and responsibilities of the Trustee shall
be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Subject to TIA Sections 315(a)
through (d):
(i) the Trustee may conclusively rely, and shall be protected in
acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
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indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 11.04. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with
such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers, PROVIDED that the Trustee's conduct does not constitute
negligence or bad faith;
(vi) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(vii) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney;
(viii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by the Trustee hereunder in good faith and in reliance thereon;
(ix) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture;
23
(x) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder; and
(xi) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
Officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any Person
authorized to sign an Officers' Certificate, including any Person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee (i) makes no representation
as to the validity or adequacy of this Indenture or the Notes, (ii) shall not be
accountable for the Company's use or application of the proceeds from the Notes
and (iii) shall not be responsible for any statement in the Notes other than its
certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each Holder in the
manner and to the extent provided in TIA Section 313(c) notice of the Default or
Event of Default within 45 days after it occurs, unless such Default or Event of
Default has been cured; PROVIDED, HOWEVER, that, except in the case of a default
in the payment of the principal of or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each July
15, beginning with July 15, 2003, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report, if and as required by TIA Section
313(a), dated as of such July 15.
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by the Trustee without negligence or bad faith on its part.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
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The Company shall indemnify the Trustee and any predecessor trustee for,
and hold it harmless against, any and all loss or liability or expense incurred
by it without negligence or bad faith on its part in connection with the
acceptance or administration of this Indenture and its duties under this
Indenture and the Notes, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder, unless the Company is materially prejudiced thereby.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. Unless otherwise set forth herein, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity as Trustee, except money or property
held in trust to pay principal of and interest on particular Notes.
If the Trustee incurs expenses or renders services after the occurrence of
an Event of Default specified in clause (d) or (e) of Section 6.01, the expenses
and the compensation for the services will be intended to constitute expenses of
administration under Title 11 of the United States Bankruptcy Code or any
applicable federal or state law for the relief of debtors.
The provisions of this Section 7.07 shall survive the termination of this
Indenture and the resignation and removal of the Trustee.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08.
The Trustee may resign at any time by so notifying the Company in writing
at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the outstanding Notes may at any time remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The
Company may remove the Trustee if: (i) the Trustee is no longer eligible under
Section 7.10; (ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next
25
succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Notes may, at the expense
of the Company, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after the delivery of
such written acceptance, subject to the lien provided in Section 7.07, (i) the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee shall
become effective and (iii) the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder. No successor Trustee shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
If the Trustee is no longer eligible under Section 7.10 or shall fail to
comply with TIA Section 310(b), any Holder who satisfies the requirements of TIA
Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.08, the Trustee shall resign immediately in the manner and with the
effect provided in this Section.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligation under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein, PROVIDED such corporation shall be otherwise qualified and eligible
under this Article.
SECTION 7.10. ELIGIBILITY. This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition that is subject to the requirements
of applicable Federal or state supervising or examining authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in this Article.
SECTION 7.11. MONEY HELD IN TRUST. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
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ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS. Except as otherwise
provided in this Section 8.01, the Company may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes that have been replaced or Notes that are
paid pursuant to Section 4.01 or Notes for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder;
or
(ii) (A) the Notes mature within one year, (B) the Company
irrevocably deposits in trust with the Trustee during such one-year period,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
Holders for that purpose, money or U.S. Government Obligations sufficient
(in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of any interest
thereon, to pay principal and interest on the Notes to maturity, and to pay
all other sums payable by it hereunder, (C) no Default or Event of Default
with respect to the Notes shall have occurred and be continuing on the date
of such deposit, (D) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound and (E)
the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations under
Section 7.07 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes
are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07, 8.04, 8.05 and 8.06 shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under the Notes and this Indenture except for those
surviving obligations specified above.
