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As filed with the Securities and Exchange Commission on September 3, 2015

Registration No. 333-          


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


(Exact name of each registrant as specified in its charter)

Aon plc
England and Wales
(State or other jurisdiction of incorporation or organization) 		  Aon Corporation
Delaware
(State or other jurisdiction of incorporation or organization)

98-1030901
(I.R.S. employer identification number)
 
36-3051915
(I.R.S. employer identification number)

The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN
+44 20 7623 5500
 
200 East Randolph Street
Chicago, Illinois 60601
United States of America
(312) 381-1000
(Address, including zip code, and telephone number, including area code, of each registrant's principal executive offices)


Peter M. Lieb
Executive Vice President and General Counsel
Aon plc
200 East Randolph Street
Chicago, Illinois 60601
(312) 381-1000
(Name, address, including zip code, and telephone number, including area code, of agent for service for each registrant)


Copies To

Thomas A. Cole, Esq.
Gary D. Gerstman, Esq.
Robert A. Ryan, Esq.
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
(312) 853-7000


Approximate Date of Commencement of Proposed Sale to the Public:
From time to time after this Registration Statement becomes effective.

             If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.     o

             If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.     ý

             If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

             If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

             If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.     ý

             If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.     o

             Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):

Aon plc
Large Accelerated filer  ý   Accelerated filer  o   Non-accelerated filer  o
(Do not check if a
smaller reporting company) 		  Smaller reporting company  o

Aon Corporation
Large Accelerated filer  o   Accelerated filer  o   Non-accelerated filer  ý
(Do not check if a
smaller reporting company) 		  Smaller reporting company  o

CALCULATION OF REGISTRATION FEE

               
 
Title of Each Class of Securities
to be Registered
  Amount to be
Registered(1)
  Proposed Maximum
Offering Price Per
Unit(1)
  Proposed Maximum
Aggregate Offering
Price(1)
  Amount of
Registration Fee(1)
 

Aon plc

               
 

Debt Securities

               
 

Guarantees

               
 

Preference Shares

               
 

Class A Ordinary Shares

               
 

Share Purchase Contracts

               
 

Share Purchase Units

               
 

Aon Corporation

               
 

Debt Securities

               
 

Guarantees

               
 

Total

               

 

(1)
An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices. Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities.

   

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PROSPECTUS

LOGO

Aon plc

Debt Securities
Guarantees
Preference Shares
Class A Ordinary Shares
Share Purchase Contracts
Share Purchase Units


Aon Corporation

Debt Securities
Guarantees

        We may from time to time offer and sell any of our securities listed above, in each case, in one or more series. Our subsidiary, Aon Corporation, which we refer to as "Aon Delaware," also may from time to time offer and sell its debt securities in one or more series. Aon Delaware may guarantee all payments of principal, interest (if any), premium (if any), and other amounts due on any debt securities we issue. We may guarantee all payments of principal, interest (if any), premium (if any), and other amounts due on any debt securities Aon Delaware issues.

        This prospectus contains a general description of the securities that we or Aon Delaware may offer for sale. The specific terms of these securities will be contained in one or more supplements to this prospectus. Prospectus supplements may also add to, update or change information contained in this prospectus. You should read this prospectus and each applicable prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus and each applicable prospectus supplement, carefully before you invest.

         Investing in the securities described in this prospectus involves risk. You should carefully review the risks and uncertainties described under the heading "Risk Factors" beginning on page 5 of this prospectus and any risk factors set forth in each applicable prospectus supplement and in the documents incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement.

        Our executive offices are located at The Aon Centre, The Leadenhall Building, 122 Leadenhall Street, London, England, EC3V 4AN, and our telephone number is +44 20 7623 5500. Aon Delaware's executive offices are located at 200 East Randolph Street, Chicago, Illinois 60601, and Aon Delaware's telephone number is (312) 381-1000.

        Our Class A Ordinary Shares are listed on the New York Stock Exchange under the symbol "AON."


         Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.


        We or Aon Delaware may sell securities directly or to or through underwriters, dealers or agents on a delayed or continuous basis. For additional information on the method of sale, you should refer to "Plan of Distribution" in this prospectus. The names of any underwriters, dealers or agents involved in the sale of any securities and the specific manner in which securities may be offered, including any applicable purchase price, fee, commission or discount arrangement between or among them, will be set forth in a prospectus supplement applicable to the sale of those securities.


The date of this prospectus is September 3, 2015.

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ABOUT THIS PROSPECTUS

        This prospectus is part of an automatic shelf registration statement that we filed with the Securities and Exchange Commission, which we refer to as the "SEC," as a "well-known seasoned issuer" as defined in Rule 405 under the Securities Act of 1933, as amended, which we refer to as the "Securities Act." Under the automatic shelf registration process, we may, over time, offer any combination of debt securities, guarantees, preference shares, Class A Ordinary Shares, share purchase contracts and share purchase units described in this prospectus in one or more offerings; and our subsidiary, Aon Delaware, may, over time, offer any combination of debt securities and guarantees described in this prospectus in one or more offerings. In this prospectus we refer to the debt securities, guarantees, preference shares, Class A Ordinary Shares, share purchase contracts and share purchase units offered by us, and the debt securities and guarantees offered by Aon Delaware, collectively as the "securities." This prospectus provides you with a general description of the securities we or Aon Delaware may offer. Each time we or Aon Delaware offer securities, we or Aon Delaware will provide you with one or more prospectus supplements that will contain specific information about the terms of those securities. A prospectus supplement may also add to, update or change the information contained in this prospectus. Please carefully read this prospectus and each applicable prospectus supplement, together with the documents incorporated or deemed to be incorporated by reference in this prospectus and the additional information described below under the heading "Where You Can Find More Information."

        As allowed by SEC rules, this prospectus does not contain all the information you can find in the registration statement of which this prospectus is a part or the exhibits to the registration statement. For further information, we refer you to the registration statement of which this prospectus is a part, including its exhibits and schedules. Statements contained in this prospectus about the provisions or contents of any contract, agreement or other document are not necessarily complete. For each of these contracts, agreements or documents filed as an exhibit to the registration statement, we refer you to the actual exhibit for a more complete description of the matters involved. You should rely only on the information contained or incorporated or deemed to be incorporated by reference in this prospectus and each applicable prospectus supplement. We have not authorized anyone else to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information contained or incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement is accurate as of any date other than the date on the cover of the applicable document. Our, or Aon Delaware's, business, financial condition and results of operations may have changed since that date. Neither this prospectus nor any prospectus supplement constitutes an offer to sell securities or a solicitation of an offer to buy securities by anyone in any jurisdiction in which that offer or solicitation is not authorized, or in which the person is not qualified to do so or to any person to whom it is unlawful to make that offer or solicitation.

        This prospectus is not intended to be and is not a prospectus for purposes of the E.U. Prospectus Directive and/or the U.K. Financial Services Authority's Prospectus Rules.

        In this prospectus, we use the terms "Aon plc," "Aon," the "Company," "we," "us" and "our" and similar terms to refer to Aon plc and its subsidiaries, unless the context otherwise requires and except as otherwise described below. We use the term "Aon Delaware" to refer to Aon Corporation, our wholly-owned subsidiary. In 2012, we reincorporated in the United Kingdom and completed the reorganization of the corporate structure of the group of companies controlled by Aon Delaware, Aon plc's predecessor as the ultimate holding company of the Aon group. In this prospectus, we refer to this transaction as the "Redomestication." In the Redomestication, each issued and outstanding share of Aon Delaware common stock held by stockholders of Aon Delaware was converted into the right to receive one Class A Ordinary Share, nominal value $0.01 per share, of Aon plc, subject to the receipt of cash for fractional shares. Any references in this prospectus to "Aon," the "Company," "we,"

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"us" or "our" or any similar references relating to dates or periods before the Redomestication refer to Aon Delaware and its subsidiaries or, if the context so requires, Aon Delaware alone.


WHERE YOU CAN FIND MORE INFORMATION

        We are subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In accordance with the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC file number is 001-07933. You may read and copy this information at the following location of the SEC:

Public Reference Room
100 F Street, N.E.
Washington, D.C. 20549

        You may also obtain copies of these materials from this public reference room, at prescribed rates. Please call the SEC at 1-800-SEC-0330 for further information on its public reference room. The SEC also maintains a website that contains reports, proxy statements and other information about issuers, including us, who file electronically with the SEC. The address of that site is www.sec.gov. In addition, you may inspect our SEC filings at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.

        We make available free of charge most of our SEC filings through our Internet website (http://www.aon.com) as soon as reasonably practicable after we electronically file these materials with the SEC. You may access these SEC filings on our website. You may also find additional information about Aon plc, Aon Delaware and our other subsidiaries on our website. The information on, or accessible through, our website is not a part of this prospectus. You may also request a copy of our SEC filings, at no cost, by contacting us at the following address or telephone number:

Aon plc
The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN
Attention: Company Secretary
Telephone: +44 20 7623 5500 		  Aon Corporation
200 E. Randolph Street
Chicago, IL 60601
Attention: Company Secretary
Telephone: (312) 381-1000

        The SEC allows us to "incorporate by reference" into this prospectus the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. Any information incorporated this way is considered to be part of this prospectus, and any information that we file later with the SEC will automatically update and supersede this information. SEC rules and regulations also allow us to "furnish" rather than "file" certain reports and information with the SEC. Any such reports or information which we have indicated as being "furnished" shall not be deemed to be incorporated by reference in or otherwise become a part of this prospectus, regardless of when furnished to the SEC. We incorporate by reference the following documents that we have filed with the SEC and any future filings that we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the registration statement of which this prospectus is a part until we complete our sale of the securities to the public (other than information in those filings that is furnished, under applicable SEC rules, rather than filed):

    •
    Annual Report on Form 10-K for the year ended December 31, 2014 filed with the SEC on February 24, 2015;

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    •
    Definitive Proxy Statement on Schedule 14A filed with the SEC on April 24, 2015 (to the extent incorporated by reference in our Annual Report on Form 10-K for the year ended December 31, 2014);

    •
    Quarterly Report on Form 10-Q for the quarters ended March 31, 2015 filed with the SEC on May 1, 2015 and June 30, 2015 filed with the SEC on July 31, 2015;

    •
    Current Reports on Form 8-K dated January 16, 2015, February 2, 2015, February 20, 2015, May 13, 2015, June 17, 2015 and July 8, 2015; and

    •
    The description of the Common Stock contained in Item 12 of the Registration Statement on Form 10 filed by Aon Delaware with the SEC on February 19, 1980 (when Aon Delaware was known as Combined International Corporation), and any amendment or report which Aon Delaware or Aon plc has filed (or Aon plc will file after the date of the initial filing of the registration statement of which this prospectus is a part until it completes its sale of securities to the public) for the purpose of updating such description, including Aon plc's Current Report on Form 8-K dated April 2, 2012.


INFORMATION CONCERNING FORWARD-LOOKING STATEMENTS

        This prospectus, the prospectus supplements, the documents incorporated or deemed to be incorporated by reference in this prospectus or any prospectus supplement and other written or oral statements made from time to time by us may contain certain statements related to future results, or state our intentions, beliefs and expectations or predictions for the future which are forward-looking statements as that term is defined in the Private Securities Litigation Reform Act of 1995. Forward-looking statements relate to expectations or forecasts of future events. They use words such as "anticipate," "believe," "estimate," "expect," "forecast," "project," "intend," "plan," "probably," "potential," "looking forward" and other similar terms, and future or conditional tense verbs like "could," "may," "might," "should," "will" and "would." You can also identify forward-looking statements by the fact that they do not relate strictly to historical or current facts. For example, we may use forward-looking statements when addressing topics such as: market and industry conditions, including competitive and pricing trends; changes in our business strategies and methods of generating revenue; the development and performance of our services and products; changes in the composition or level of our revenues; our cost structure and the outcome of cost-saving or restructuring initiatives; the outcome of contingencies; dividend policy; the expected impact of acquisitions and dispositions; pension obligations; cash flow and liquidity; expected effective tax rate; future actions by regulators; and the impact of changes in accounting rules. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from either historical or anticipated results depending on a variety of factors. Potential factors that could impact results include:

    •
    general economic and political conditions in different countries in which we do business around the world;

    •
    changes in the competitive environment;

    •
    fluctuations in exchange and interest rates that could influence revenue and expense;

    •
    changes in global equity and fixed income markets that could affect the return on invested assets;

    •
    changes in the funding status of our various defined benefit pension plans and the impact of any increased pension funding resulting from those changes;

    •
    the level of our debt limiting financial flexibility;

    •
    rating agency actions that could affect our ability to borrow funds;

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    •
    the effect of the change in global headquarters and jurisdiction of incorporation, including differences in the anticipated benefits;

    •
    changes in estimates or assumptions on our financial statements;

    •
    limits on our subsidiaries to make dividend and other payments to us;

    •
    the impact of lawsuits and other contingent liabilities and loss contingencies arising from errors and omissions and other claims against us;

    •
    the impact of, and potential challenges in complying with, legislation and regulation in the jurisdictions in which we operate, particularly given the global scope of our businesses and the possibility of conflicting regulatory requirements across jurisdictions in which we do business;

    •
    the impact of any investigations brought by regulatory authorities in the United States (the "U.S."), the United Kingdom (the "U.K.") and other countries;

    •
    the impact of any inquiries relating to compliance with the U.S. Foreign Corrupt Practices Act and non-U.S. anti-corruption laws and with U.S. and non-U.S. trade sanctions regimes;

    •
    failure to protect intellectual property rights or allegations that we infringe on the intellectual property rights of others;

    •
    the effects of English law on our operating flexibility and the enforcement of judgments against us;

    •
    the failure to retain and attract qualified personnel;

    •
    international risks associated with our global operations;

    •
    the effect of natural or man-made disasters;

    •
    the potential of a system or network breach or disruption resulting in operational interruption or improper disclosure of personal data;

    •
    our ability to develop and implement new technology;

    •
    the damage to our reputation among clients, markets or third parties;

    •
    the actions taken by third parties that perform aspects of our business operations and client services;

    •
    the extent to which we manage certain risks created in connection with the various services, including fiduciary and investments and other advisory services and business process outsourcing services, among others, that we currently provide, or will provide in the future, to clients;

    •
    our ability to grow, develop and integrate companies that we acquire or new lines of business;

    •
    changes in commercial property and casualty markets, commercial premium rates or methods of compensation;

    •
    changes in the health care system or our relationships with insurance carriers; and

    •
    our ability to implement initiatives intended to yield cost savings and the ability to achieve those cost savings.

        Any or all of these forward-looking statements may turn out to be inaccurate, and there are no guarantees about our performance. The factors identified above are not exhaustive. We and our subsidiaries operate in a dynamic business environment in which new risks may emerge frequently. Accordingly, you should not place undue reliance on forward-looking statements, which speak only as of the dates on which they are made. We are under no obligation (and expressly disclaim any

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obligation) to update or alter any forward-looking statement that we may make from time to time, whether as a result of new information, future events or otherwise. Further information about factors that could materially affect us, including our results of operations and financial condition, is contained in the "Risk Factors" section in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2014. These factors may be revised or supplemented in subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K.


RISK FACTORS

        An investment in our securities involves significant risks. Before making an investment decision, you should carefully consider the risks and other information we include or incorporate by reference in this prospectus or an applicable prospectus supplement. In particular, you should consider the risk factors set forth in any applicable prospectus supplement and in our most recent Annual Report on Form 10-K filed with the SEC, as those risk factors may be amended or supplemented by subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K. The risks and uncertainties we have described are not the only ones facing us. Additional risks and uncertainties not known to us or that we deem immaterial may also affect our business operations.


THE COMPANY

        Our strategy is to be a preeminent professional service firm in the world, focused on the topics of risk and people. We are the leading global provider of risk management services, insurance and reinsurance brokerage, and human resource consulting and outsourcing, delivering distinctive client value via innovative and effective risk management and workforce productivity solutions. We serve clients through two operating segments, Risk Solutions and HR Solutions. Risk Solutions acts as an advisor and insurance and reinsurance broker, helping clients manage their risks via consultation, as well as negotiation and placement of insurance risk with insurance carriers through our global distribution network. HR Solutions partners with organizations to solve their most complex human capital and related financial challenges in the areas of health, retirement and talent. We are dedicated to improving business performance and our clients' employees' experience by designing, implementing, communicating and administering a wide range of human capital, retirement, investment management, health care, compensation and talent management strategies. As of December 31, 2014, we had approximately 69,000 employees and conducted our operations through various subsidiaries in more than 120 countries and sovereignties.

        Aon Delaware is an indirect, wholly-owned subsidiary of Aon plc. See "About this Prospectus" and "Where You Can Find More Information" in this prospectus.


USE OF PROCEEDS

        Unless we state otherwise in an applicable prospectus supplement, we expect to use the net proceeds from the sale of the securities described in this prospectus and an applicable prospectus supplement for general corporate purposes, including securities repurchase programs, capital expenditures, working capital, repayment or reduction of long term and short term debt and the financing of acquisitions. We may invest funds that we do not immediately require in short term marketable securities.

