▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ COMPANIES INC.,
Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
--------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 14, 1999
--------------
$600,000,000 principal amount of 6-5/8% Senior Notes Due 2004
$400,000,000 principal amount of 7-1/8% Senior Notes Due 2009
FIRST SUPPLEMENTAL INDENTURE, dated as of June 14, 1999, between ▇▇▇▇▇ &
McLENNAN COMPANIES, INC., a Delaware corporation (the "Company" and hereinafter
the "Issuer"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee executed and delivered an Indenture
dated as of June 14, 1999 (as supplemented hereby, the "Indenture"), to provide
for the issuance by the Issuer from time to time of senior debt securities
evidencing its unsecured indebtedness;
WHEREAS, pursuant to a Board Resolution, the Issuer has authorized the
issuance of $600,000,000 principal amount of 6-5/8% Senior Notes due 2004 (the
"6-5/8% Notes") and $400,000,000 principal amount of 7-1/8% Senior Notes due
2009 (the "7-1/8% Notes", together with the 6-5/8% Notes, the "Offered
Securities");
WHEREAS, the entry into this First Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture;
WHEREAS, the Issuer desires to establish the terms of the Offered
Securities in accordance with Section 2.01 of the Indenture and to establish the
form of the Offered Securities in accordance with Section 2.02 of the Indenture;
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid indenture and agreement according to its terms have been done; and
NOW, THEREFORE, for and in consideration of the premises, the Issuer and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of the respective holders from time to time of the Offered Securities as
follows:
ARTICLE 1.
Section 1.1. Terms of Offered Securities. The following terms relating to
the Offered Securities are hereby established:
(1) The 6-5/8% Notes shall constitute a series of securities having the
title "6-5/8% Senior Notes due 2004" and the 7-1/8% Notes shall constitute a
series of securities having the title "7-1/8% Senior Notes due 2009."
(2) The aggregate principal amount of the 6-5/8% Notes that may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Sections 2.05, 2.06, 2.07 or 9.01) shall be up to
$600,000,000. The aggregate principal amount of the 7-1/8% Notes that may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Sections 2.05, 2.06, 2.07 or 9.01) shall be up to
$400,000,000.
(3) The entire outstanding principal of the 6-5/8% Notes shall be payable
on June 15, 2004 plus any unpaid interest accrued to such date and the entire
outstanding principal of the 7-1/8% Notes shall be payable on June 15, 2009 plus
any unpaid interest accrued to such date.
(4) The rate at which the 6-5/8% Notes shall bear interest shall be 6-5/8%
per annum and the rate at which the 7-1/8% Notes shall bear interest shall be
7-1/8% per annum; the date from which interest shall accrue on the Offered
Securities shall be June 14, 1999; the Interest Payment Dates for the Offered
Securities on which interest will be payable shall be June 15 and December 15 in
each year, beginning December 15, 1999; the Regular Record Dates for the
interest payable on the Offered Securities on any Interest Payment Date shall be
the June 1 and December 1 preceding the applicable Interest Payment Date; and
the basis upon which interest shall be calculated shall be that of a 360-day
year consisting of twelve 30-day months.
(5) (A) Each of the Offered Securities may be redeemed in whole at any time
or in part from time to time, at the option of the Issuer, at a redemption price
equal to the greater of (i) 100% of the principal amount of the applicable
series of Offered Securities to be redeemed and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on the
applicable series of Offered Securities discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the applicable Treasury Rate plus 10 basis points for the 6-5/8% Notes or the
applicable Treasury Rate plus 15 basis points for the 7-1/8% Notes, plus, in
either case, accrued and unpaid interest on the principal amount being redeemed
to the redemption date (the "Redemption Price").
(B)(i) In case the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Offered Securities in accordance
with Section 1.1(5)(A), the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Offered Securities of such series to
be redeemed by mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 60 days before the date fixed for
redemption of that series to such holders at their last addresses as they shall
appear upon the Security Register. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the registered holder received the notice. In any case, failure duly to
give such notice to the holder of any Offered Security designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity
of the proceedings for the redemption of any other Offered Security of such
series or of another series.