SECTION 8.02. DEFEASANCE AND DISCHARGE OF INDENTURE. The Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 91st day after the date of the deposit referred to
in clause (a) of this Section 8.02, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same if:
(a) with reference to this Section 8.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.10) and conveyed all right,
title and interest to the Trustee for the
27
benefit of the Holders, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as security
for payment of the principal of and interest, if any, on the Notes, and
dedicated solely to, the benefit of the Holders, in and to (1) money in an
amount, (2) U.S. Government Obligations that, through the payment of interest
and principal in respect thereof in accordance with their terms, will provide,
not later than one day before the due date of any payment referred to in this
clause (a), money in an amount or (3) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the principal
of and interest on the outstanding Notes on the Stated Maturity of such
principal or interest; PROVIDED that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal and interest with respect to the
Notes;
(b) the Company has delivered to the Trustee either (x) an Opinion of
Counsel to the effect that Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of its option
under this Section 8.02 and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if such option had not been exercised, which Opinion of Counsel shall be based
upon (and accompanied by a copy of) a ruling of the Internal Revenue Service to
the same effect unless there has been a change in applicable federal income tax
law after the Closing Date such that a ruling is no longer required or (y) a
ruling directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel.
(c) immediately after giving effect to such deposit, on a pro forma basis,
no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 6.01(d) and 6.01(e) are concerned, at
any time during the period ending on the 91st day after such date of such
deposit;
(d) if the Notes are then listed on a national securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Notes will not be delisted as a result of such deposit, defeasance and
discharge; and
(e) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
have been complied with.
Notwithstanding the foregoing, prior to the end of the 91-day period
referred to in clause (c) of this Section 8.02, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 91-day period with respect to this Section 8.02, the Company's obligations
in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 8.04, 8.05, 8.06 and
the rights, powers, trusts, duties and immunities of the Trustee hereunder shall
survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall survive.
28
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Notes and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. DEFEASANCE OF CERTAIN OBLIGATIONS. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.03 and 5.01
and clause (c) of Section 6.01 with respect to Sections 4.03 and 5.01, and
clause (c) of Section 6.01 shall be deemed not to be an Event of Default, in
each case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.10)
and conveyed all right, title and interest to the Trustee for the benefit
of the Holders, under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of and interest, if any, on the
Notes, and dedicated solely to, the benefit of the Holders, in and to (A)
money in an amount, (B) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance with
their terms, will provide, not later than one day before the due date of
any payment referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of and
interest on the outstanding Notes on the Stated Maturity of such principal
or interest; PROVIDED that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal and interest with respect to
the Notes;
(ii) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit and defeasance had not
occurred;
(iii) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 6.01(d) and 6.01(e) are
concerned, at any time during the period ending on the 91st day after such
date of such deposit;
(iv) if the Notes are then listed on a national securities exchange,
the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge; and
29
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. APPLICATION OF TRUST MONEY. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of and interest on the Notes; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 8.05. REPAYMENT TO COMPANY. Subject to Sections 7.07, 8.01, 8.02
and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any excess money held by them
at any time and thereupon shall be relieved from all liability with respect to
such money. The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years; PROVIDED that the Trustee or Paying Agent
before being required to make any payment may cause to be published at the
expense of the Company once in a newspaper of general circulation in The City of
New York or mail to each Holder entitled to such money at such Holder's address
(as set forth in the Security Register) notice that such money remains unclaimed
and that after a date specified therein (which shall be at least 30 days from
the date of such publication or mailing) any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.01,
8.02 or 8.03, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or
8.03, as the case may be; PROVIDED that, if the Company has made any payment of
principal of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a
resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the
30
Trustee), and the Trustee may amend or supplement this Indenture or the Notes
without notice to or the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency in this
Indenture;
(ii) to comply with Article Five;
(iii) to comply with any requirements of the Commission in connection
with any qualification of this Indenture under the TIA;
(iv) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(v) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(vi) to add to the covenants of the Company for the protection of
the Holders, to add any additional Events of Default with respect to the
Notes, or to surrender any right or power conferred upon the Company; or
(vii) to make any change that, in the good faith opinion of the Board
of Directors as evidenced by a Board Resolution, does not materially and
adversely affect the rights of any Holder.
Any amendment described in clause (i) above made solely to conform this
Indenture to the final offering memorandum provided to investors in connection
with the initial offering of the Notes by the Company will not be deemed to
materially and adversely affect the rights of Holders.