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RATIOS

        Our ratio of earnings to fixed charges for each of the periods indicated are as follows:

 
  Six months
ended
June 30, 		  Year ended December 31,  
 
  2015   2014   2014   2013   2012   2011   2010  

Ratio of earnings to fixed charges

    5.1     6.3     6.7     6.7     6.0     5.6     5.6  

        For this ratio, earnings consist of income from continuing operations before provision for income taxes and noncontrolling interest, less the earnings from unconsolidated entities under the equity method of accounting, and fixed charges. Fixed charges include interest expense and that portion of rental expense we deem to represent interest.


DESCRIPTION OF DEBT SECURITIES AND GUARANTEES

        In this description, references to "Aon," the "Company," "we," "us" or "our" refer only to Aon plc and not to any of our subsidiaries or affiliates, including Aon Delaware. Also, in this section, references to "holders" mean those who own debt securities and the related guarantees registered in their own names, on the books that the appropriate registrar for Aon plc or Aon Delaware, as the case may be, maintains for this purpose, and not those who own beneficial interests in debt securities and the related guarantees registered in "street name" or in debt securities and the related guarantees issued in book-entry form and held through one or more depositaries.

        This prospectus describes certain general terms and provisions of the debt securities that we may offer (the "Aon plc debt securities") or that Aon Delaware may offer (the "Aon Delaware debt securities") pursuant to this prospectus. When we or Aon Delaware offer to sell a particular series of debt securities, we or Aon Delaware will describe the specific terms of that series in one or more prospectus supplements. We or Aon Delaware will also indicate in an applicable prospectus supplement the extent to which the general terms and provisions described in this prospectus apply to a particular series of debt securities.

        Aon plc may issue Aon plc debt securities under either (1) a senior indenture (the "Aon plc senior indenture") among Aon plc, as issuer; Aon Delaware, as guarantor (the "Aon plc senior debt guarantor") in respect of certain series of Aon plc senior debt securities (as defined below); and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Aon plc senior debt trustee"), or (2) a subordinated indenture (the "Aon plc subordinated indenture") among Aon plc, as issuer; Aon Delaware, as guarantor (the "Aon plc subordinated debt guarantor" and, together with the Aon plc senior debt guarantor, the "Aon plc guarantor") in respect of certain series of Aon plc subordinated debt securities (as defined below); and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Aon plc subordinated debt trustee" and, together with the Aon plc senior debt trustee, the "Aon plc trustee"). Any Aon plc debt securities that we issue under the Aon plc senior indenture will constitute unsubordinated debt of Aon plc ("Aon plc senior debt securities") and will rank senior to any Aon plc debt securities that Aon plc issues under the Aon plc subordinated indenture ("Aon plc subordinated debt securities"). Any guarantee that Aon Delaware, as the Aon plc senior debt guarantor, issues under the Aon plc senior indenture will constitute an unsubordinated obligation of Aon Delaware (each, an "Aon plc senior debt guarantee") and will rank senior to any guarantee that Aon Delaware, as the Aon plc subordinated debt guarantor, issues under the Aon plc subordinated indenture (each, an "Aon plc subordinated debt guarantee" and, together with the Aon plc senior debt guarantees, the "Aon plc debt guarantees").

        Aon Delaware may issue Aon Delaware debt securities under either (1) a senior indenture (the "Aon Delaware senior indenture") among Aon Delaware, as issuer; Aon plc, as guarantor (the "Aon

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Delaware senior debt guarantor") in respect of certain series of Aon Delaware plc senior debt securities (as defined below); and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Aon Delaware senior debt trustee"), or (2) a subordinated indenture (the "Aon Delaware subordinated indenture") among Aon Delaware, as issuer; Aon plc, as guarantor (the "Aon Delaware subordinated debt guarantor" and, together with the Aon Delaware senior debt guarantor, the "Aon Delaware guarantor") in respect of certain series of Aon plc Delaware subordinated debt securities (as defined below); and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Aon Delaware subordinated debt trustee" and, together with the Aon Delaware senior debt trustee, the "Aon Delaware trustee"). Any Aon Delaware debt securities that Aon Delaware issues under the Aon Delaware senior indenture will constitute unsubordinated debt of Aon Delaware ("Aon Delaware senior debt securities") and will rank senior to any Aon Delaware debt securities that Aon Delaware issues under the Aon Delaware subordinated indenture ("Aon Delaware subordinated debt securities"). Any guarantee that Aon plc, as the Aon Delaware senior debt guarantor, issues under the Aon Delaware senior indenture will constitute an unsubordinated obligation of Aon plc (each, an "Aon Delaware senior debt guarantee") and will rank senior to any guarantee that Aon plc, as the Aon Delaware subordinated debt guarantor, issues under the Aon Delaware subordinated indenture (each, an "Aon Delaware subordinated debt guarantee" and, together with the Aon Delaware senior debt guarantees, the "Aon Delaware debt guarantees").

        In this description, the Aon plc debt securities and the Aon Delaware debt securities are sometimes referred to together as the "debt securities," the Aon plc senior debt securities and the Aon Delaware senior debt securities are sometimes referred to together as the "senior debt securities," the Aon plc subordinated debt securities and the Aon Delaware subordinated debt securities are sometimes referred together as the "subordinated debt securities," the Aon plc senior indenture and the Aon Delaware senior indenture are sometimes referred to together as the "senior indentures," the Aon plc subordinated indenture and the Aon Delaware subordinated indenture are sometimes referred to together as the "subordinated indentures," the senior indentures and the subordinated indentures are sometimes referred to together as the "indentures," the Aon plc debt guarantees and the Aon Delaware debt guarantees are sometimes referred to together as the "guarantees," each of Aon plc and Aon Delaware, in each case in its capacity as issuer of debt securities, is sometimes referred to as an "issuer," each of the Aon plc debt guarantor and the Aon Delaware debt guarantor is sometimes referred to as a "guarantor," each of the Aon plc senior trustee and the Aon Delaware senior trustee is sometimes referred to as a "senior trustee," each of the Aon plc subordinated trustee and the Aon Delaware subordinated trustee is sometimes referred to as a "subordinated trustee," and each of the senior trustee and the subordinated trustee is sometimes referred to as the "trustee."

        Each series of debt securities will be issued under the terms of an amendment or supplement to the applicable indenture that takes the form of a supplemental indenture or an officers' certificate delivered under the authority of resolutions adopted by the board of directors of the issuer and the terms of that indenture. The terms of any debt securities and, if applicable, the guarantees will include those stated in the applicable indenture and those made part of that indenture by reference to the Trust Indenture Act of 1939, which we refer to as the "Trust Indenture Act." The debt securities will be subject to all those terms, and we refer prospective purchasers and holders of debt securities and guarantees to the applicable indenture and the Trust Indenture Act for a statement of those terms.

        The following summaries of various provisions of the debt securities, the indentures and the guarantees are not complete. They do not describe certain exceptions and qualifications contained in the debt securities, the indentures and the guarantees, and are qualified in their entirety by reference to the provisions of the debt securities, the indentures and the guarantees. Unless we otherwise indicate, capitalized terms have the meanings assigned to them in the applicable indenture.

        An applicable prospectus supplement will specify the issuer, the guarantor, if any, whether the debt securities offered thereby will be senior or subordinated debt and whether the debt securities are to be

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guaranteed. The debt securities may be issued as part of units consisting of debt securities and other securities that Aon plc or Aon Delaware may offer under this prospectus. If debt securities are issued as part of units of debt securities and other securities that Aon plc or Aon Delaware may issue under this prospectus, an applicable prospectus supplement will describe any applicable material federal income tax consequences to holders.

General

        The debt securities will be unsecured obligations of the applicable issuer. None of the indentures limit the amount of debt securities that the issuer may issue. Each indenture provides that the issuer may issue debt securities from time to time in one or more series.

        The Aon plc senior debt securities and any Aon Delaware senior debt guarantee will be unsecured and unsubordinated obligations of Aon plc and will rank equally in right of payment with Aon plc's other unsecured and unsubordinated obligations. The Aon plc subordinated debt securities and any Aon Delaware subordinated debt guarantee will be subordinated obligations and will rank junior in right of payment, as more fully described in the applicable subordinated indenture, to Aon plc's senior indebtedness. Because Aon plc is a holding company, the holders of Aon plc debt securities and Aon Delaware debt guarantees may not receive assets of our subsidiaries in a liquidation or recapitalization until the claims of our subsidiaries' creditors and any insurance policyholders (in the case of our insurance subsidiaries) are paid, except to the extent that Aon plc may have recognized claims against such subsidiaries. In addition, certain regulatory laws limit some of Aon plc's subsidiaries from making payments to Aon plc of dividends and on loans and other transfers of funds.

        The Aon Delaware senior debt securities and any Aon plc senior debt guarantee will be unsecured and unsubordinated obligations of Aon Delaware and will rank equally in right of payment with Aon Delaware's other unsecured and unsubordinated obligations. The Aon Delaware subordinated debt securities and any Aon plc subordinated debt guarantee will be subordinated obligations and will rank junior in right of payment, as more fully described in the applicable subordinated indenture, to Aon Delaware's senior indebtedness. Because Aon Delaware is a holding company, the holders of Aon Delaware debt securities and Aon plc debt guarantees may not receive assets of Aon Delaware's subsidiaries in a liquidation or recapitalization until the claims of Aon Delaware's subsidiaries' creditors and any insurance policyholders (in the case of Aon Delaware's insurance subsidiaries) are paid, except to the extent that Aon Delaware may have recognized claims against such subsidiaries. In addition, certain regulatory laws limit Aon Delaware's subsidiaries from making payments to Aon Delaware of dividends and on loans and other transfers of funds.

        An applicable prospectus supplement will describe the specific terms relating to the series of debt securities being offered. These terms will include some or all of the following:

    •
    the name of the issuer of those debt securities and, if applicable, the name of the guarantor;

    •
    the title of the debt securities and whether the debt securities and, if applicable, the guarantee will be senior or subordinated;

    •
    the total principal amount of the debt securities;

    •
    whether the issuer will issue the debt securities in global form;

    •
    the maturity date or dates of the debt securities;

    •
    the interest rate or rates, if any (which may be fixed or variable), and, if applicable, the method used to calculate the interest rate;

    •
    the date or dates from which interest will accrue and on which interest will be payable and the date or dates used to determine the persons to whom interest will be paid;

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    •
    whether those debt securities will be guaranteed;

    •
    the place or places where principal of, and any premium or interest on, the debt securities will be paid;

    •
    whether (and if so, when and under what terms and conditions) the debt securities may be redeemed by the issuer at its option or at the option of the holders;

    •
    whether there will be a sinking fund;

    •
    if other than United States dollars and denominations of $1,000 or any multiple of $1,000, the currency or currencies or currency unit or currency units or composite currency and denomination in which the debt securities will be issued and in which payments will be made;

    •
    if other than the principal amount, the portion of the principal amount of the debt securities that the issuer will pay upon acceleration of the maturity date;

    •
    if the debt securities are not subject to defeasance by the issuer;

    •
    any deletions from, modifications of or additions to the events of default applicable to such debt securities;

    •
    whether the Aon plc debt securities will be exchangeable for or convertible into Class A Ordinary Shares of Aon plc or other securities or property and the terms and conditions governing such exchange or conversion;

    •
    whether the Aon Delaware debt securities will be exchangeable for or convertible into other securities or property and the terms and conditions governing such exchange or conversion; and

    •
    any other terms of the debt securities being offered.

        If an issuer denominates the purchase price of a series of debt securities in a non-United States dollar currency or currencies or a non-United States dollar currency unit or units, or if the principal of, any premium and interest on any series of debt securities is payable in a non-United States dollar currency or currencies or a non-United States dollar currency unit or units, an applicable prospectus supplement will describe any special United States federal income tax considerations.

        The issuer will pay principal and any interest, premium and additional amounts in the manner, at the places and subject to the restrictions set forth in the applicable debt securities, the applicable indenture and any applicable prospectus supplement. The issuer will not impose a service charge for any transfer or exchange of debt securities, but it may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed. (Section 2.05 of the indentures)

        Unless otherwise indicated in an applicable prospectus supplement, each issuer will issue debt securities in fully registered form, without coupons, in denominations of $1,000 or multiples of $1,000. (Sections 2.01 and 2.04 of the indentures)

        The issuer may offer to sell at a substantial discount below their stated principal amount, debt securities bearing no interest or interest at a rate that, at the time of issuance, is below the prevailing market rate. An applicable prospectus supplement will describe any special United States federal income tax considerations applicable to any of those discounted debt securities.

        The issuer may offer to sell debt securities in which the principal or interest will be determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. The principal amount or payment of interest applicable to those debt securities may be greater than or less than the amount of principal or interest otherwise payable, depending upon the value of the applicable currency, commodity, equity index or other factor on the date on which that principal or interest is due. An applicable prospectus supplement will describe the methods used to determine the amount of principal or interest payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on that date is linked and certain additional tax considerations applicable to those debt securities.

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        The indentures do not restrict our or Aon Delaware's ability to incur unsecured indebtedness or, subject to the restrictions described in "—Consolidation and Merger," to engage in reorganizations, restructurings, mergers, consolidations or similar transactions that have the effect of increasing our or Aon Delaware's indebtedness. Accordingly, unless an applicable prospectus supplement states otherwise, neither the debt securities nor any guarantees will contain any provisions that afford holders protection against the issuer or, if applicable, the guarantor incurring unsecured indebtedness or engaging in certain reorganizations or transactions. As a result, we or Aon Delaware could become highly leveraged.

Events of Default

        With respect to any series of debt securities, "event of default" means any of the following:

    •
    failure to pay the principal of, or any premium on, any debt security of that series when due;

    •
    failure to pay the interest or any additional amount on any debt security of that series when due and such failure continues for 30 days;

    •
    if that series of debt securities is guaranteed, the cessation of the guarantee of any debt security of that series to be in full force and effect, the declaration that the guarantee of those debt securities is null and void and unenforceable, the finding that the guarantee of those debt securities is invalid or the denial by the guarantor of its liability under its guarantee of those debt securities (other than by reason of release of the guarantor in accordance with the terms of the applicable indenture);

    •
    failure by the issuer or, if applicable, the guarantor to comply with any of its other covenants or agreements contained in the applicable indenture and the continuation of that failure for 90 days after written notice of that failure is given to the issuer or, if applicable, the guarantor from the applicable trustee (or to the issuer and, if applicable, the guarantor and that trustee from the holders of at least 25% in principal amount of the outstanding debt securities of that series);

    •
    certain events of bankruptcy, insolvency or reorganization relating to the issuer or, if applicable, the guarantor;

    •
    if that series of debt securities is convertible or exchangeable into Class A Ordinary Shares or any other securities or property, default in the delivery of any Class A Ordinary Shares, together with cash instead of fractional shares, or any other securities or property, as applicable, when required to be delivered upon conversion or exchange of any debt security of that series, and continuance of such default for a period of 10 business days; and

    •
    any other event of default provided with respect to debt securities of that series that is described in an applicable prospectus supplement. (Section 6.01 of the indentures)

        If there is a continuing event of default with respect to any outstanding series of debt securities, the applicable trustee or the holders of at least 25% of the outstanding principal amount of the debt securities of that series may require the issuer or, if applicable, the guarantor to pay immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and accrued and unpaid interest, if any, on all debt securities of that series. However, at any time after that trustee or the holders, as the case may be, declare that acceleration with respect to debt securities of any series, but before the applicable person has obtained a judgment or decree for payment of the money, the holders of a majority in principal amount of the outstanding debt securities of that series may, under certain conditions, cancel such acceleration if (i) all events of default (other than the non-payment of accelerated principal) with respect to debt securities of that series have been cured or (ii) all such events of default have been

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waived, each as provided in the applicable indenture. (Section 6.01 of the indentures) For information as to waiver of defaults, see "—Modification and Waiver." The particular provisions relating to acceleration of the maturity of a portion of the principal amount of such debt securities that are discount securities triggered by an event of default shall be described in an applicable prospectus supplement.