Each such notice of redemption shall specify the date fixed for redemption
and the Redemption Price at which the Offered Securities are to be redeemed, and
shall state that payment of the Redemption Price of such Offered Securities to
be redeemed will be made at the office or agency of the Company in the Borough
of Manhattan, the City and State of New York, upon presentation and surrender of
such Offered Securities, that interest accrued to the date fixed for redemption
will be paid as specified in said notice and, that from and after said date
interest will cease to accrue. If less than all the Offered Securities of a
series are to be redeemed, the notice to the holders of the Offered Securities
of that series to be redeemed in whole or in part shall specify the particular
Offered Securities to be redeemed. In case any Offered Security is to be
redeemed in part only, the notice that relates to such Offered Security shall
state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such security, a
new Offered Security or Offered Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(ii) If less than all the Offered Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in advance
of the date fixed for redemption as to the aggregate principal amount of Offered
Securities of the series to be redeemed, and thereupon the Trustee shall select,
by lot or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions
(equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Offered Securities of a denomination larger than
$1,000, the Offered Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Offered Securities to be
redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the Offered
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
(C) As used herein:
"Treasury Rate" means, with respect to any redemption date, (i) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the Remaining Life, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue will be determined and
the Treasury Rate will be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price of
such redemption date. The Treasury Rate will be calculated by the Independent
Investment Banker on the third Business Day preceding the redemption date.
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the Offered Securities to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of such Offered Securities.
"Independent Investment Banker" means either Chase Securities Inc. or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, and their respective successors, or, if both
firms are unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee after consultation with the Issuer.
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Reference Treasury Dealer" means (i) Chase Securities Inc. and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, and their respective successors, provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
will substitute for such underwriter another Primary Treasury Dealer and (ii)
any other Primary Treasury Dealer selected by the Independent Investment Banker
after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such redemption
date.
With respect to Section 5(A)(ii) above, the Trustee shall be entitled to
rely upon the calculations of the Independent Investment Banker.
(6) The Offered Securities shall not be redeemable at the option of any
holder thereof, upon the occurrence of any particular circumstances or
otherwise. The Offered Securities will not have the benefit of any sinking fund.
(7) The Offered Securities shall be issuable in denominations of $1,000 and
any integral multiple thereof.
(8) The Trustee shall also be the security registrar and paying agent for
the Offered Securities.
(9) Payments of the principal of and interest on the Offered Securities
shall be made in U.S. Dollars, and the Notes shall be denominated in U.S.
Dollars.
(10) The holders of the Offered Securities shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(11) The Notes shall not be subordinated to any other debt of the Issuer,
and shall constitute senior unsecured obligations of the Issuer.
(12) The Offered Securities are issuable in book entry form and are not
convertible into shares of common stock or other securities of the Company.
Section 1.2. Amendment to Article IV. Article IV of the Indenture is hereby
amended to include the following covenant with respect to the Offered Securities
only (and not with respect to any other series of securities issuable pursuant
to the Indenture unless the supplemental indenture relating thereto expressly so
provides), which reads in its entirety as follows:
Section 4.06. Limitation on Liens on Stock of Significant Subsidiaries. The
Company will not, and it will not permit any Subsidiary of the Company to, at
any time directly or indirectly create, assume, incur or permit to exist any
Indebtedness secured by a pledge, lien or other encumbrance (any pledge, lien or
other encumbrance being hereinafter in this Section referred to as a "lien") on
the voting stock of ▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Investments, Inc. or ▇▇▇▇▇▇ Consulting
Group, Inc. (each a "Significant Subsidiary") without making effective provision
whereby the Offered Securities then Outstanding (and, if the Company so elects,
any other Indebtedness of the Company that is not subordinate to the Offered
Securities and with respect to which the governing instruments require, or
pursuant to which the Company is otherwise obligated or required, to provide
such security) shall be equally and ratably secured with such secured
Indebtedness so long as such other Indebtedness shall be so secured.