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to Sections 6.04 and 6.08
and without prior notice to the Holders, the Company, when authorized by its
Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend this Indenture and the Notes with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding, and the Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Notes.
Notwithstanding the provisions of this Section 9.02, without the consent of
each Holder affected, an amendment or waiver, including a waiver pursuant to
Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount of or interest on any Note;
(iii) change any place or currency of payment of principal of or
interest on any Note;
31
(iv) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity on any Note;
(v) reduce the percentage or principal amount of outstanding Notes
the consent of whose Holders is necessary to modify or amend this Indenture
or to waive compliance with certain provisions of or certain Defaults under
this Indenture;
(vi) waive a default in the payment of principal of or interest on
any Note; or
(vii) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Note affected thereby.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. ACTION BY HOLDERS; RECORD DATES. Whenever in this Indenture
it is provided that the Holders of a specified aggregate principal amount of the
outstanding Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the Holders of such
specified amount have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by such Holders in person or
by agent or proxy appointed in writing, or (b) the record of the Holders voting
in favor thereof at any meeting of the Holders duly called and held in
accordance with the provisions of Article Ten, or (c) any combination of such
instrument or instruments and any such record of such a meeting of the Holders.
Subject to the provisions of Sections 7.02 and 10.05, proof of the
execution of any instrument by a Holder or its agent or proxy shall be
sufficient if the ownership of the Notes shall be proved by (a) the Security
Register or by a certificate of the Registrar; or (b) in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in any
other manner which the Trustee may deem sufficient.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after
32
such record date. No such consent shall be valid or effective for more than 90
days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the
second paragraph of Section 9.02, the amendment or waiver shall bind each Holder
who has consented to it and every subsequent Holder of a Note that evidences the
same indebtedness as the Note of the consenting Holder.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENT. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. If an amendment, supplement
or waiver changes the terms of a Note, the Trustee may require the Holder to
deliver such Note to the Trustee. At the Company's expense, the Trustee may
place an appropriate notation on the Note about the changed terms and return it
to the Holder, and the Trustee may place an appropriate notation on any Note
thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation, or issue a new Note, shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Company. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.07. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.
33
ARTICLE TEN
MEETINGS OF THE HOLDERS
SECTION 10.01. PURPOSES OF MEETINGS. A meeting of the Holders may be called
at any time and from time to time pursuant to the provisions of this Article Ten
for any of the following purposes:
(i) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any Default hereunder and its
consequences, or to take any other action authorized to be taken by the
Holders pursuant to any of the provisions of Article Six;
(ii) to remove the Trustee and appoint a successor trustee pursuant
to the provisions of Article Seven;
(iii) to consent to any amendment, supplement or waiver pursuant to
the provisions of Section 9.02; or
(iv) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
outstanding Notes under any other provision of this Indenture or under
applicable law.
SECTION 10.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of the Holders to take any action specified in Section 10.01, to
be held at such time and at such place in the Borough of Manhattan, The City of
New York, as the Trustee shall determine. Notice of every meeting of the
Holders, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given (a) to all
Holders of Notes then outstanding, by publication at least twice in an
Authorized Newspaper in the Borough of Manhattan, The City of New York prior to
the date fixed for the meeting, the first publication, in each case, to be not
less than 20 nor more than 180 days prior to the date fixed for the meeting and
the last publication to be not more than five days prior to the date fixed for
the meeting and (b) to all Holders of Notes then outstanding who have filed
their names and addresses with the Trustee, by mailing such notice to such
Holders at such addresses, not less than 20 nor more than 180 days prior to the
date fixed for the meeting. Failure of any Holder or Holders to receive such
notice or any defect therein shall in no case affect the validity of any action
taken at such meeting. Any meeting of the Holders shall be valid without notice
if the Holders of all Notes then outstanding, the Company and the Trustee are
present in person or by proxy or shall have waived notice thereof before or
after the meeting.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. In case at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, as the case may be,
shall have requested the Trustee to call a meeting of the Holders to take any
action authorized in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, the Trustee
shall not have mailed or published as provided in Section 10.02, the notice of
such meeting within 30 days after receipt of such request, then the Company or
the Holders in the amount above
34
specified may determine the time and the place in said Borough of Manhattan for
such meeting and may call such meeting to take any action authorized in Section
10.01, by mailing or publishing notice thereof as provided in Section 10.02.