        Each indenture provides that, subject to the duties of the applicable trustee to act with the required standard of care if there is a continuing event of default, the applicable trustee need not exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities, unless those holders have offered to the applicable trustee security or indemnity reasonably satisfactory to it. (Section 7.02 of the indentures) Subject to those provisions for security or indemnification of the applicable trustee and certain other conditions, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee or exercising any trust or power that trustee holds, in each case, with respect to the debt securities of that series. (Section 6.06 of the indentures)

        No holder of any debt security of any series will have any right to institute any proceeding with respect to any indenture or for any remedy under the applicable indenture unless:

    •
    the applicable trustee has failed to institute the proceeding for 60 days after the holder has previously given that trustee written notice of a continuing event of default with respect to debt securities of that series;

    •
    the holders of at least 25% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable security or indemnity, to the applicable trustee to institute the proceeding as trustee; and

    •
    the applicable trustee has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request. (Section 6.04 of the indentures)

        However, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and any premium or interest on, that debt security on or after the date or dates they are to be paid as expressed in or pursuant to that debt security and to institute suit for the enforcement of any such payment. (Section 6.04 of the indentures)

        Each indenture provides that the applicable trustee shall provide notice to the holders of debt securities of any series within 90 days of the occurrence of any default with respect to debt securities of that series known to such trustee, except that the trustee need not provide holders of debt securities of any series notice of any default (other than the non-payment of principal or any premium, interest or additional amounts) if such default has been cured and the applicable trustee considers it in the interest of the holders of debt securities of that series not to provide that notice. (Section 6.07 of the indentures)

Consolidation and Merger

        Each indenture provides that each of the issuer and the guarantor may consolidate with or merge or convert into, or convey, transfer or lease its properties or assets substantially as an entirety to, another person without the consent of any debt security holders if, along with certain other conditions set forth in the indentures:

    •
    the issuer or the guarantor, as the case may be, is the successor person; or

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    •
    the successor person (if other than the issuer or the guarantor, as the case may be) formed by such consolidation or conversion or into which the issuer or the guarantor, as the case may be, merges or converts or which acquires or leases the assets of the issuer or the guarantor, as the case may be, substantially as an entirety:

    •
    in the case of Aon Delaware, is a corporation or other entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; and

    •
    in the case of either Aon plc or Aon Delaware, expressly assumes by supplemental indenture the obligations of the issuer or the guarantor, as the case may be, in relation to the debt securities or the guarantees, as the case may be, and under the applicable indenture;

    •
    immediately after giving effect to such transaction, there is no event of default, and no event which, after notice or passage of time or both, would become an event of default; and

    •
    Aon plc or Aon Delaware, as the case may be, has delivered to the trustee an officers' certificate stating that the transaction complies with the conditions set forth in the applicable indenture. (Section 11.01 of the indentures)

        It is possible that a merger, transfer, lease or other transaction could be treated for United States federal income tax purposes as a taxable exchange by the holders of debt securities or guarantees for new securities, which could result in holders of debt securities or guarantees recognizing taxable gain or loss for US federal income tax purposes. A merger, transfer, lease or other transaction could also have adverse tax consequences to holders of debt securities or guarantees under other tax laws to which the holders are subject.

Payment of Additional Amounts

        Payments made by Aon plc, Aon Delaware or a paying agent, as applicable, on the debt securities, or in respect to the guarantees, will be made free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed or levied by or on behalf of the government of the United Kingdom or the United States (each, a "Home Country Jurisdiction"), of any territory of a Home Country Jurisdiction or by any authority or agency therein or thereof having the power to tax, which we refer to collectively as "Taxes," unless Aon plc, Aon Delaware or a paying agent is required to withhold or deduct Taxes by law.

        If Aon plc, Aon Delaware or a paying agent is required to withhold or deduct any amount for or on account of Taxes from any payment made with respect to the debt securities or the guarantees, Aon plc or Aon Delaware, as applicable, will pay such additional amounts as may be necessary so that the net amount received by each beneficial owner (including additional amounts) after such withholding or deduction will not be less than the amount the beneficial owner would have received if the Taxes had not been withheld or deducted; provided that no additional amounts will be payable with respect to Taxes:

    •
    that would not have been imposed but for the existence of any present or former connection between such holder or beneficial owner of the debt securities or guarantees, as applicable (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such holder or beneficial owner, if such holder or beneficial owner is an estate, trust, partnership or corporation), and such Home Country Jurisdiction or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a

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      resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;

    •
    that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;

    •
    payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the debt securities or the guarantees, as applicable;

    •
    that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:

    •
    such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and

    •
    at least 30 days before the first payment date with respect to which such additional amounts shall be payable, Aon plc or Aon Delaware, as the case may be, has notified such recipient in writing that such recipient is required to comply with such requirement;

    •
    that would not have been imposed but for the presentation of the relevant debt security or guarantee (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;

    •
    that are imposed on a payment and are required to be made pursuant to European Council Directive 2003/48/EC or any other Directive amending, supplementing or replacing such Directive, or any law implementing or complying with, or introduced in order to conform to, such Directive or Directives;

    •
    that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), as of the issue date (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;

    •
    that would not have been imposed if presentation for payment of the relevant debt security or guarantee had been made to a paying agent other than the paying agent to which the presentation was made; or

    •
    any combination of the foregoing items;

nor shall additional amounts be paid with respect to any payment of the principal of or premium, if any, or interest, if any, on any debt security or any payment in respect of any guarantee to any such holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such additional amounts had it been the holder of the debt security.

        All references in this prospectus, other than under "—Defeasance" below, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any debt securities or any payment in respect of any guarantee shall be deemed to include additional amounts to the extent that, in that context, additional amounts are, were or would be payable.

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        Aon plc has agreed in the indentures that if it maintains a paying agent with respect to a particular series of Aon plc debt securities in any member state of the European Union, it will maintain a paying agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to European Council Directive 2003/48/EC or any other Directive amending, supplementing or replacing such Directive or any law implementing or complying with, or introduced in order to conform to such Directive or Directives, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such Directive.

        Aon plc's and Aon Delaware's obligations to pay additional amounts if and when due will survive the termination of the indentures and the payment of all other amounts in respect of the debt securities.

        If, as a result of Aon plc's or Aon Delaware's consolidation, merger with or conversion into a successor person organized under the laws of a jurisdiction other than the United Kingdom or the United States (or, in each case, any political subdivision or taxing authority thereof) as described under "—Consolidation and Merger" above, or the conveyance, transfer or lease by Aon plc or Aon Delaware of its assets substantially as an entirety to such successor person, and such an entity expressly assumes the obligations of Aon plc or Aon Delaware under the indentures and any outstanding debt securities or guarantees, as applicable, such successor person will pay additional amounts on the same basis as described above, except that references to a "Home Country Jurisdiction" will be treated as references to the United Kingdom, the United States and the country in which such successor person is organized or resident (or deemed resident for tax purposes).

Optional Tax Redemption

        The issuer may redeem any series of debt securities in whole, but not in part, at its option at any time prior to maturity, upon the giving of not less than 30 nor more than 90 days' notice of tax redemption to the holders, at a redemption price equal to the principal amount plus accrued and unpaid interest, if any, to the redemption date (except in the case of discounted debt securities, which may be redeemed at the redemption price specified by the terms of each series of such debt securities), if:

    •
    the issuer determines that, as a result of any change in, amendment to or announced proposed change in the laws or any regulations or rulings promulgated thereunder of a Home Country Jurisdiction (or of any political subdivision or taxing authority thereof) or, in the event of the assumption of the issuer's or the guarantor's obligations under the debt securities or guarantee, as applicable, by a successor person not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof as described under "—Consolidation and Merger" above), the jurisdiction in which such successor person is organized (or deemed resident for tax purposes), or any change in the application or official interpretation of such laws, regulations or rulings, or (in either case) any change in the application or official interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which any such jurisdiction is a party, which change, execution or amendment becomes effective on or after (i) the issue date of the applicable debt securities or guarantee, (ii) in the event of the assumption by a successor person of the issuer's or the guarantor's obligations under the applicable indenture and the debt securities or guarantee, as applicable, as described under "—Consolidation and Merger" above, under the laws of a jurisdiction other than a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), with respect to taxes imposed by such other jurisdiction, the date of the transaction resulting in such assumption or (iii) such other date specified with respect to the debt securities or guarantee, as applicable, and, in the case of each of (i), (ii) or (iii), the issuer, the guarantor or such successor person, as applicable, would be required to pay additional amounts (as described under "—Payment of Additional Amounts" above) with respect to that

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      series of debt securities or under a guarantee, as the case may be, on the next succeeding interest payment date for the relevant debt securities and the payment of such additional amounts cannot be avoided by the use of reasonable measures available to the issuer, the guarantor or such successor person, as applicable; or

    •
    the issuer determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Home Country Jurisdiction (or any political subdivision or taxing authority thereof) or, in the event of the assumption of the issuer's or the guarantor's obligations under the debt securities or guarantee, as applicable, by a successor person not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision thereof as described under "—Consolidation and Merger" above), the jurisdiction in which such successor person is organized (or deemed resident for tax purposes), which action is taken or brought on or after (i) the issue date of the applicable debt securities or guarantee, (ii) in the event of the assumption by a successor person of the issuer's or the guarantor's obligations under the applicable indenture and the debt securities or guarantee, as applicable, as described under "—Consolidation and Merger" above, under the laws of a jurisdiction other than a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), with respect to taxes imposed by such other jurisdiction, the date of the transaction resulting in such assumption or (iii) such other date specified with respect to the debt securities and, in the case of each of (i), (ii) and (iii), there is a substantial probability that the circumstances described above would exist.

        No notice of any such redemption may be given earlier than 90 days prior to the earliest date on which Aon plc, Aon Delaware or such successor person, as applicable, would be obligated to pay any additional amounts.

        Aon plc, Aon Delaware or such successor person will also pay to each holder, or make available for payment to each such holder, on the redemption date, any additional amounts (as described under "—Payment of Additional Amounts" above) resulting from the payment of such redemption price by it. Prior to the delivery of any notice of redemption, Aon plc, Aon Delaware or such successor person will deliver to the trustee an officer's certificate stating that it is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred, and in the case of a redemption based on an opinion of independent counsel referred to in the second bullet above, such independent counsel's opinion. Delivery of any notice of redemption will be conclusive and binding on the holders of the securities being redeemed.

        Any notice of redemption will be irrevocable once an officer's certificate has been delivered to the trustee.

Defeasance

        Defeasance and Discharge.     Unless the debt securities of any series provide otherwise, the issuer and, if applicable, the guarantor may be discharged from any and all obligations in respect of the debt securities of that series and any related guarantee, as applicable (except for certain obligations to register the transfer or exchange of debt securities of that series, to replace stolen, destroyed, lost or mutilated debt securities of that series, to maintain paying agencies, to execute and furnish definitive securities evidenced by temporary securities, to return moneys deposited with or paid to the trustee or any paying agent remaining unclaimed for three years, to compensate and indemnify the applicable trustee or to furnish such trustee (if that trustee is not the registrar) with the names and addresses of

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holders of debt securities of that series). This discharge, referred to as defeasance, will occur only if, among other things:

    •
    the issuer or, if applicable, the guarantor or both irrevocably deposit with the applicable trustee, in trust, money and/or securities of the government which issues the currency in which the debt securities of that series are payable or securities of agencies backed by the full faith and credit of that government, which, through the payment of interest and principal in accordance with their terms, will provide, in the opinion of a nationally recognized public accounting firm, enough money to pay each installment of principal of, and any premium and interest on, and any additional amounts known to be payable at the time of such defeasance and discharge and any mandatory sinking fund payments in respect of, the debt securities of that series on the applicable due dates for those payments in accordance with the terms of those debt securities; and

    •
    the issuer or, if applicable, the guarantor delivers to the applicable trustee an opinion of counsel confirming that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the discharge had not occurred.

        That opinion must state that the issuer or, if applicable, the guarantor has received from the United States Internal Revenue Service a ruling or, since the date of execution of the applicable indenture, there has been a change in the applicable United States federal income tax law, in any case, in support of that opinion. (Sections 13.02 and 13.04 of the indentures)

        In addition, the issuer or, if applicable, the guarantor or both may also obtain a discharge of either indenture with respect to all debt securities issued under that indenture and any related guarantee, as applicable, by depositing with the applicable trustee, in trust, enough money to pay all amounts due on the debt securities on the date those payments are due or upon redemption of all of those debt securities, so long as those debt securities are by their terms to become due and payable within one year or are to be called for redemption within one year. (Section 12.01 of the indentures)

        Defeasance of Certain Covenants and Certain Events of Default.     Unless the debt securities of any series provide otherwise, upon compliance with certain conditions:

    •
    the issuer and, if applicable, the guarantor may omit to comply with any provision of the applicable indenture (except for certain obligations to register the transfer or exchange of debt securities of that series, to replace stolen, destroyed, lost or mutilated debt securities of that series, to maintain paying agencies, to execute and furnish definitive securities evidenced by temporary securities, to return moneys deposited with or paid to the trustee or any paying agent on any debt security and not applied to payments on the debt securities but remaining unclaimed for three years, to punctually pay the principal of and premium or interest, if any, on the debt securities, to deliver to the trustee an annual statement as to default, to adhere to the covenants with respect to payment on the debt securities on default, to adhere to the resignation or removal procedures regarding the trustee, to compensate and indemnify the applicable trustee or to furnish that trustee (if that trustee is not the registrar) with the names and addresses of holders of debt securities of that series), including the covenant described under "—Consolidation and Merger"; and

    •
    any omission to comply with those covenants will not constitute an event of default with respect to the debt securities of that series ("covenant defeasance"). (Sections 13.03 and 13.04 of the indentures)

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        The conditions include, among other things:

    •
    irrevocably depositing with the applicable trustee, in trust, money and/or securities of the government which issues the currency in which the debt securities of that series are payable or securities of agencies backed by the full faith and credit of that government, which, through the payment of interest and principal in accordance with their terms, will provide, in the opinion of a nationally recognized public accounting firm, enough money to pay each installment of principal of, any premium and interest on, and any additional amounts known to be payable at the time of such covenant defeasance and any mandatory sinking fund payments in respect of, the debt securities of that series on the applicable due dates for those payments in accordance with the terms of those debt securities; and

    •
    delivering to the applicable trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the covenant defeasance had not occurred. (Section 13.04 of the indentures)

        Covenant Defeasance and Certain Other Events of Default.     If the issuer or, if applicable, the guarantor exercises or both exercise the option to effect a covenant defeasance with respect to the debt securities of any series as described above and the debt securities of that series are thereafter declared due and payable because of an event of default (other than an event of default caused by failing to comply with the covenants that are defeased), the amount of money and securities it has or they have deposited with the applicable trustee would be sufficient to pay amounts due on the debt securities of that series on their respective due dates but may not be sufficient to pay amounts due on the debt securities of that series at the time of acceleration resulting from that event of default. However, the issuer and, if applicable, the guarantor would remain liable for any shortfall.

Modification and Waiver

        Each indenture provides that the issuer and, if applicable, the guarantor may enter into supplemental indentures with the applicable trustee without the consent of the holders of debt securities to:

    •
    document the fact that a successor entity has assumed the issuer's or, if applicable, the guarantor's obligations;

    •
    add covenants or events of default or to surrender any right or power conferred upon the issuer or, if applicable, the guarantor for the benefit of the holders of debt securities;

    •
    add or change such provisions as are necessary to permit the issuance of global debt securities;

    •
    cure any ambiguity or correct any inconsistency in the indenture or in the terms of the debt securities as shall not adversely affect the interests of the holders of debt securities in any material respect;

    •
    conform the applicable indenture or the terms of the debt securities or guarantees to any terms set forth in this prospectus or an applicable prospectus supplement;

    •
    document the fact that a successor trustee has been appointed; or

    •
    establish the forms and terms of debt securities of any series. (Section 10.01 of the indentures)

        The issuer and, if applicable, the guarantor may enter into a supplemental indenture to modify an indenture with the consent of the applicable trustee and the holders of at least a majority in principal amount of outstanding debt securities of each series affected by such supplemental indenture. However,

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the issuer and, if applicable, the guarantor may not modify an indenture without the consent of the holders of all then-outstanding debt securities of the affected series issued under that indenture to:

    •
    extend the maturity date of, or change the due date of any installment of principal of or interest on, or payment of additional amounts with respect to, the debt securities of that series;

    •
    reduce the principal amount of, or any premium payable or interest rate on, the debt securities of that series;

    •
    reduce the amount due and payable upon acceleration or make payments thereon payable in any currency other than that provided in that debt security;

    •
    make any change that adversely affects the right, if any, to convert or exchange any debt security for shares or other securities or property in accordance with its terms;

    •
    impair the right to institute suit for the enforcement of any such payment on or after its due date; or

    •
    reduce the percentage in principal amount of outstanding debt securities of any series, the consent of whose holders is necessary to effect any such modification or amendment of the indenture, for waiver of compliance with certain covenants and provisions in the indenture or for waiver of certain defaults. (Section 10.02 of the indentures)

        The holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive any past default under the applicable indenture with respect to that series, except a default in the payment of the principal of or any premium or any interest on, any debt security of that series or in respect of a provision which under the applicable indenture cannot be modified or amended without the consent of the holder of each outstanding debt security of that affected series. (Section 6.09 of the indentures)

Global Securities

        The debt securities of a series may be issued in whole or in part in the form of one or more global certificates that the issuer will deposit with a depositary identified in an applicable prospectus supplement. Unless and until it is exchanged in whole or in part for the individual debt securities that it represents, a global security may not be transferred except as a whole:

    •
    by the applicable depositary to a nominee of the depositary;

    •
    by any nominee to the depositary itself or another nominee; or

    •
    by the depositary or any nominee to a successor depositary or any nominee of the successor.

        An applicable prospectus supplement will describe the specific terms of the depositary arrangement with respect to a series of debt securities. We anticipate that the following provisions will generally apply to depositary arrangements.