"Indebtedness" of any person means the principal of and premium, if any,
and interest due on indebtedness of such Person, whether outstanding on the date
of this Indenture or thereafter created, incurred or assumed, which is (a)
indebtedness for money borrowed, and (b) any amendments, renewals, extensions,
modifications and refundings of any such indebtedness. For the purposes of this
definition, "indebtedness for money borrowed" means (i) any obligation of, or
any obligation guaranteed by, such Person for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) any obligation of, or any such obligation guaranteed by, such
Person evidenced by bonds, debentures, notes or similar written instruments,
including obligations assumed or incurred in connection with the acquisition of
properly, assets or businesses (provided, however, that the deferred purchase
price of any business or property or assets shall not be considered Indebtedness
if the purchase price thereof is payable in full within 90 days from the date on
which such indebtedness was created), and (iii) any obligations of such Person
as lessee under leases required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles and leases of property or
assets made as part of any sale and lease-back transaction to which such Person
is a party. For purposes of this covenant only, Indebtedness also includes any
obligation of, or any obligation guaranteed by, any Person for the payment of
amounts due under a swap agreement or similar instrument or agreement, or under
a foreign currency hedge or similar instrument or agreement.
If the Company shall hereafter be required to secure the Offered Securities
equally and ratably with any other Indebtedness pursuant to this Section, (i)
the Company will promptly deliver to the Trustee an Officers' Certificate
stating that the foregoing covenant has been complied with, and an Opinion of
Counsel stating that in the opinion of such counsel the foregoing covenant has
been complied with and (ii) the Trustee is hereby authorized to enter into an
indenture or agreement supplemental hereto and to take such action, if any, as
it may deem advisable to enable it to enforce the rights of the holders of the
Offered Securities so secured.
Section 1.3. Amendment of Section 6.01(a)(1). Section 6.01(a)(1) of the
Indenture is hereby amended and restated in its entirety with respect to the
Offered Securities only (and not with respect to any other series of securities
issuable pursuant to the Indenture unless the supplemental indenture relating
thereto expressly so provides) as follows:
(1) the Company defaults in the payment of any installment of interest upon
any of the Securities of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of interest for this purpose.
Section 1.4. Amendment of Article Ten. Article Ten of the Indenture is
hereby amended and restated in its entirety with respect to the Offered
Securities only (and not with respect to any other series of securities issuable
pursuant to the Indenture unless the supplemental indenture relating thereto
expressly so provides) as follows:
Section 10.01. Company May Consolidate, Etc., Only on Certain Terms. (a)
Subject to Section 10.01(c) below, the Company shall not consolidate with or
merge into any other Person or convey, transfer or lease all or substantially
all of its properties and assets to any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease all or substantially all of its properties and
assets to any Person, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, all or substantially all of the properties and assets of the
Company shall be a corporation, partnership or trust, shall be organized and
validly 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 any premium and interest on all the Securities
and the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to 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; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
Section 10.02. Successor Substitute. Upon any consolidation of the Company
with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of all or substantially all of the properties and assets of
the Company in accordance with Section 10.01 above, the successor Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under the Indenture with
the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under the Indenture and the
Offered Securities.
Section 10.03. Evidence of Consolidation, Etc. to Trustee. The Trustee,
subject to the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
Section 1.5. Trustee's obligations with respect to the Covenants. The
Trustee shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in this Article
One or with respect to reports or other documents filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 5.01 and 5.03 of the Indenture and to
fulfill its obligations under Article Seven of the Indenture.
Section 1.6. Form of Note. The form of the 6-5/8 Notes and the 7-1/8 Notes
is attached hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
Section 2.1. Definitions. Capitalized terms used but not defined in this
First Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
Section 2.2. Confirmation of Indenture. The Indenture, as heretofore
supplemented and amended by this First Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this First Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
Section 2.3. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
Section 2.4. Governing Law. This First Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
Section 2.5. Seperability. In case any provision in this First Supplemental
Indenture shall for any reason be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 2.6. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, this Supplemental Indenture has been duly executed by
the Company and the Trustee as of the day and year first written above.
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Signatory
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President &
Treasurer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Authorized Signatory
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President