SECTION 10.04. QUALIFICATION FOR VOTING. To be entitled to vote at any
meeting of the Holders a person shall be a Holder of the Notes or a person
appointed by an instrument in writing as proxy by such Holder. The only persons
who shall be entitled to be present or to speak at any meeting of the Holders
shall be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. REGULATIONS. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of the Holders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as the Trustee shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Holders as provided in Section 10.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote.
Subject to the provisions of Section 9.03, at any meeting of the Holders,
each Holder or proxy shall be entitled to one vote for each $1,000 principal
amount at maturity of outstanding Notes held or represented by such Holder;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of
the meeting not to be outstanding. The chairman of the meeting shall have no
right to vote except as a Holder or proxy. Any meeting of the Holders duly
called pursuant to the provisions of Section 10.02 or 10.03 may be adjourned
from time to time, and the meeting may be held as so adjourned without further
notice.
SECTION 10.06. VOTING. The vote upon any resolution submitted to any
meeting of the Holders shall be by written ballot on which shall be subscribed
the signatures of the Holders or proxies and on which shall be inscribed the
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of the Holders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section
10.02. The record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
35
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached hereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT OF 1939. Prior to the effectiveness of
the Registration Statement, this Indenture shall incorporate and be governed by
the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. After the effectiveness of the Registration
Statement, this Indenture shall be subject to the provisions of the TIA that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 11.02. NOTICES. Any notice or communication shall be sufficiently
given if in writing and delivered in person, mailed by first-class mail or sent
by telecopier transmission addressed as follows:
if to the Company:
Aon Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
if to the Trustee:
The Bank of New York
c/o BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it at its
address as it appears on the Security Register by first-class mail and shall be
sufficiently given to him if so mailed within the time prescribed. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder as provided herein or
any defect in any such notice or communication shall not affect its sufficiency
with respect to other Holders.
36
Except for a notice to the Trustee, which is deemed given only when received,
and except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 11.02, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 11.03. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 11.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, such
person has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that, with respect to
37
matters of fact, an Opinion of Counsel may rely on an Officers' Certificate
or certificates of public officials.
SECTION 11.05. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The Trustee may
make reasonable rules for action by or at a meeting of Holders. The Paying Agent
or Registrar may make reasonable rules for its functions.
SECTION 11.06. PAYMENT DATE OTHER THAN A BUSINESS DAY. If any Interest
Payment Date or the Maturity Date shall not be a Business Day, then payment of
principal of or interest on the Notes will be made on the next succeeding
Business Day with the same force and effect as if made on the date such payment
was due, and no interest will accrue on such payment for the period from and
after such Interest Payment Date or the Maturity Date to the date of such
payment on the next succeeding Business Day.
SECTION 11.07. GOVERNING LAW. This Indenture and the Notes shall be
governed by the laws of the State of New York. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture or
the Notes.
SECTION 11.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.09. NO RECOURSE AGAINST OTHERS. No recourse for the payment of
the principal of or interest on any of the Notes, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company contained in this Indenture or in any of
the Notes, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator or against any past, present or future
partner, stockholder, other equityholder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
SECTION 11.10. SUCCESSORS. All agreements of the Company in this Indenture
and the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.11. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.12. SEPARABILITY. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
38
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms and provisions hereof.
SECTION 11.14. COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.
39
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
Aon CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
40
EXHIBIT A
FORM OF NOTE
[UNLESS AND UNTIL A NOTE IS EXCHANGED FOR AN EXCHANGE NOTE OR SOLD IN
CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT PURSUANT TO THE REGISTRATION
RIGHTS AGREEMENT, THE GLOBAL NOTES AND PHYSICAL NOTES SHALL BEAR THE LEGEND SET
FORTH BELOW.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL
NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED
TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING RESTRICTIONS.]