        When a global security is issued, the depositary for the global security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual debt securities represented by that global security to the accounts of persons that have accounts with the depositary ("participants"). Those accounts will be designated by the dealers, underwriters or agents with respect to the underlying debt securities or by the issuer if those debt securities are offered and sold directly by the issuer. Ownership of beneficial interests in a global security will be limited to participants or persons that may hold interests through participants. For interests of participants, ownership of beneficial interests in the global security will be shown on records maintained by the applicable depositary or its nominee. For interests of persons other than participants, that ownership information will be shown on the records of participants. Transfer of that ownership will be effected

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only through those records. The laws of some states require that certain purchasers of securities take physical delivery of securities in definitive form. These limits and laws may impair our ability to transfer beneficial interests in a global security.

        As long as the depositary for a global security, or its nominee, is the registered owner of that global security, the depositary or nominee will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture. Except as provided below, owners of beneficial interests in a global security:

    •
    will not be entitled to have any of the underlying debt securities registered in their names;

    •
    will not receive or be entitled to receive physical delivery of any of the underlying debt securities in definitive form; and

    •
    will not be considered the owners or holders under the indenture relating to those debt securities.

        Payments of the principal of, any premium on and any interest on individual debt securities represented by a global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee as the registered owner of the global security representing such debt securities. No issuer, guarantor, trustee, paying agent or registrar for the debt securities will be responsible for any aspect of the records relating to or payments made by the depositary or any participants on account of beneficial interests in the global security.

        It is expected that the depositary or its nominee, upon receipt of any payment of principal, any premium or interest relating to a global security representing any series of debt securities, immediately will credit participants' accounts with the payments. Those payments will be credited in amounts proportional to the respective beneficial interests of the participants in the principal amount of the global security as shown on the records of the depositary or its nominee. It is also expected that payments by participants to owners of beneficial interests in the global security held through those participants will be governed by standing instructions and customary practices. This is now the case with securities held for the accounts of customers registered in "street name." Those payments will be the sole responsibility of those participants.

        If the depositary for a series of debt securities is at any time unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed within 90 days, the issuer will issue individual debt securities of that series in exchange for the global security or securities representing that series. In addition, the issuer may at any time in its sole discretion determine not to have any debt securities of a series represented by one or more global securities. In that event, the issuer will issue individual debt securities of that series in exchange for the global security or securities. Furthermore, if specified in an applicable prospectus supplement, an owner of a beneficial interest in a global security may, on terms acceptable to the issuer, the trustee and the applicable depositary, receive individual debt securities of that series in exchange for those beneficial interests. The foregoing is subject to any limitations described in an applicable prospectus supplement. In any such instance, the owner of the beneficial interest will be entitled to physical delivery of individual debt securities equal in principal amount to the beneficial interest and to have the debt securities registered in its name. Those individual debt securities will be issued in any authorized denominations.

Subordination under the Aon plc Subordinated Debt Indenture

        The Aon plc subordinated debt securities and the Aon plc subordinated debt guarantees will be subordinate and junior in right of payment to all senior indebtedness of Aon plc and Aon Delaware, respectively, to the extent provided in the Aon plc subordinated debt indenture. (Sections 15.04 and 16.01 of the Aon plc subordinated debt indenture) Neither Aon plc, as issuer, nor Aon Delaware, as Aon plc subordinated debt guarantor, may make any payments on account of principal or any premium,

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redemption, interest or any other amount payable under the Aon plc subordinated debt securities or the Aon plc subordinated debt guarantees, as the case may be, at any time when it has defaulted with respect to payment of principal or any premium, interest, sinking fund or other payment due on its senior indebtedness. (Sections 15.05 and 16.02 of the Aon plc subordinated debt indenture) If either Aon plc, as issuer, or Aon Delaware, as Aon plc subordinated debt guarantor, makes any payment described in the foregoing sentence before all of its senior indebtedness is paid in full, such payment or distribution will be applied to pay off the applicable senior indebtedness which remains unpaid. Subject to the condition that the senior indebtedness of Aon plc or Aon Delaware, as the case may be, is paid in full, if any such payments are made on the senior indebtedness of Aon plc or Aon Delaware, as the case may be, as described above, the holders of Aon plc subordinated debt securities or Aon plc subordinated debt guarantees will be subrogated to the rights of the senior debt security holders of Aon plc or Aon Delaware, as the case may be. (Sections 15.06 and 16.03 of the Aon plc subordinated debt indenture)

        The Aon plc subordinated debt indenture defines the term "senior indebtedness" to mean:

    •
    all indebtedness of Aon plc or Aon Delaware, as the case may be, whether outstanding on the date of the Aon plc subordinated debt indenture or incurred later, for money borrowed (other than Aon plc subordinated debt securities or Aon Delaware subordinated debt securities, as the case may be) or otherwise evidenced by a note or similar instrument given in connection with the acquisition of any property or assets (other than inventory or other similar property acquired in the ordinary course of business), including securities or for the payment of money relating to a capitalized lease obligation (as defined in the Aon plc subordinated debt indenture);

    •
    any indebtedness of others described in the preceding bullet point which Aon plc or Aon Delaware, as the case may be, has guaranteed or which is otherwise its legal obligation;

    •
    any of Aon plc's or Aon Delaware's, as the case may be, indebtedness under interest rate swaps, caps or similar hedging agreements and foreign exchange contracts, currency swaps or similar agreements; and

    •
    renewals, extensions, refundings, restructurings, amendments and modifications of any indebtedness or guarantee described above. (Section 1.01 of the Aon plc subordinated debt indenture)

        "Senior indebtedness" does not include:

    •
    any indebtedness of Aon plc or Aon Delaware, as the case may be, to its subsidiaries; or

    •
    any indebtedness of Aon plc or Aon Delaware, as the case may be, which by its terms ranks equal or subordinated to the Aon plc subordinated debt securities or Aon plc subordinated debt guarantees in rights of payment or upon liquidation. (Section 1.01 of the Aon plc subordinated debt indenture)

        Because of the subordination provisions described above, some of the general creditors of Aon plc or Aon Delaware, as the case may be, may recover proportionately more than holders of the Aon plc subordinated debt securities or Aon plc subordinated debt guarantees if the assets of Aon plc or Aon Delaware, as the case may be, are distributed as a result of insolvency or bankruptcy. The Aon plc subordinated debt indenture provides that the subordination provisions will not apply to cash, properties and securities held in trust pursuant to the satisfaction and discharge and the legal defeasance provisions of the Aon plc subordinated debt indenture. (Section 16.03 of the Aon plc subordinated debt indenture) See "—Defeasance" for additional information regarding the legal defeasance provisions affecting the subordinated debt.

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        We will set forth (or incorporate by reference) the approximate amount of senior indebtedness outstanding for each of Aon plc and Aon Delaware as of a recent date in any prospectus supplement under which we offer to sell Aon plc subordinated debt securities.

Subordination under the Aon Delaware Subordinated Debt Indenture

        The Aon Delaware subordinated debt securities and the Aon Delaware subordinated debt guarantees will be subordinate and junior in right of payment to all senior indebtedness of Aon Delaware and Aon plc, respectively, to the extent provided in the Aon Delaware subordinated debt indenture. (Sections 15.05 and 16.01 of the Aon Delaware subordinated debt indenture) Neither Aon Delaware, as issuer, nor Aon plc, as Aon Delaware subordinated debt guarantor, may make any payments on account of principal or any premium, redemption, interest or any other amount payable under the Aon Delaware subordinated debt securities or the Aon Delaware subordinated debt guarantees, as the case may be, at any time when it has defaulted with respect to payment of principal or any premium, interest, sinking fund or other payment due on its senior indebtedness. (Sections 15.06 and 16.02 of the Aon Delaware subordinated debt indenture) If either Aon Delaware, as issuer, or Aon plc, as Aon Delaware subordinated debt guarantor, makes any payment described in the foregoing sentence before all of its senior indebtedness is paid in full, such payment or distribution will be applied to pay off the applicable senior indebtedness which remains unpaid. Subject to the condition that the senior indebtedness of Aon Delaware or Aon plc, as the case may be, is paid in full, if any such payments are made on the senior indebtedness of Aon Delaware or Aon plc, as the case may be, as described above, the holders of Aon Delaware subordinated debt securities or Aon Delaware subordinated debt guarantees will be subrogated to the rights of the senior debt security holders of Aon Delaware or Aon plc, as the case may be. (Sections 15.07 and 16.03 of the Aon Delaware subordinated debt indenture)

        The Aon Delaware subordinated debt indenture defines the term "senior indebtedness" to mean:

    •
    all indebtedness of Aon Delaware or Aon plc, as the case may be, whether outstanding on the date of the Aon Delaware subordinated debt indenture or incurred later, for money borrowed (other than Aon Delaware subordinated debt securities or Aon plc subordinated debt securities, as the case may be) or otherwise evidenced by a note or similar instrument given in connection with the acquisition of any property or assets (other than inventory or other similar property acquired in the ordinary course of business), including securities or for the payment of money relating to a capitalized lease obligation (as defined in the Aon Delaware subordinated debt indenture);

    •
    any indebtedness of others described in the preceding bullet point which Aon Delaware or Aon plc, as the case may be, has guaranteed or which is otherwise its legal obligation;

    •
    any of Aon Delaware's or Aon plc's, as the case may be, indebtedness under interest rate swaps, caps or similar hedging agreements and foreign exchange contracts, currency swaps or similar agreements; and

    •
    renewals, extensions, refundings, restructurings, amendments and modifications of any indebtedness or guarantee described above. (Section 1.01 of the Aon Delaware subordinated debt indenture)

        "Senior indebtedness" does not include:

    •
    any indebtedness of Aon Delaware or Aon plc, as the case may be, to its subsidiaries; or

    •
    any indebtedness of Aon Delaware or Aon plc, as the case may be, which by its terms ranks equal or subordinated to the Aon Delaware subordinated debt securities or Aon Delaware subordinated debt guarantees in rights of payment or upon liquidation. (Section 1.01 of the Aon Delaware subordinated debt indenture)

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        Because of the subordination provisions described above, some of the general creditors of Aon Delaware or Aon plc, as the case may be, may recover proportionately more than holders of the Aon Delaware subordinated debt securities or Aon Delaware subordinated debt guarantees if the assets of Aon plc or Aon Delaware, as the case may be, are distributed as a result of insolvency or bankruptcy. The Aon Delaware subordinated debt indenture provides that the subordination provisions will not apply to cash, properties and securities held in trust pursuant to the satisfaction and discharge and the legal defeasance provisions of the Aon Delaware subordinated debt indenture. (Section 16.03 of the Aon Delaware subordinated debt indenture) See "—Defeasance" for additional information regarding the legal defeasance provisions affecting the subordinated debt.

        Aon Delaware will set forth (or incorporate by reference) the approximate amount of senior indebtedness outstanding for each of Aon Delaware and Aon plc as of a recent date in any prospectus supplement under which Aon Delaware offers to sell Aon Delaware subordinated debt securities.

Guarantees

        Under each guarantee, the applicable guarantor will unconditionally guarantee the due and punctual payment of the principal, interest (if any), premium (if any) and all other amounts due on the applicable debt securities and under the indenture when the same shall become due and payable, whether at maturity, pursuant to mandatory or optional redemption or repayments, by acceleration or otherwise, in each case after any applicable grace periods or notice requirements, according to the terms of the applicable debt securities.

        The obligations of each guarantor under the guarantees will be unconditional, regardless of the enforceability of the applicable debt securities, and will not be discharged until all obligations under those debt securities and the applicable indenture are satisfied. Holders of the applicable debt securities may proceed directly against the guarantor under the applicable guarantee if an event of default affecting those debt securities occurs without first proceeding against the issuer.

Conversion Rights

        An applicable prospectus supplement will describe the terms and conditions, if any, on which debt securities being offered are convertible into Class A Ordinary Shares or other securities. Such terms will include the conversion price, the conversion period, provisions as to whether conversion will be at the issuer's option or the option of the holder, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of those debt securities.

Regarding the Trustee

        The issuers have commercial deposits and custodial arrangements with The Bank of New York Mellon Trust Company, N.A., or "BNYM," and may have borrowed money from BNYM in the normal course of business. The issuers may enter into similar or other banking relationships with BNYM in the future in the normal course of business. In addition, the issuers have provided brokerage and other insurance services in the ordinary course of their respective businesses for BNYM. BNYM may also act as trustee with respect to other debt securities one or both of the issuers have issued.

        BNYM will be serving as the trustee under the senior indentures and the subordinated indentures. Consequently, if an actual or potential event of default occurs with respect to either the senior debt securities or the subordinated debt securities, BNYM may be considered to have a conflicting interest for purposes of the Trust Indenture Act. In that case, BNYM may be required to resign under one or more indentures, and the applicable issuer and, if applicable, the applicable guarantor would be required to appoint a successor trustee. For this purpose, a "potential" event of default means an event that would be an event of default if the requirements for giving us or Aon Delaware default notice or for the default having to exist for a specific period of time were disregarded.

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Governing Law

        The debt securities, the guarantees and the indentures will be governed by and construed in accordance with the laws of the State of New York, except that, as the indentures specify, the subordination provisions of each series of Aon plc subordinated debt securities, any Aon Delaware subordinated debt guarantee and the Aon plc subordinated indenture, as they apply to Aon plc, will be governed by and construed in accordance with the laws of England and Wales (other than the appointment of any attorney-in-fact, which shall be governed by the laws of the State of New York).


DESCRIPTION OF PREFERENCE SHARES

        In this description, references to "Aon," the "Company," "we," "us" or "our" refer only to Aon plc and not to any of our subsidiaries or affiliates. Also, in this section, references to "holders" mean those who own preference shares registered in their own names, on the books that our registrar or we maintain for this purpose, and not those who own beneficial interests in preference shares registered in "street name" or in shares issued in book-entry form and held through one or more depositaries.

        The description set forth below is only a summary and is not complete. For more information regarding the preference shares which may be offered by this prospectus, please refer to the documents incorporated by reference in this prospectus, the applicable prospectus supplement or supplements, our articles of association ("Articles"), which are incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part, and any certificate of designations or other instrument establishing a series of preference shares, which will be filed with the SEC as an exhibit to or incorporated by reference in the registration statement at or prior to the time of the issuance of that series of preference shares.

        Our Articles authorize us to issue preference shares, in one or more series, with the number of shares of each series and the rights, preferences and limitations of each series to be determined by or pursuant to the authorization of our board of directors at the time of issue of the relevant preference shares. Our board of directors has been generally and unconditionally authorized subject to the provisions of our Articles and the UK Companies Act 2006 (as amended, the "Companies Act"), to allot and issue shares of the Company (or grant rights to subscribe for or to convert any security into shares in the Company), including preference shares, (1) up to an aggregate nominal amount of $900,000 and (2) in connection with an offer of equity securities (as defined in the Companies Act) by way of a rights issue, up to a further aggregate nominal amount of $900,000, all of which remain authorized for allotment and issuance. Our board of directors is also generally empowered to allot equity securities (as defined in the Companies Act) referred to above for cash, free from UK statutory pre-emption rights, provided that, in relation to (1) above, this power is limited to an aggregate nominal amount of $140,000. The authority and the power referred to above will both expire on the earlier of the next annual general meeting of shareholders of the Company or August 31, 2016. Our preference shares will likely be afforded preferences regarding dividends and liquidation rights over our Class A Ordinary Shares and may be issued as redeemable shares, with all such other rights, terms and conditions to be determined by or pursuant to the authorization of the board of directors of Aon plc at the time of issue of the relevant preference shares. If the relevant series of preference shares (with respect to both dividends and capital) are determined to have the right to participate only up to a specified amount in a distribution, they will not constitute "equity securities" for the purposes of the Companies Act.

        We will include the specific terms of each series of the preference shares being offered in an applicable prospectus supplement.

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DESCRIPTION OF CLASS A ORDINARY SHARES

        In this description, references to "Aon," the "Company," "we," "us" or "our" refer only to Aon plc and not to any of our subsidiaries or affiliates. Also, in this section, references to "holders" mean those who own ordinary shares of Aon registered in their own names, on the books that the registrar or we maintain for this purpose, and not those who own beneficial interests in ordinary shares registered in street name or in shares issued in book-entry form and held through one or more depositaries.

        The description of our Class A Ordinary Shares is incorporated into this prospectus by reference to the Current Report on Form 8-K12B filed with the SEC on April 2, 2012. Our Class A Ordinary Shares are listed on the New York Stock Exchange under the symbol "AON".

        For more information regarding the rights attached to the Class A Ordinary Shares which may be offered by this prospectus, please refer to the applicable prospectus supplement or supplements, our Articles, which are incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part, and any other instrument relating to our ordinary shares filed with the SEC as an exhibit to or incorporated by reference in the registration statement at or prior to the time of the issuance of our Class A Ordinary Shares.