[EACH GLOBAL NOTE, WHETHER OR NOT AN EXCHANGE NOTE, SHALL ALSO BEAR THE
FOLLOWING LEGEND.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS
REGISTERED IN THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFERS OF THIS GLOBAL
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.08 OF THE INDENTURE.]
A-2
[FACE OF NOTE]
AON CORPORATION
7.375% SENIOR NOTE DUE 2012
[CUSIP] [CINS] [ISIN] [__________]
No. ____ Principal Amount $__________
Aon CORPORATION, a Delaware corporation (the "Company", which term includes
any successor under the Indenture hereinafter referred to), for value received,
promises to pay to _____________, or its registered assigns, the principal sum
of ____________ ($_________) on December 14, 2012.
Interest Payment Dates: June 14 and December 14 of each year, commencing
June 14, 2003.
Record Dates: The fifteenth calendar day, whether or not a Business Day,
immediately preceding each Interest Payment Date.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Additional provisions of this Note are set forth on the other side of this
Note.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Aon CORPORATION
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 7.375% Senior Notes due 2012 described in the
within-mentioned Indenture.
Date: December 16, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Trustee
By:
-------------------------------------
Authorized Signatory
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[REVERSE SIDE OF NOTE]
AON CORPORATION
7.375% SENIOR NOTE DUE 2012
1. PRINCIPAL AND INTEREST.
The Company will pay the principal of this Note on December 14, 2012.
The Company promises to pay interest on the principal amount of this Note
on each Interest Payment Date, as set forth below, at the rate per annum shown
above, subject to adjustment as described below.
Interest will be payable semiannually in arrears (to the Holders of record
of the Notes at the close of business on the fifteenth calendar day, whether or
not a Business Day, immediately preceding the relevant Interest Payment Date) on
each Interest Payment Date of each year, commencing June 14, 2003; PROVIDED that
no interest shall accrue on the principal amount of this Note prior to December
16, 2002. Interest on the Notes will be computed on the basis of a 360-day year
of twelve 30-day months.
If an exchange offer (the "EXCHANGE OFFER") registered under the Securities
Act is not consummated or a Shelf Registration Statement under the Securities
Act with respect to resales of the Notes is not declared effective by the
Commission, on or before the date that is 210 days after the date on which the
Notes are originally issued under this Indenture (the "REGISTRATION DATE") in
accordance with the terms of the Registration Rights Agreement, dated as of
December 16, 2002, between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Credit
Suisse First Boston Corporation, BNY Capital Markets, Inc. and Wachovia
Securities, Inc., the annual interest rate payable on the Notes shall be
increased by 0.5% from the rate shown above accruing from the Registration Date,
payable in cash semiannually, in arrears, on each Interest Payment Date until
the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
Interest on the Notes will accrue from, and including, December 16, 2002
to, and excluding, the first Interest Payment Date and then from, and including,
the immediately preceding Interest Payment Date to which interest has been paid
or duly provided for to, but excluding, the next Interest Payment Date or the
Maturity Date, as the case may be; PROVIDED that, if there is no existing
default in the payment of interest and this Note is authenticated between a
Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company will pay interest on the principal amount of the Notes as
provided above on each June 14 and December 14, commencing June 14, 2003 to the
persons who are Holders (as reflected in the Security Register at the close of
business on the fifteenth calendar day, whether or not a Business Day,
immediately preceding the Interest Payment Date), in each case,
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even if the Note is cancelled on registration of transfer or registration of
exchange after such Record Date; PROVIDED that, with respect to the payment of
principal, the Company will make payment to the Holder that surrenders this Note
to a Paying Agent on or after December 14, 2012.
The Company will pay principal and, as provided above, interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal and interest by
its check payable in such money. It may mail an interest check to a Holder's
registered address (as reflected in the Security Register). If any Interest
Payment Date or the Maturity Date falls on a day that is not a Business Day, the
payment of principal and interest will be made on the next succeeding Business
Day as if made on the date such payment was due, and no interest will accrue on
such payment for the period from and after the Maturity Date to the date of such
payment on the next succeeding Business Day.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will act as authenticating agent, Paying Agent and
Registrar. The Company may change any authenticating agent, Paying Agent or
Registrar without notice. The Company, any Subsidiary or any Affiliate of any of
them may act as Paying Agent, Registrar or Co-Registrar.