        Our Articles authorize us to allot and issue Class A Ordinary Shares, and to grant rights to subscribe for or to convert or exchange any security into or for Class A Ordinary Shares, which shall have the same rights, preferences and limitations as the existing Class A Ordinary Shares. Our board of directors has been generally and unconditionally authorized subject to the provisions of our Articles and the Companies Act, to allot and issue shares of the Company (or grant rights to subscribe for or to convert any security into shares in the Company), including Class A Ordinary Shares, up to an aggregate nominal amount of $900,000 and, in connection with an offer of equity securities (as defined in the Companies Act, which would include the Class A Ordinary Shares) by way of a rights issue, up to a further aggregate nominal amount of $900,000, all of which remain authorized for allotment and issuance. Of this amount, all shares remain authorized for allotment and issuance. Our board of directors is also generally empowered to allot equity securities (as defined in the Companies Act) referred to above for cash free from UK statutory pre-emption rights, provided that, in relation to (1) above, this power is limited to an aggregate nominal amount of $140,000. The authority and the power referred to above will both expire on the earlier of the next annual general meeting of shareholders of the Company or August 31, 2016.


DESCRIPTION OF SHARE PURCHASE CONTRACTS
AND SHARE PURCHASE UNITS

        In this description, references to "Aon," the "Company," "we," "us" or "our" refer only to Aon plc and not to any of our subsidiaries. We may issue share purchase contracts, representing contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number of our Class A Ordinary Shares at a future date or dates. The price per share and the number of our Class A Ordinary Shares may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific formula set forth in the share purchase contracts. The share purchase contracts may be issued separately or as a part of share purchase units consisting of a share purchase contract and, as security for the holder's obligations to purchase our Class A Ordinary Shares under our Class A Ordinary Shares purchase contracts:

    •
    Aon plc senior debt securities or Aon plc subordinated debt securities;

    •
    preference shares; or

    •
    debt obligations of third parties, including Aon Delaware debt securities and U.S. Treasury securities.

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        The share purchase contracts may require us to make periodic payments to the holders of the share purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The share purchase contracts may require holders to secure their obligations in a specified manner and, in certain circumstances, we may deliver newly issued prepaid share purchase contracts upon release to a holder of any collateral securing such holder's obligations under the original share purchase contract.

        An applicable prospectus supplement will describe the terms of any share purchase contracts or share purchase units and, if applicable, prepaid share purchase contracts.


PLAN OF DISTRIBUTION

        We or Aon Delaware may sell the securities covered by this prospectus in any of the following ways (or in any combination):

    •
    through underwriters, dealers or remarketing firms;

    •
    directly to one or more purchasers, including to a limited number of institutional purchasers; or

    •
    through agents.

        Any such dealer or agent, in addition to any underwriter, may be deemed to be an underwriter within the meaning of the Securities Act. Any discounts or commissions received by an underwriter, dealer, remarketing firm or agent on the sale or resale of securities may be considered by the SEC to be underwriting discounts and commissions under the Securities Act.

        In addition, we or Aon Delaware may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If an applicable prospectus supplement so indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and that applicable prospectus supplement, sell securities covered by this prospectus and that applicable prospectus supplement. If so, the third party may use securities borrowed from us or Aon Delaware or others to settle such sales and may use securities received from us to close any related short positions. We or Aon Delaware may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities covered by this prospectus and that applicable prospectus supplement.

        The terms of the offering of the securities with respect to which this prospectus is being delivered will be set forth in the applicable prospectus supplement or supplements and will include, among other things:

    •
    the type of and terms of the securities offered;

    •
    the price of the securities;

    •
    the proceeds to us from the sale of the securities;

    •
    the names of the securities exchanges, if any, on which the securities are listed;

    •
    the names of any underwriters, dealers, remarketing firms or agents and the amount of securities underwritten or purchased by each of them;

    •
    any over-allotment options under which underwriters may purchase additional securities from us or Aon Delaware;

    •
    any underwriting discounts, agency fees or other compensation to underwriters or agents; and

    •
    any discounts or concessions which may be allowed or reallowed or paid to dealers.

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        If underwriters are used in the sale of securities, those securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters acting alone. Unless otherwise set forth in an applicable prospectus supplement, the obligations of the underwriters to purchase the securities described in an applicable prospectus supplement will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of those securities if any are purchased by them. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.

        If the dealers acting as principals are used in the sale of any securities, those securities will be acquired by the dealers, as principals, and may be resold from time to time in one or more transactions at varying prices to be determined by the dealer at the time of resale. The name of any dealer and the terms of the transactions will be set forth in an applicable prospectus supplement with respect to the securities being offered.

        Securities may also be offered and sold, if so indicated in an applicable prospectus supplement in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms, which we refer to as the "remarketing firms," acting as principals for their own accounts or as our agents, as applicable. Any remarketing firm will be identified and the terms of its agreement, if any, with us or Aon Delaware and its compensation will be described in an applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term is defined in the Securities Act in connection with the securities remarketed thereby.

        The securities may be sold directly by us or Aon Delaware or through agents designated by us from time to time. In the case of securities sold directly by us or Aon Delaware, no underwriters or agents would be involved. Any agents involved in the offer or sale of the securities in respect of which this prospectus is being delivered, and any commissions payable by us or Aon Delaware to such agents, will be set forth in an applicable prospectus supplement. Unless otherwise indicated in an applicable prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.

        We or Aon Delaware may authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase the securities to which this prospectus and the applicable prospectus supplement or supplements relate from us at the public offering price set forth in an applicable prospectus supplement plus, if applicable, accrued interest, pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Those contracts will be subject only to those conditions set forth in an applicable prospectus supplement, and an applicable prospectus supplement will set forth the commission payable for solicitation of those contracts.

        Agents, dealers, underwriters and remarketing firms may be entitled, under agreements entered into with us, Aon Delaware or both, to indemnification by us, Aon Delaware or both against certain civil liabilities, including liabilities under the Securities Act, or to contribution to payments they may be required to make in respect thereof. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary course of business.

        Unless otherwise indicated in an applicable prospectus supplement, all securities offered by this prospectus, other than our Class A Ordinary Shares, which are listed on the New York Stock Exchange, will be new issues with no established trading market. We or Aon Delaware, as applicable, may elect to list any of the securities on one or more exchanges, but unless otherwise specified in an applicable prospectus supplement, neither we nor Aon Delaware shall be obligated to do so. In addition,

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underwriters will not be obligated to make a market in any securities. No assurance can be given regarding the activity of trading in, or liquidity of, any securities.

        Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying securities so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.


VALIDITY OF SECURITIES

        Sidley Austin  LLP will be requested to advise us with respect to the validity under New York law and English law of any securities that may be offered pursuant to this prospectus and one or more applicable prospectus supplements.


EXPERTS

        The consolidated financial statements of Aon plc appearing in Aon plc's Annual Report (Form 10-K) for the year ended December 31, 2014, and the effectiveness of Aon plc's internal control over financial reporting as of December 31, 2014, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements and Aon plc management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2014 are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14.    Other Expenses of Issuance and Distribution.

        An estimate of the various expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement.

Item 15.    Indemnification of Directors and Officers.

Aon plc

        Aon plc is a public limited company incorporated under the law of England and Wales. Chapter 7 of Part 10 of the Companies Act contains, among other things, provisions regarding directors' liability and the extent to which a company may indemnify its directors. All statutory references in this Item 15 are to the Companies Act.

        Section 232(1) makes void any provision that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to a company.

        Section 232(2) makes similar provisions in respect of indemnities provided for a director, subject to three permitted types of indemnity, each discussed more fully below:

    (a)
    liability insurance within Section 233;

    (b)
    qualifying third party indemnity provisions falling within Section 234; and

    (c)
    qualifying pension scheme indemnity provisions falling within Section 235.

        Section 233 permits liability insurance, commonly known as directors' and officers' liability insurance, purchased and maintained by a company against liability for negligence, default, breach of duty or breach of trust in relation to the company.

        Section 234 allows for Aon plc to provide an indemnity against liability incurred by a director to someone other than Aon plc or an associated company. Such an indemnity does not permit indemnification against liability to pay criminal fines or civil penalties to a regulatory authority or the costs of an unsuccessful defense of criminal proceedings or an unsuccessful defense of civil proceedings brought by a company or its associated companies or in connection with an application for relief under Sections 661(3) or (4) (power of court to grant relief in case of acquisition of shares by innocent nominee) or 1157 (general power of court to grant relief in case of honest and reasonable conduct) of the Companies Act.

        Section 235 allows Aon plc to provide an indemnity to a director that is a trustee of an occupational pension scheme, with such indemnity to protect against liability incurred in connection with the Company's activities as trustee of the scheme. In the circumstances, this is not relevant to the directors of Aon plc.

        Any indemnity provided under Section 234 or Section 235 must be disclosed in Aon plc's annual report in accordance with Section 236 and copies of such indemnification provisions made available for inspection in accordance with Section 237 (and every member has a right to inspect without charge and, on request and on payment of such fee as may be prescribed, to be provided with such copies under Section 238).

        Conduct of a director amounting to negligence, default, breach of duty or breach of trust in relation to the Company can be ratified, in accordance with Section 239, by a resolution of the

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members of the Company, disregarding the votes of the director (if a member) and any connected member.

        To the extent permitted by the Companies Act (as amended from time to time) and without prejudice to any indemnity to which any person may otherwise be entitled, Aon plc's articles of association provide for the indemnification of every director or other officer of the Company (other than any person (whether an officer or not) engaged by the Company as auditor) out of the assets of the Company against any liability incurred by him for negligence, default, breach of duty or breach of trust in relation to the affairs of the Company.

        Where a person is indemnified against any liability as described in this Item 15, such indemnity shall extend, to the extent permitted by the Companies Act, to all costs, charges, losses, expenses and liabilities incurred by him in relation thereto.

        In addition, to the fullest extent permitted by law and without prejudice to any other indemnity to which the director may otherwise be entitled, Aon plc has entered into and, in the future, will enter into deeds of indemnity with its directors and certain of its officers. Under the deeds of indemnity, Aon plc will indemnify such directors and officers to the fullest extent permitted or authorized by the Companies Act, as it may from time to time be amended, or by any other statutory provisions authorizing or permitting such indemnification.

        Aon plc expects that any underwriting agreement or distribution agreement relating to the securities will provide for indemnification of directors and officers of Aon plc by the underwriters or agents, as the case may be, against certain liabilities.

        The directors of Aon plc will also be entitled to cover pursuant to the Aon group's directors' and officers' liability insurance.

Aon Delaware

        Aon Delaware was organized under and is subject to the Delaware General Corporation Law. Delaware law provides that officers and directors may receive indemnification from their corporations for certain actual or threatened lawsuits. The Delaware law sets out the standard of conduct which the officers and directors must meet in order to be indemnified, the parties who are to determine whether the standard has been met, and the types of expenditures which will be indemnified. Delaware law further provides that a corporation may purchase indemnification insurance, such insurance providing indemnification for the officers and directors whether or not the corporation would have the power to indemnify them against such liability under the provisions of Delaware law.

        Article Seventh of Aon Delaware's Amended and Restated Certificate of Incorporation, as amended (the "Certificate of Incorporation"), provides that it will indemnify its officers and directors (including such persons serving as officers and directors of certain subsidiaries) to the full extent permitted by Delaware law.

        Furthermore, Aon Delaware is covered by insurance which will reimburse it within the policy limits for amounts it is obligated to pay in lawsuits involving officers and directors serving in such capacities in which the damages, judgments, settlements, costs, charges or expenses incurred in connection with the defense of the action, suit or proceeding are reimbursable pursuant to the law and the Certificate of Incorporation.

        Aon Delaware expects that any underwriting agreement or distribution agreement relating to the securities will provide for indemnification of directors and officers of Aon Delaware by the underwriters or agents, as the case may be, against certain liabilities.

        Aon Delaware has also entered into separate indemnification agreements with certain of its officers, which agreements provide specific contractual assurance with respect to the existing

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indemnification and expense advancement rights extended to such officers and directors under Article Seventh of the Certificate of Incorporation. Specifically, the indemnification agreements provide assurance that no future amendment to or revocation of the Certificate of Incorporation will adversely affect any existing right of an officer or director with respect to any event that occurred prior to such amendment or revocation (regardless of when any proceeding related to such event is first threatened, commenced or completed).

        The directors of Aon Delaware will also be entitled to cover pursuant to the Aon group's directors' and officers' liability insurance.

Item 16.    Exhibits.

Number   Description
  1 * Form of Underwriting Agreement
        
  2.1   Agreement and Plan of Merger and Reorganization, dated as of January 12, 2012, between Aon Corporation and Market Mergeco Inc. (incorporated by reference to Annex A to the Registration Statement on Form S-4/A (File No. 333-178991) filed by Aon Global Limited on February 6, 2012)
        
  2.2   Amendment No. 1 to Merger Agreement, dated as of March 12, 2012, between Aon Corporation and Market Mergeco Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Aon Corporation on March 12, 2012)
        
  3.1   Articles of Association of Aon plc, dated March 30, 2012 (incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K filed by Aon plc on April 2, 2012)
        
  3.2   Amended and Restated Certificate of Incorporation of Aon Corporation (incorporated by reference to Exhibit 3.2 on Form S-3 (File No. 333-183686) filed by Aon plc on August 31, 2012)
        
  3.3   Amended and Restated Bylaws of Aon Corporation (incorporated by reference to Exhibit 3.3 on Form S-3 (File No. 333-183686) filed by Aon plc on August 31, 2012)
        
  4.1 * Form of Aon plc Preference Share Certificate
        
  4.2   Form of Indenture relating to Aon plc's senior debt securities (including senior debt guarantee of Aon Corporation) (the "Aon plc Senior Indenture")
        
  4.3   Form of Indenture relating to Aon plc's subordinated debt securities (including subordinated debt guarantee of Aon Corporation) (the "Aon plc Subordinated Indenture")
        
  4.4   Form of Indenture relating to Aon Corporation's senior debt securities (including senior debt guarantee of Aon plc) (the "Aon Corporation Senior Indenture")
        
  4.5   Form of Indenture relating to Aon Corporation's subordinated debt securities (including subordinated debt guarantee of Aon plc) (the "Aon Corporation Subordinated Indenture")
        
  4.6 * Form of Aon plc Senior Note
        
  4.7 * Form of Aon plc Subordinated Note
        
  4.8 * Form of Aon Corporation Senior Note
        
  4.9 * Form of Aon Corporation Subordinated Note
        
  4.10 * Form of Share Purchase Contract
        
  4.11 * Form of Share Purchase Unit
 
   

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Number   Description
  4.12   Amended and Restated Indenture, dated as of May 20, 2015, among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (amending and restating the Indenture, dated as of May 24, 2013, between Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A.) (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Aon plc on May 20, 2015)
        
  5.1   Opinion of Sidley Austin LLP
        
  5.2   Opinion of Sidley Austin LLP
        
  12.1   Statements of computation of ratio of earnings to fixed charges (previously filed as exhibits to Aon plc's Quarterly Report on Form 10-Q for the quarter ended June 30, 2015 and Annual Report on Form 10-K for the year ended December 31, 2014, and incorporated herein by reference)
        
  23.1   Consent of Ernst & Young LLP
        
  23.2   Consent of Sidley Austin LLP (included in Exhibit 5.1)
        
  23.3   Consent of Sidley Austin LLP (included in Exhibit 5.2)
        
  24.1   Powers of Attorney for Aon plc and Aon Corporation
        
  25.1   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon plc Senior Indenture
        
  25.2   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon plc Subordinated Indenture
        
  25.3   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon Corporation Senior Indenture
        
  25.4   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon Corporation Subordinated Indenture
        
  25.5   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the Amended and Restated Indenture, dated as of May 20, 2015, among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (amending and restating the Indenture, dated as of May 24, 2013, between Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A.)
*
To be filed as an exhibit to a Current Report on Form 8-K and incorporated by reference or by post-effective amendment.

Item 17.    Undertakings.

        The undersigned Registrant hereby undertakes:

    (1)
    To file, during any period in which offers or sales are being made, a post effective amendment to this registration statement:

    (i)
    To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

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      (ii)
      To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and

      (iii)
      To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

    provided , however , that the undertakings set forth in paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

    (2)
    That, for the purpose of determining any liability under the Securities Act of 1933, each such post effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

    (3)
    To remove from registration by means of a post effective amendment any of the securities being registered which remain unsold at the termination of the offering.

    (4)
    That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

    (i)
    Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

    (ii)
    Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided , however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference in the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the

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        registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

    (5)
    That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

    (i)
    any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;

    (ii)
    any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;

    (iii)
    the portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and

    (iv)
    any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

    (6)
    That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

    (7)
    Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

    (8)
    To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939.

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant specified below certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this registration statement on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, Illinois, as of September 3, 2015.

    AON plc

 
 
By:
 
/s/ Peter Lieb
Peter Lieb
Executive Vice President, General Counsel and Company Secretary

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated as of September 3, 2015.

Signature
 
Title

 
 
 
 
 
*
Gregory C. Case 		  President, Chief Executive Officer and Director (Principal Executive Officer)

/s/ Christa Davies
Christa Davies
 
Executive Vice President and Chief Financial
Officer (Principal Financial Officer)

/s/ Laurel Meissner
Laurel Meissner
 
Senior Vice President and Global Controller
(Principal Accounting Officer)

*
Lester B. Knight
 
Non-Executive Chairman

*
Fulvio Conti
 
Director

*
Cheryl A. Francis
 
Director

*
James W. Leng
 
Director

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Signature
 
Title

 
 
 
 
 
*
J. Michael Losh 		  Director

*
Robert S. Morrison
 
Director

*
Richard B. Myers
 
Director

*
Richard C. Notebaert
 
Director

*
Gloria Santona
 
Director

*
Carolyn Y. Woo
 
Director

/s/ Peter Lieb
Peter Lieb
 
Executive Vice President, General Counsel and
Company Secretary and Authorized Representative
in the United States

*By:
 
/s/ Peter Lieb
Peter Lieb
Attorney-in-Fact
 
 

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant specified below certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this registration statement on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, Illinois, as of September 3, 2015.

    AON CORPORATION

 
 
By:
 
/s/ Matthew M. Rice
Matthew M. Rice
Vice President and Secretary

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated as of September 3, 2015.

Signature
 
Title

 
 
 
 
 
*
Gregory C. Case 		  Chief Executive Officer
(Principal Executive Officer)

/s/ Christa Davies
Christa Davies
 
Executive Vice President and Chief Financial
Officer (Principal Financial Officer)

/s/ Laurel Meissner
Laurel Meissner
 
Senior Vice President, Global Controller and
Director (Principal Accounting Officer)

/s/ Michelle Ley
Michelle Ley
 
Director

/s/ Matthew M. Rice
Matthew M. Rice
 
Director

*By:
 
/s/ Peter Lieb
Peter Lieb
Attorney-in-Fact
 
 

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EXHIBIT INDEX

TO REGISTRATION STATEMENT ON FORM S-3

Aon plc
Aon Corporation

Number   Description
  1 * Form of Underwriting Agreement
        
  2.1   Agreement and Plan of Merger and Reorganization, dated as of January 12, 2012, between Aon Corporation and Market Mergeco Inc. (incorporated by reference to Annex A to the Registration Statement on Form S-4/A (File No. 333-178991) filed by Aon Global Limited on February 6, 2012)
        
  2.2   Amendment No. 1 to Merger Agreement, dated as of March 12, 2012, between Aon Corporation and Market Mergeco Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Aon Corporation on March 12, 2012)
        
  3.1   Articles of Association of Aon plc, dated March 30, 2012 (incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K filed by Aon plc on April 2, 2012)
        
  3.2   Amended and Restated Certificate of Incorporation of Aon Corporation (incorporated by reference to Exhibit 3.2 on Form S-3 (File No. 333-183686) filed by Aon plc on August 31, 2012)
        
  3.3   Amended and Restated Bylaws of Aon Corporation (incorporated by reference to Exhibit 3.3 on Form S-3 (File No. 333-183686) filed by Aon plc on August 31, 2012)
        
  4.1 * Form of Aon plc Preference Share Certificate
        
  4.2   Form of Indenture relating to Aon plc's senior debt securities (including senior debt guarantee of Aon Corporation) (the "Aon plc Senior Indenture")
        
  4.3   Form of Indenture relating to Aon plc's subordinated debt securities (including subordinated debt guarantee of Aon Corporation) (the "Aon plc Subordinated Indenture")
        
  4.4   Form of Indenture relating to Aon Corporation's senior debt securities (including senior debt guarantee of Aon plc) (the "Aon Corporation Senior Indenture")
        
  4.5   Form of Indenture relating to Aon Corporation's subordinated debt securities (including subordinated debt guarantee of Aon plc) (the "Aon Corporation Subordinated Indenture")
        
  4.6 * Form of Aon plc Senior Note
        
  4.7 * Form of Aon plc Subordinated Note
        
  4.8 * Form of Aon Corporation Senior Note
        
  4.9 * Form of Aon Corporation Subordinated Note
        
  4.10 * Form of Share Purchase Contract
        
  4.11 * Form of Share Purchase Unit
        
  4.12   Amended and Restated Indenture, dated as of May 20, 2015, among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (amending and restating the Indenture, dated as of May 24, 2013, between Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A.) (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Aon plc on May 20, 2015)
        
  5.1   Opinion of Sidley Austin LLP
        
  5.2   Opinion of Sidley Austin LLP
 
   

Table of Contents

Number   Description
  12.1   Statements of computation of ratio of earnings to fixed charges (previously filed as exhibits to Aon plc's Quarterly Report on Form 10-Q for the quarter ended June 30, 2015 and Annual Report on Form 10-K for the year ended December 31, 2014, and incorporated herein by reference)
        
  23.1   Consent of Ernst & Young LLP
        
  23.2   Consent of Sidley Austin LLP (included in Exhibit 5.1)
        
  23.3   Consent of Sidley Austin LLP (included in Exhibit 5.2)
        
  24.1   Powers of Attorney for Aon plc and Aon Corporation
        
  25.1   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon plc Senior Indenture
        
  25.2   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon plc Subordinated Indenture
        
  25.3   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon Corporation Senior Indenture
        
  25.4   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the form of the Aon Corporation Subordinated Indenture
        
  25.5   Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. for the Amended and Restated Indenture, dated as of May 20, 2015, among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., as trustee (amending and restating the Indenture, dated as of May 24, 2013, between Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A.)
*
To be filed as an exhibit to a Current Report on Form 8-K and incorporated by reference or by post-effective amendment.



Exhibit 4.2

 

 

AON PLC,

Company

 

AON CORPORATION,

Guarantor

 

and

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

Trustee

 

INDENTURE

 

Dated as of                                             

 

Debt Securities

 

 


 

CROSS-REFERENCE SHEET*

 

BETWEEN

 

Provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939 and the within Indenture among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., Trustee:

 

310

(a) (1) and (2)

7.09

310

(a) (3) and (4)

Not applicable

310

(b)

7.08 and 7.10 (b)

310

(c)

Not applicable

311

(a) and (b)

7.13

311

(c)

Not applicable

312

(a)

5.01 and 5.02 (a)

312

(b) and (c)

5.02 (b) and (c)

313

(a), (b)(2) and (c)

5.04 (a)

313

(b) (1)

Not applicable

313

(d)

5.04 (b)

314

(a)

5.03

314

(b)

Not applicable

314

(c) (1) and (2)

16.04

314

(c) (3)

Not applicable

314

(d)

Not applicable

314

(e)

16.04

314

(f)

Not applicable

315

(a), (c) and (d)

7.01

315

(b)

6.07

315

(e)

6.08

316

(a) (1)

6.01 and 6.06

316

(a) (2)

Omitted

316

(a) last sentence

8.04

316

(b)

6.04

317

(a)

6.02

317

(b)

4.03 (a)

318

(a)

16.06

 

* This Cross-Reference Sheet is not part of the Indenture.

 

i


 

TABLE OF CONTENTS

 

ARTICLE ONE

DEFINITIONS

 

 

 

Section 1.01.

Definitions

1

 

 

 

ARTICLE TWO

ISSUE, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES

 

 

 

Section 2.01.

Amount Unlimited; Issuable in Series

8

Section 2.02.

Form of Trustee’s Certificate of Authentication

11

Section 2.03.

Form, Execution, Authentication, Delivery and Dating of Securities

11

Section 2.04.

Currency; Denominations; Regular Record Date

13

Section 2.05.

Exchange and Registration of Transfer of Securities

14

Section 2.06.

Temporary Securities

15

Section 2.07.

Mutilated, Destroyed, Lost or Stolen Securities

16

Section 2.08.

Securities in Global Form

17

Section 2.09.

Cancellation

17

Section 2.10.

Computation of Interest

17

Section 2.11.

CUSIP Numbers

17

 

 

 

ARTICLE THREE

REDEMPTION OF SECURITIES

 

 

 

Section 3.01.

Redemption of Securities; Applicability of Article

17

Section 3.02.

Tax Redemption

17

Section 3.03.

Notice of Redemption; Selection of Securities

19

Section 3.04.

Payment of Securities Called for Redemption

20

 

 

 

ARTICLE FOUR

PARTICULAR COVENANTS OF THE COMPANY

 

 

 

Section 4.01.

Payment of Principal, Premium and Interest

21

Section 4.02.

Offices for Notices and Payments, etc.

21

Section 4.03.

Provisions as to Paying Agent

22

Section 4.04.

Statement by Officers as to Default

23

Section 4.05.

Payment of Additional Amounts

23

 

ARTICLE FIVE

SECURITYHOLDER LISTS AND REPORTS BY THE

COMPANY AND THE TRUSTEE

 

 

 

Section 5.01.

Securityholder Lists

26

Section 5.02.

Preservation and Disclosure of Lists

26

Section 5.03.

Reports by the Company

28

Section 5.04.

Reports by the Trustee

28

 

ii


 

ARTICLE SIX

REMEDIES ON DEFAULT

 

 

 

Section 6.01.

Events of Default

29

Section 6.02.

Payment of Securities on Default; Suit Therefor

31

Section 6.03.

Application of Moneys Collected by Trustee

33

Section 6.04.

Proceedings by Securityholders

34

Section 6.05.

Remedies Cumulative and Continuing

35

Section 6.06.

Direction of Proceedings

35

Section 6.07.

Notice of Defaults

35

Section 6.08.

Undertaking to Pay Costs

35

Section 6.09.

Waiver of Past Defaults

36

 

ARTICLE SEVEN

CONCERNING THE TRUSTEE

 

 

 

Section 7.01.

Duties and Responsibilities of Trustee

36

Section 7.02.

Reliance on Documents, Opinions, etc.

37

Section 7.03.

No Responsibility for Recitals, etc.

39

Section 7.04.

Ownership of Securities

39

Section 7.05.

Moneys to Be Held in Trust

39

Section 7.06.

Compensation, Indemnification and Expenses of Trustee

39

Section 7.07.

Officers’ Certificate as Evidence

40

Section 7.08.

Conflicting Interest of Trustee

40

Section 7.09.

Eligibility of Trustee

41

Section 7.10.

Resignation or Removal of Trustee

41

Section 7.11.

Acceptance by Successor Trustee

42

Section 7.12.

Successor by Merger, etc.

43

Section 7.13.

Limitations on Rights of Trustee as Creditor

43

 

 

 

ARTICLE EIGHT

CONCERNING THE SECURITYHOLDERS

 

 

 

Section 8.01.

Action by Securityholders

44

Section 8.02.

Proof of Ownership

44

Section 8.03.

Who Are Deemed Absolute Owners

44

Section 8.04.

Company-Owned Securities Disregarded

45

Section 8.05.

Revocation of Consents; Future Securityholders Bound

45

 

 

 

ARTICLE NINE

SECURITYHOLDERS’ MEETINGS

 

 

 

Section 9.01.

Purposes of Meetings

45

Section 9.02.

Call of Meetings by Trustee

46

Section 9.03.

Call of Meetings by Company or Securityholders

46

Section 9.04.

Qualification for Voting

46

Section 9.05.

Regulations

47

 

iii


 

Section 9.06.

Voting

47

 

 

 

ARTICLE TEN

SUPPLEMENTAL INDENTURES

 

 

 

Section 10.01.

Supplemental Indentures without Consent of Securityholders

48

Section 10.02.

Supplemental Indentures with Consent of Securityholders

49

Section 10.03.

Compliance with Trust Indenture Act; Effect of Supplemental Indentures

50

Section 10.04.

Notation on Securities

51

 

ARTICLE ELEVEN

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

 

 

Section 11.01.

Company and Guarantor May Consolidate, etc., Only on Certain Terms

51

Section 11.02.

Successor Person Substituted

52

 

 

 

ARTICLE TWELVE

SATISFACTION AND DISCHARGE OF INDENTURE;

UNCLAIMED MONEYS

 

 

 

Section 12.01.

Discharge of Indenture

52

Section 12.02.

Deposited Moneys to Be Held in Trust by Trustee

54

Section 12.03.

Paying Agent to Repay Moneys Held

54

Section 12.04.

Return of Unclaimed Moneys

54

 

 

 

ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE

 

 

 

Section 13.01.

Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance

55

Section 13.02.

Defeasance and Discharge

55

Section 13.03.

Covenant Defeasance

55

Section 13.04.

Conditions to Defeasance or Covenant Defeasance

56

Section 13.05.

Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions

58

 

 

 

ARTICLE FOURTEEN

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS

 

 

 

Section 14.01.

Indenture and Securities Solely Corporate Obligations

59

 

 

 

ARTICLE FIFTEEN

GUARANTEE

 

 

 

Section 15.01.

Guarantee

59

Section 15.02.

Subrogation

61

 

iv


 

Section 15.03.

Notation of Guarantee

61

 

 

 

ARTICLE SIXTEEN

MISCELLANEOUS PROVISIONS

 

 

 

Section 16.01.

Benefits of Indenture Restricted to Parties and Securityholders

61

Section 16.02.

Provisions Binding on Successors

61

Section 16.03.

Addresses for Notices, etc.

61

Section 16.04.

Evidence of Compliance with Conditions Precedent

62

Section 16.05.

Legal Holidays

63

Section 16.06.

Trust Indenture Act to Control

63

Section 16.07.

Execution in Counterparts

63

Section 16.08.

New York Contract

63

Section 16.09.

Consent to Service

63

Section 16.10.

Separability

64

Section 16.11.

Assignment

64

Section 16.12.

Waiver of Jury Trial

64

Section 16.13.

Force Majeure

64

Section 16.14.

Judgment Currency

64

Section 16.15.

Tax Withholding

65

 

v


 

THIS INDENTURE, dated as of the      day of             , is among Aon plc, a corporation duly organized and existing under the laws of England and Wales (hereinafter sometimes called the “Company”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).

 

WITNESSETH:

 

WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided; and

 

WHEREAS, each of the Company and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Company and the Guarantor has in all respects been duly authorized, and each of the Company and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;

 

NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:

 

ARTICLE ONE
DEFINITIONS

 

Section 1.01.                               Definitions .  The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section.  All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended and the Securities Act of 1933, as amended, shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act of 1939 and in the Securities Act of 1933, as amended, in each case, as in force at the date of this Indenture as originally executed.

 

Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:

 

1


 

(1)                                  the terms defined in this Article include the plural as well as the singular;

 

(2)                                  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(3)                                  the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(4)                                  references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture;

 

(5)                                  the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”);

 

(6)                                  provisions apply to successive events and transactions;

 

(7)                                  the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings;

 

(8)                                  the masculine gender includes the feminine and the neuter; and

 

(9)                                  references to agreements and other instruments include subsequent amendments and supplements thereto.

 

ADDITIONAL AMOUNTS

 

The term “Additional Amounts” shall have the meaning specified in Section 4.05.

 

BOARD OF DIRECTORS

 

The term “Board of Directors” shall mean the Board of Directors of the Company, the Executive Committee of the Company or any other committee duly authorized to exercise the powers and authority of the Board of Directors with respect to this Indenture or any Security.

 

BOARD OF DIRECTORS OF THE GUARANTOR

 

The term “Board of Directors of the Guarantor” shall mean the Board of Directors of the Guarantor, the Executive Committee of the Guarantor or any other committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.

 

BOARD RESOLUTION

 

The term “Board Resolution” shall mean a resolution certified by the Company Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

2


 

BOARD RESOLUTION OF THE GUARANTOR

 

The term “Board Resolution of the Guarantor” shall mean a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

BUSINESS DAY

 

The term “Business Day” shall mean, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.

 

COMMISSION

 

The term “Commission” shall mean 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 Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

COMPANY

 

The term “Company” shall mean the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

COMPANY ORDER

 

The term “Company Order” means a written order signed in the name of the Company by the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

CORPORATE TRUST OFFICE

 

The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602 Attention:  Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

COVENANT DEFEASANCE

 

The term “covenant defeasance” shall have the meaning specified in Section 13.03.

 

3


 

DEFEASANCE

 

The term “defeasance” shall have the meaning specified in Section 13.02.

 

DEPOSITARY

 

The term “Depositary” shall mean, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.

 

DOLLARS

 

The term “dollars” or “$” shall mean a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.

 

EVENT OF DEFAULT

 

The term “Event of Default” shall mean any event specified as such in or as contemplated by Section 6.01.

 

EXCHANGE ACT

 

The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

GAAP

 

The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.

 

GLOBAL SECURITY

 

The term “Global Security” means a Security in registered global form without interest coupons.

 

GOVERNMENT OBLIGATION

 

The term “Government Obligation” shall have the meaning specified in Section 13.04.

 

GUARANTEE

 

The term “Guarantee” shall have the meaning specified in Article Fifteen.

 

4

 

GUARANTOR

 

The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.

 

HOLDER

 

The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, shall mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

HOME COUNTRY JURISDICTION

 

The term “Home Country Jurisdiction” means the jurisdiction of organization of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.

 

INDENTURE

 

The term “Indenture” shall mean this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.

 

INTEREST

 

The term “Interest” shall mean, when used with respect to non-interest bearing Securities, interest payable on or after maturity.