4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture, dated as of December 16,
2002 (the "Indenture"), between the Company and The Bank of New York, as trustee
(the "Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and applicable
law, issue additional Notes under the Indenture.
5. REDEMPTION.
The Notes are not redeemable prior to the Maturity Date.
6. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons in denominations of $1,000
of principal amount and multiples of $1,000 in excess thereof. A Holder may
register the transfer or exchange of Notes in accordance with the Indenture. The
Registrar may require a Holder,
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among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
7. PERSONS DEEMED OWNERS.
A Holder shall be treated as the owner of a Note for all purposes.
8. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee and the Paying Agent will pay the money back to the Company
at its request. After that, Holders entitled to the money must look to the
Company for payment, unless an abandoned property law designates another Person,
and all liability of the Trustee and such Paying Agent with respect to such
money shall cease. In no event will interest accrue on such unclaimed monies.
9. DISCHARGE PRIOR TO MATURITY.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of and accrued and
unpaid interest on the Notes (a) to maturity, the Company will be discharged
from the Indenture and the Notes, except in certain circumstances for certain
provisions thereof, and (b) to the Stated Maturity, the Company will be
discharged from certain covenants set forth in the Indenture.
10. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, (a) the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding and (b) any existing default
or compliance with any provision may be waived with the consent of the Holders
of at least a majority in principal amount of the Notes then outstanding.
Without notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
11. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the Company,
among other things, to (a) create security interests in the common stock of any
Significant Subsidiary to secure debt or (b) merge, consolidate or transfer or
lease substantially all of its assets. On or before a date not more than four
months after the end of each fiscal year, the Company shall deliver to the
Trustee an Officers' Certificate stating whether or not the signers thereof know
of any Default or Event of Default under such restrictive covenants.
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12. SUCCESSOR PERSONS.
When a successor Person or other entity assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor person will be
released from those obligations.
13. DEFAULTS AND REMEDIES.
Any of the following events constitutes an "Event of Default" under the
Indenture:
(a) default in the payment of the principal of any of the Notes as and
when the same shall become due and payable either at maturity, by declaration or
otherwise; or
(b) default in the payment of any installment of interest on any of the
Notes as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in this
Indenture applicable to the Notes for a period of 90 days after the date on
which written notice of such failure, specifying such failure and requiring the
Company to remedy the same and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90 days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of any order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding shall, declare all
the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes automatically become
due and payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of at least a majority in principal amount of the Notes then outstanding
may direct the Trustee in its exercise of any trust or power.
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14. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from and perform services for the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS.
No incorporator or any past, present or future partner, stockholder, other
equityholder, officer, director, employee or controlling person, as such, of the
Company or of any successor Person shall have any liability for any obligations
of the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
16. AUTHENTICATION.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
18. GOVERNING LAW.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York. The Trustee, the Company and the Holders agree to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to the Notes.
The Company will furnish a copy of the Indenture to any Holder upon written
request and without charge. Requests may be made to
Aon Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Treasurer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto:_________________________________________________
Insert Taxpayer Identification No.
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing attorney to transfer said Note on the books of the Company with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the end of the period referred to in Rule 144(k) under the Securities
Act, the undersigned confirms that without utilizing any general solicitation or
general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933 provided by Rule 144A
thereunder.
or
[ ](b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
----------------
-------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
[TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933 and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
----------------
-------------------------------------
NOTICE: To be executed by an
executive officer]
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[TO BE INCLUDED ON EXCHANGE NOTES]
ASSIGNMENT FORM
I or we assign and transfer this Note to:_______________________________________
Insert social security or other identifying number of assignee
________________________________________________________________________________
Print or type name, address and zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
and irrevocably appoint ____________________________________, as agent, to
transfer this Note on the books of the Company.
The agent may substitute another to act for him.
Date:
-----------------
Signed
------------------------------
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee*:
---------------------------------------
* The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" as
defined by Rule 17Ad-15 under the Exchange Act.
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