 

INTEREST PAYMENT DATE

 

The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.

 

5


 

OFFICERS’ CERTIFICATE

 

The term “Officers’ Certificate” shall mean a certificate signed by the Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

OFFICERS’ CERTIFICATE OF THE GUARANTOR

 

The term “Officers’ Certificate of the Guarantor” shall mean a certificate signed by the Chairman of the Board of Directors of the Guarantor or the President or any Executive Vice President or any Vice President or the Treasurer and by the Corporate Secretary or any Assistant Secretary of the Guarantor.

 

OPINION OF COUNSEL

 

The term “Opinion of Counsel” shall mean an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor or who may be other counsel.

 

ORIGINAL ISSUE DISCOUNT SECURITIES

 

The term “Original Issue Discount Securities” shall mean a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.

 

OUTSTANDING

 

The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except

 

(a)                                  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(b)                                  Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice;

 

(c)                                   Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Company;

 

6


 

(d)                                  Securities which have been defeased pursuant to Section 13.02; and

 

(e)                                   Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange.

 

PERIODIC OFFERING

 

The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.

 

PERSON

 

The term “Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

PLACE OF PAYMENT

 

The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Company in the Borough of Manhattan, The City of New York, designated and maintained by the Company pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.

 

REGULAR RECORD DATE

 

The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.

 

RESPONSIBLE OFFICER

 

The term “Responsible Officer”, when used with respect to the Trustee, shall mean any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

SECURITY REGISTER AND SECURITY REGISTRAR

 

The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.

 

7


 

SHARES

 

The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of the Company authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Company which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.

 

TAXES

 

The term “Taxes” shall have the meaning specified in Section 4.05.

 

TRUST INDENTURE ACT

 

Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

UNITED STATES

 

The term “United States” shall mean the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.

 

ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES

 

Section 2.01.                               Amount Unlimited; Issuable in Series .  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series.  There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

 

(1)                                  the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(2)                                  any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms);

 

8


 

(3)                                  whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security;

 

(4)                                  the date or dates on which the principal of the Securities of the series is payable;

 

(5)                                  the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date;

 

(6)                                  whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture;

 

(7)                                  the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable;

 

(8)                                  the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, repurchased or repaid, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;

 

(9)                                  the obligation, if any, of the Company to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Company to select the Securities to be redeemed, repurchased or repaid;

 

(10)                           if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities

 

9


 

denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than dollars;

 

(11)                           the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;

 

(12)                           if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02;

 

(13)                           if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series);

 

(14)                           any deletions from, modifications of or additions to the Events of Default or covenants of the Company and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein);

 

(15)                           whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and

 

(16)                           any other terms of the Securities of the series.

 

All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officers’ Certificate or in any such indenture supplemental hereto.

 

If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.

 

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With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officers’ Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.

 

Section 2.02.                               Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:

 

[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

 

 

Dated:

 

 

By:

 

 

 

 

Authorized Officer

 

Section 2.03.                               Form, Execution, Authentication, Delivery and Dating of Securities .  The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officers’ Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities.  Such Securities may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.

 

Each Security shall be executed on behalf of the Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary.  Such signatures may be the manual or facsimile signatures of the present or any future such officers.

 

With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be manual or facsimile.

 

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Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee.  At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series.  If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate pursuant to Section 16.04 and an Opinion of Counsel stating:

 

(a)                                  if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;

 

(b)                                  if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and

 

(c)                                   that each such Security, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.

 

If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

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Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 2.01 if such Officers’ Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.

 

Every Security shall be dated the date of its authentication.

 

No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.

 

Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

Section 2.04.                               Currency; Denominations; Regular Record Date .  Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.

 

The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01.  In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.

 

The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, The City of New York are authorized by law or required

 

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by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.

 

The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Section 2.05.                               Exchange and Registration of Transfer of Securities .  Securities of any series may be exchanged for a like aggregate principal amount of Securities of other authorized denominations of such series.  Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.

 

The Company (or its designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided.  The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time.  At all reasonable times the Security Register shall be open for inspection by the Trustee.  Upon due presentment for registration of transfer of any Security of a particular series at such office or agency, the Company shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Company or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.

 

All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of

 

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transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.

 

All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith .

 

The Company shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased, or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.

 

Section 2.06.                               Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced).  Temporary Securities of any series shall be issuable in any authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution.  Every temporary Security shall be executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Company shall execute and shall furnish definitive Securities of such series evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations.  Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be

 

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delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

 

Section 2.07.                               Mutilated, Destroyed, Lost or Stolen Securities .  In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof.  The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company.  Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution.  In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to the satisfaction of the Company of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

 

All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

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Section 2.08.                               Securities in Global Form .  If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.

 

Section 2.09.                               Cancellation .  All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture.  The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Company or, if requested to do so by the Company, shall return such cancelled Securities to the Company.

 

Section 2.10.                               Computation of Interest .  Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 2.11.                               CUSIP Numbers .  The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

ARTICLE THREE
REDEMPTION OF SECURITIES

 

Section 3.01.                               Redemption of Securities; Applicability of Article .  Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.

 

Section 3.02.                               Tax Redemption The Company shall have the option to redeem the Securities of any series, in whole but not in part, at any time prior to the maturity date of the

 

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principal of the Securities of any series, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption, if, with respect to such series:

 

(a)                                  the Company determines that, as a result of:

 

(1)                                  any change in, amendment to, or announced proposed change in the laws or any regulations or rulings promulgated thereunder of a Home Country Jurisdiction (or of any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the jurisdiction in which such successor Person is organized (or deemed resident for tax purposes); or

 

(2)                                  any change in the application or official interpretation of such laws, regulations or rulings, or (in either case) any change in the application or official interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which any such jurisdiction is a party, which change, execution or amendment becomes effective on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), with respect to taxes imposed by such other jurisdiction in accordance with Section 11.01, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series or, if applicable, in the Guarantee relating to such Securities of such series,

 

the Company, the Guarantor or such successor Person, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company, the Guarantor, as applicable, or such successor Person; or

 

(b)                                  the Company determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Home Country Jurisdiction (or any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the

 

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jurisdiction in which such successor Person is organized (or deemed resident for tax purposes), which action is taken or brought on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, with respect to taxes imposed by such other jurisdiction, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series, that there is a substantial probability that the circumstances described in subsection (a) above would exist.

 

(c)                                   Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.

 

(d)                                  The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person will also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price.

 

(e)                                   Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company will deliver to the Trustee an Officer’s Certificate stating that the Company is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and, if the redemption is pursuant to clause (b) above, the opinion of independent counsel referred to in such clause (b), which shall be in a form satisfactory to the Trustee. Delivery of any notice of redemption pursuant to this Section 3.02 will be conclusive and binding on the Holders of the Securities being redeemed. Once the Company delivers such an Officer’s Certificate to the Trustee, any notice of redemption that has been given shall be irrevocable.

 

Section 3.03.                               Notice of Redemption; Selection of Securities .  In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, it shall fix a date for redemption, it shall prepare the notice of such redemption and it shall mail or, at the Company’s request and expense, the Trustee shall mail such notice of redemption at least thirty (30) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register.  Such mailing shall be by prepaid first class mail or in the case of global securities, delivered electronically to the Depository.  Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice.  In any case, failure

 

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to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.

 

Each notice of redemption shall specify the date fixed for redemption, the redemption price at which the applicable Securities are to be redeemed, the Place of Payment, that payment will be made upon presentation and surrender of such Securities and that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange,

 

Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption.  The Company will give the Trustee notice of each redemption at least forty-five (45) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.

 

If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair and, if applicable, in accordance with the procedures of the Depositary, the Securities of such series to be redeemed; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.

 

Section 3.04.                               Payment of Securities Called for Redemption .  If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of Payment stated in such notice at the applicable redemption price and on and after said date (unless the Company and, if the provisions of Article Fifteen apply to the Securities to be

 

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redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue.  On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Company at the applicable redemption price.  Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Company shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04.  At the option of the Company, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.

 

Upon presentation of any Security redeemed in part only (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.

 

ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY

 

Section 4.01.                               Payment of Principal, Premium and Interest .  The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture.  The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Company may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.

 

Section 4.02.                               Offices for Notices and Payments, etc .  As long as any of the Securities of a series remain outstanding, the Company will designate and maintain, in the City of Chicago and the Borough of Manhattan, The City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Company in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment.  The Company will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof.  In case the Company shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee in the City of Chicago and

 

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the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes.  The Company will 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 each of                      , located at                             and                            as a Security Registrar and as the office or agency of the Company in the City of Chicago and the Borough of Manhattan, the City of New York, respectively, where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities of any series or of this Indenture may be served.

 

Section 4.03.                               Provisions as to Paying Agent .

 

(a)                                  Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,

 

(1)                                  that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,

 

(2)                                  that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held,

 

(3)                                  that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and

 

(4)                                  at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent.

 

(b)                                  If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due.  The Company will promptly notify the Trustee of any failure to take such action.

 

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(c)                                   Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

(d)                                  Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.

 

(e)                                   Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03.

 

(f)                                    To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis , to such Shares or other securities or property.

 

Section 4.04.                               Statement by Officers as to Default .

 

(a)                                  The Company will 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, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by it and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge.

 

(b)                                  The Company will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default.

 

Section 4.05.                               Payment of Additional Amounts .

 

(a)                                  All payments of principal of and premium, if any, and interest, if any, on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee shall be free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed or levied by or on behalf of the government of a Home Country Jurisdiction, any territory of a Home Country Jurisdiction or any authority or agency therein or thereof having the power to tax (collectively,

 

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“Taxes”), except to the extent such Taxes are required to be withheld or deducted by law or by the interpretation or administration thereof.

 

If the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each beneficial owner (including such Additional Amounts), after such withholding or deduction, shall not be less than the amount such beneficial owner would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:

 

(1)                                  that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Home Country Jurisdiction or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;

 

(2)                                  that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;

 

(3)                                  payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;

 

(4)                                  that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:

 

(i)                                      such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and

 

(ii)                                   at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;

 

(5)                                  that would not have been imposed but for the presentation of a Security or, as applicable, the Guarantee (where presentation is required) for payment on a date more

 

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than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;

 

(6)                                  that are imposed on a payment and are required to be made pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive, or any law implementing or complying with, or introduced in order to conform to, such directive or directives;

 

(7)                                  that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;

 

(8)                                  that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, had been made to a paying agent other than the paying agent to which the presentation was made; or

 

(9)                                  any combination of the foregoing clauses (1) through (8);

 

nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security.

 

(b)                                  All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.

 

(c)                                   The Company shall maintain, in respect of Securities of each series outstanding, at least one paying agent located outside the United Kingdom. In the event that a paying agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a paying agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive or any law implementing or complying with, or introduced in order to conform to such directive or directives, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such directive.

 

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(d)                                  The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.

 

(e)                                   If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), such successor Person will pay Additional Amounts on the same basis set forth in this Section 4.05, except that references to “Home Country Jurisdiction” will be treated as references to both the Home Country Jurisdictions at the issue date of the Securities of such series and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).

 

ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE

 

Section 5.01.                               Securityholder Lists .  The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:

 

(a)                                  semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company; and

 

(b)                                  at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished;

 

provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.

 

Section 5.02.                               Preservation and Disclosure of Lists .

 

(a)  The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the

 

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Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.

 

(b)                                  In case three or more Holders of Securities of a series (hereinafter referred to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants’ desire to communicate with other Holders of Securities of such series or with Holders of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five (5) Business Days after the receipt of such application, at its election, either

 

(1)                                  afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or

 

(2)                                  inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five (5) days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law.  Such written statement shall specify the basis of such opinion.  If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holder with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c)                                   Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent of the Company or of the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with

 

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the provisions of subsection (b) of this Section, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).

 

Section 5.03.                               Reports by the Company .  The Company covenants:

 

(a)                                  to file with the Trustee within thirty (30) days after the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)                                  to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and

 

(c)                                   to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

Section 5.04.                               Reports by the Trustee .

 

(a)                                  The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a).

 

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(b)                                  A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Company.  The Company agrees to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange.

 

ARTICLE SIX
REMEDIES ON DEFAULT

 

Section 6.01.                               Events of Default .  In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:

 

(a)                                  default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or

 

(b)                                  default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days; or

 

(c)                                   with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or

 

(d)                                  failure on the part of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, the Guarantor in this Indenture applicable to Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Company or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company or if applicable, the Guarantor by the Trustee, or to the Company and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or

 

(e)                                   a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of

 

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Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of the Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or

 

(f)                                    except for any case, proceeding, meeting, resolution or order in connection with a winding-up of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of the Company or the Guarantor, as applicable, either the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of the property of the Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors;

 

(g)                                   default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 or upon the exchange of any Security of such series which is exchangeable for other securities or property, and continuance of such default for a period of 10 Business Days; or

 

(h)                                  any other Event of Default provided with respect to Securities of such series;

 

then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.

 

The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that

 

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the terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.

 

Section 6.02.                               Payment of Securities on Default; Suit Therefor .  The Company covenants that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase,

 

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repayment or acceleration of such series, as the case may be); 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 willful misconduct.

 

In case the Company shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.

 

In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, the Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to the Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and liabilities

 

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incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct.

 

Nothing herein contained shall be deemed to authorize 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 Securities 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.

 

All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 6.03.                               Application of Moneys Collected by Trustee .  Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

FIRST:  To the payment of reasonable costs and expenses applicable to such Securities of 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 willful misconduct;

 

SECOND:  In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;

 

THIRD:  In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest,

 

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if any, and (to the extent that such interest has been collected by the Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and

 

FOURTH:  Any remainder to the Company or as a court of competent jurisdiction may direct.

 

Section 6.04.                               Proceedings by Securityholders .  No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing himself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.  For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.  With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.

 

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Section 6.05.                               Remedies Cumulative and Continuing .  All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.

 

Section 6.06.                               Direction of Proceedings .  The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to 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, with respect to the Securities of such series; provided, however, that (subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) 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 action or proceedings so directed would involve the Trustee in personal liability.

 

Section 6.07.                               Notice of Defaults .  The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, 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 or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.

 

Section 6.08.                               Undertaking to Pay Costs .  All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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

 

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Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.

 

Section 6.09.                               Waiver of Past Defaults .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

 

(1)                                  in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series;

 

(2)                                  in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or

 

(3)                                  in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series 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 and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

ARTICLE SEVEN
CONCERNING THE TRUSTEE

 

Section 7.01.                               Duties and Responsibilities of Trustee .  The Trustee, except during the continuance of an Event of Default of a particular series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

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(a)                                  prior to the occurrence of an Event of Default with respect to a particular series and after the curing or waiving of all Events of Default with respect to such series which may have occurred:

 

(1)                                  the duties and obligations of the Trustees with respect to such series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)                                  in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);

 

(b)                                  the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(c)                                   the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

Whether or not therein 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 Section.

 

No provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

Section 7.02.                               Reliance on Documents, Opinions, etc .  Subject to the provisions of Section 7.01:

 

(a)                                  the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

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(b)                                  any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by the Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; any request, direction, order or demand of the Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Guarantor by the Chairman of the Board of Directors of the Guarantor or any Vice Chairman of the Board of Directors of the Guarantor or its President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution of the Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Guarantor;

 

(c)                                   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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel;

 

(d)                                  the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby;

 

(e)                                   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, coupon 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 or the Guarantor personally or by agent or attorney;

 

(f)                                    the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder;

 

(g)                                   the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

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(h)                                  in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(i)                                      the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written knowledge thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(j)                                     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

 

(k)                                  the Trustee may request that the Company or the Guarantor deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

Section 7.03.                               No Responsibility for Recitals, etc .  The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture.  The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

Section 7.04.                               Ownership of Securities .  The Trustee or any agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company, the Guarantor or the Trustee.

 

Section 7.05.                               Moneys to Be Held in Trust .  Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.  Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.  So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Company, signed by its Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President or its Treasurer or any Assistant Treasurer.

 

Section 7.06.                               Compensation, Indemnification and Expenses of Trustee .  The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation and, except as otherwise expressly provided, the Company

 

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will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct.  The Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises.  The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder.  Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.

 

Section 7.07.                               Officers’ Certificate as Evidence .  Subject to the provisions of Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate or an Officers’ Certificate of the Guarantor, as applicable, delivered to the Trustee, and such Certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 7.08.                               Conflicting Interest of Trustee .

 

(a)                                  If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act.

 

(b)                                  In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by

 

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the conflicting interest as the names and addresses of such Holders appear on the Security Register.

 

Section 7.09.                               Eligibility of Trustee .  There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by Federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars.  If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case 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 Section 7.10.

 

Section 7.10.                               Resignation or Removal of Trustee .

 

(a)  The Trustee, or any trustee or trustees hereafter appointed, may, upon sixty (60) days’ written notice to the Company, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company, and by mailing notice of such resignation to the Holders of then outstanding Securities of each series affected at their addresses as they shall appear on the Security Register.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the mailing of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(b)                                  In case at any time any of the following shall occur:

 

(1)                                  the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or

 

(2)                                  the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or

 

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(3)                                  the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(c)                                   The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Company and appoint a successor trustee with respect to the Securities of such series with the consent of the Company.

 

(d)                                  Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.

 

(e)                                   Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.

 

Section 7.11.                               Acceptance by Successor Trustee .  Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act.  Upon request of any such successor trustee, the Company and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.

 

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In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.

 

No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.

 

Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register.  If the Company fails to mail such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Company.

 

Section 7.12.                               Successor by Merger, etc .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 7.13.                               Limitations on Rights of Trustee as Creditor .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS

 

Section 8.01.                               Action by Securityholders .  Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series 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 Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.

 

In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken 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 principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.

 

Section 8.02.                               Proof of Ownership .  Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.

 

Section 8.03.                               Who Are Deemed Absolute Owners .  The Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.

 

If the Company or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Company or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders

 

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for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.

 

Section 8.04.                               Company-Owned Securities Disregarded .  In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Company or by any person directly or indirectly controlling or controlled by or under direct or indirect control with the Company, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the Trustee knows are so owned shall be disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.

 

Section 8.05.                               Revocation of Consents; Future Securityholders Bound .  At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security.  Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security.  Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.

 

ARTICLE NINE
SECURITYHOLDERS’ MEETINGS

 

Section 9.01.                               Purposes of Meetings .  A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:

 

(1)                                  to give any notice to the Company, the Guarantor (if applicable) or the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its

 

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consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six;

 

(2)                                  to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven;

 

(3)                                  to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or

 

(4)                                  to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law.

 

Section 9.02.                               Call of Meetings by Trustee .  The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, 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 of Securities of any or all series, 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 to all Holders of then Outstanding Securities of such series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (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 Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series 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 9.03.                               Call of Meetings by Company or Securityholders .  In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Company or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing or publishing notice thereof as provided in Section 9.02.

 

Section 9.04.                               Qualification for Voting .  To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder.  The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders 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.

 

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Section 9.05.                               Regulations .  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities 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 it 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 Securityholders as provided in Section 9.03, in which case the Company or the Securityholders 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 Securities represented at the meeting and entitled to vote.

 

Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security 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 Securityholder or proxy.  Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.

 

Section 9.06.                               Voting .  The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders 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 Securities 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 Securityholders 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 9.02.  The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

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ARTICLE TEN
SUPPLEMENTAL INDENTURES

 

Section 10.01.                        Supplemental Indentures without Consent of Securityholders .  The Company, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes:

 

(a)                                  to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Article Eleven hereof;

 

(b)                                  to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Company or the Guarantor;

 

(c)                                   to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series;

 

(d)                                  to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect;

 

(e)                                   to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities;

 

(f)                                    to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; and

 

(g)                                   to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03.

 

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The Trustee is hereby authorized to join with the Company and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.

 

Section 10.02.                        Supplemental Indentures with Consent of Securityholders .  With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Company, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:

 

(a)                                  extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security;

 

(b)                                  impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor);

 

(c)                                   reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults;

 

(d)                                  make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or

 

(e)                                   modify any of the provisions of this Section or Section 6.09, 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 Security affected thereby; provided however, that this clause shall not be deemed to

 

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require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e).

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Upon the request of the Company and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Promptly after the execution and delivery by the Company, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register.  Any failure of the Company or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.

 

Section 10.03.                        Compliance with Trust Indenture Act; Effect of Supplemental Indentures .  Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act of 1939, as amended and then in effect.  Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officers’ Certificate, and an Officers’ Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as

 

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conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.

 

Section 10.04.                        Notation on Securities .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  New Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.

 

ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 11.01.                        Company and Guarantor May Consolidate, etc., Only on Certain Terms .  So long as any Securities shall be Outstanding, neither the Company nor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:

 

(a)                                  (1) The Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which the Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety:

 

(i)                                      expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and

 

(ii)                                   in the case of the Guarantor, is a corporation or other entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia.

 

(b)                                  immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or the Guarantor, as

 

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applicable, as a result of such transaction as having been incurred by the Company or the Guarantor, as applicable, 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; and

 

(c)                                   the Company has delivered to the Trustee an Officers’ Certificate or the Guarantor has delivered to the Trustee an Officers’ Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 11.02.                        Successor Person Substituted .  So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company or the Guarantor, as applicable, is merged or converted 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 or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS

 

Section 12.01.                        Discharge of Indenture .  This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when

 

(a)                                  either:

 

(i)                                      all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or

 

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(ii)                                   all such Securities of such series not theretofore delivered to the Trustee for cancellation:

 

(A)                                have become due and payable; or

 

(B)                                will become due and payable at their stated maturity within one year; or

 

(C)                                are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;

 

and the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any) with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;

 

(b)                                  the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and

 

(c)                                   the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:

 

(1)   All obligations under Section 7.06;

 

(2)  If money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02 and 12.04;

 

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(3)  Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Company or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and

 

(4)  Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares, securities or other property.

 

After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Company’s and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.

 

Section 12.02.                        Deposited Moneys to Be Held in Trust by Trustee .  Subject to Section 12.04, all moneys deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.

 

Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of the Company or the Guarantor, as the case may be, any money held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money was deposited.

 

Section 12.03.                        Paying Agent to Repay Moneys Held .  In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.

 

Section 12.04.                        Return of Unclaimed Moneys .  Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Company or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless

 

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an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.

 

ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE

 

Section 13.01.                        Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance .  Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.

 

Section 13.02.                        Defeasance and Discharge .  Upon the Company’s exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance” ).  Defeasance shall mean that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided , however , that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen.  Subject to compliance with this Article Thirteen, the Company may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.

 

Section 13.03.                        Covenant Defeasance .  Upon the Company’s exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to

 

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which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance” ).  Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.

 

Section 13.04.                        Conditions to Defeasance or Covenant Defeasance .  The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:

 

(a)                                  The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Governmental Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, 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, and which shall be applied by the Trustee (or other qualifying trustee)  to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities.  For this purpose, “Government Obligations” means securities that are (I) direct obligations of the government which issued the currency in which the Securities of such series are denominated 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 such government the payment of which is unconditionally guaranteed

 

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as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such 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 such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.

 

(b)                                  No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(c)                                   Such defeasance or covenant defeasance shall 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.

 

(d)                                  Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted.

 

(e)                                   In the case of an election with respect to Section 13.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable Federal income tax law (including, but not limited to, a change in the Code, proposed, temporary or final Treasury regulations, Revenue Rulings, Revenue Procedures, Internal Revenue Service Notices, Announcements, and other public announcements), in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

 

(f)                                    In the case of an election with respect to Section 13.03, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the

 

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effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

 

(g)                                   Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.

 

(h)                                  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with.

 

(i)                                      If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a), Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.

 

Section 13.05.                        Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.

 

Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be

 

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required to be deposited for the purpose for which such money or Government Obligations were deposited.

 

ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS

 

Section 14.01.                        Indenture and Securities Solely Corporate Obligations .  No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Company, the Guarantor or any successor Person to either of them, either directly or through the Company, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.

 

ARTICLE FIFTEEN
GUARANTEE

 

Section 15.01.                        Guarantee .  The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture or otherwise with respect to the Securities registered in such Holder’s name, and (b) the Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture to the Trustee (each, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.

 

The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification

 

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or consent granted to the Company with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.

 

The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Company, first make demand upon or seek to enforce remedies against the Company or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.

 

The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.

 

The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Company, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.

 

The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.

 

The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of the Company or otherwise.

 

The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Company or by any defense which the Company may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.  No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.

 

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Section 15.02.                        Subrogation .  The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.

 

Section 15.03.                        Notation of Guarantee .  To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.

 

The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.

 

The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.

 

ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS

 

Section 16.01.                        Benefits of Indenture Restricted to Parties and Securityholders.   Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.

 

Section 16.02.                        Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.

 

Section 16.03.                        Addresses for Notices, etc.   Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee), as follows:  if to the Company, Aon plc, 122 Leadenhall Street, London, England, Attention:  Treasurer; and if to the Guarantor, Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer.  Any notice, direction, request or demand by the Company or the Guarantor, or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 2 N. LaSalle Street, Suite 1020,

 

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Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.

 

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing.  If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its reasonable discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling, absent gross negligence or manifest error. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s prior reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of any such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Section 16.04.                        Evidence of Compliance with Conditions Precedent .  Upon any application or demand by the Company or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate or Officers’ Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.

 

Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he 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 (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

62

 

Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous.  Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.

 

Section 16.05.                        Legal Holidays .  Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.

 

Section 16.06.                        Trust Indenture Act to Control .  If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.

 

Section 16.07.                        Execution in Counterparts .  This 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.

 

Section 16.08.                        New York Contract .  This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State.

 

Section 16.09.                        Consent to Service .  The Company has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the Securities of any series brought in any federal or state court sitting in the Borough of Manhattan in The City of New York. By the execution and delivery of this Indenture, the Company irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Company, shall be deemed in every respect effective service of process upon the Company, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Company may consent to the nonexclusive jurisdiction of its courts

 

63


 

with respect to such Security. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any of the Securities shall be Outstanding.

 

Section 16.10.                        Separability .  In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

Section 16.11.                        Assignment .  The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations.  Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns.  This Indenture may not otherwise be assigned by the parties hereto.

 

Section 16.12.                        Waiver of Jury Trial .  EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 16.13.                        Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.

 

Section 16.14.                        Judgment Currency .  The Company and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:

 

(a)                                  if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, The City of New York, then, to the extent permitted by applicable

 

64


 

law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, The City of New York preceding the day on which a final unappealable judgment is entered; and

 

(b)                                  their obligations under this Indenture to make payments in the Required Currency:

 

(1)                                  shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments;

 

(2)                                  shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and

 

(3)                                  shall not be affected by judgment being obtained for any other sum due under this Indenture.

 

Section 16.15.                        Tax Withholding .  In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 16.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company agrees (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Company’s possession (or, to the extent not in the Company’s possession, can be obtained through commercially reasonable efforts of the Company) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Company, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability.  The terms of this Section shall survive the termination of this Indenture.

 

65


 

IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.

 

 

Aon plc

 

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

 

 

 

 

 

 

Aon Corporation

 

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

 

 

 

 

 

 

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

66


 

Annex A

 

NOTATION OF GUARANTEE

 

For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

 

 

Aon Corporation

 

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 



Exhibit 4.3

 

 

 

AON PLC,

Company

 

AON CORPORATION,

Guarantor

 

and

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

Trustee

 

INDENTURE

 

Dated as of                          

 

Subordinated Debt Securities

 

 

 


 

CROSS-REFERENCE SHEET*

 

BETWEEN

 

Provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939 and the within Indenture among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., Trustee:

 

310

(a) (1) and (2)

7.09

310

(a) (3) and (4)

Not applicable

310

(b)

7.08 and 7.10 (b)

310

(c)

Not applicable

311

(a) and (b)

7.13

311

(c)

Not applicable

312

(a)

5.01 and 5.02 (a)

312

(b) and (c)

5.02 (b) and (c)

313

(a), (b)(2) and (c)

5.04 (a)

313

(b) (1)

Not applicable

313

(d)

5.04 (b)

314

(a)

5.03

314

(b)

Not applicable

314

(c) (1) and (2)

17.04

314

(c) (3)

Not applicable

314

(d)

Not applicable

314

(e)

17.04

314

(f)

Not applicable

315

(a), (c) and (d)

7.01

315

(b)

6.07

315

(e)

6.08

316

(a) (1)

6.01 and 6.06

316

(a) (2)

Omitted

316

(a) last sentence

8.04

316

(b)

6.04

317

(a)

6.02

317

(b)

4.03 (a)

318

(a)

17.06

 

* This Cross-Reference Sheet is not part of the Indenture.

 

i


 

TABLE OF CONTENTS

 

ARTICLE ONE

DEFINITIONS

 

 

 

Section 1.01.

Definitions

1

 

ARTICLE TWO

ISSUE, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES

 

 

 

Section 2.01.

Amount Unlimited; Issuable in Series

10

Section 2.02.

Form of Trustee’s Certificate of Authentication

12

Section 2.03.

Form, Execution, Authentication, Delivery and Dating of Securities

13

Section 2.04.

Currency; Denominations; Regular Record Date

15

Section 2.05.

Exchange and Registration of Transfer of Securities

15

Section 2.06.

Temporary Securities

16

Section 2.07.

Mutilated, Destroyed, Lost or Stolen Securities

17

Section 2.08.

Securities in Global Form

18

Section 2.09.

Cancellation

18

Section 2.10.

Computation of Interest

18

Section 2.11.

CUSIP Numbers

19

 

 

 

ARTICLE THREE

REDEMPTION OF SECURITIES

 

 

 

Section 3.01.

Redemption of Securities; Applicability of Article

19

Section 3.02.

Tax Redemption

19

Section 3.03.

Notice of Redemption; Selection of Securities

21

Section 3.04.

Payment of Securities Called for Redemption

22

 

 

 

ARTICLE FOUR

PARTICULAR COVENANTS OF THE COMPANY

 

 

 

Section 4.01.

Payment of Principal, Premium and Interest

23

Section 4.02.

Offices for Notices and Payments, etc.

23

Section 4.03.

Provisions as to Paying Agent

24

Section 4.04.

Statement by Officers as to Default

25

Section 4.05.

Payment of Additional Amounts

25

 

 

 

ARTICLE FIVE

SECURITYHOLDER LISTS AND REPORTS BY THE

COMPANY AND THE TRUSTEE

 

 

 

Section 5.01.

Securityholder Lists

28

Section 5.02.

Preservation and Disclosure of Lists

28

Section 5.03.

Reports by the Company

29

Section 5.04.

Reports by the Trustee

30

 

ii


 

ARTICLE SIX

REMEDIES ON DEFAULT

 

 

 

Section 6.01.

Events of Default

30

Section 6.02.

Payment of Securities on Default; Suit Therefor

33

Section 6.03.

Application of Moneys Collected by Trustee

35

Section 6.04.

Proceedings by Securityholders

35

Section 6.05.

Remedies Cumulative and Continuing

36

Section 6.06.

Direction of Proceedings

36

Section 6.07.

Notice of Defaults

37

Section 6.08.

Undertaking to Pay Costs

37

Section 6.09.

Waiver of Past Defaults

37

 

 

 

ARTICLE SEVEN

CONCERNING THE TRUSTEE

 

 

 

Section 7.01.

Duties and Responsibilities of Trustee

38

Section 7.02.

Reliance on Documents, Opinions, etc.

39

Section 7.03.

No Responsibility for Recitals, etc.

41

Section 7.04.

Ownership of Securities

41

Section 7.05.

Moneys to Be Held in Trust

41

Section 7.06.

Compensation, Indemnification and Expenses of Trustee

41

Section 7.07.

Officers’ Certificate as Evidence

42

Section 7.08.

Conflicting Interest of Trustee

42

Section 7.09.

Eligibility of Trustee

42

Section 7.10.

Resignation or Removal of Trustee

43

Section 7.11.

Acceptance by Successor Trustee

44

Section 7.12.

Successor by Merger, etc.

45

Section 7.13.

Limitations on Rights of Trustee as Creditor

45

 

 

 

ARTICLE EIGHT

CONCERNING THE SECURITYHOLDERS

 

 

 

Section 8.01.

Action by Securityholders

45

Section 8.02.

Proof of Ownership

46

Section 8.03.

Who Are Deemed Absolute Owners

46

Section 8.04.

Company-Owned Securities Disregarded

46

Section 8.05.

Revocation of Consents; Future Securityholders Bound

47

 

ARTICLE NINE

SECURITYHOLDERS’ MEETINGS

 

 

 

Section 9.01.

Purposes of Meetings

47

Section 9.02.

Call of Meetings by Trustee

47

Section 9.03.

Call of Meetings by Company or Securityholders

48

Section 9.04.

Qualification for Voting

48

Section 9.05.

Regulations

48

 

iii


 

Section 9.06.

Voting

49

 

ARTICLE TEN

SUPPLEMENTAL INDENTURES

 

 

 

Section 10.01.

Supplemental Indentures without Consent of Securityholders

49

Section 10.02.

Supplemental Indentures with Consent of Securityholders

50

Section 10.03.

Compliance with Trust Indenture Act; Effect of Supplemental Indentures

52

Section 10.04.

Notation on Securities

52

 

 

 

ARTICLE ELEVEN

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

 

 

Section 11.01.

Company and Guarantor May Consolidate, etc., Only on Certain Terms

52

Section 11.02.

Successor Person Substituted

53

 

 

 

ARTICLE TWELVE

SATISFACTION AND DISCHARGE OF INDENTURE;

UNCLAIMED MONEYS

 

 

 

Section 12.01.

Discharge of Indenture

54

Section 12.02.

Deposited Moneys to Be Held in Trust by Trustee

55

Section 12.03.

Paying Agent to Repay Moneys Held

56

Section 12.04.

Return of Unclaimed Moneys

56

Section 12.05.

Effect on Subordination Provisions

56

 

 

 

ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE

 

 

 

Section 13.01.

Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance

57

Section 13.02.

Defeasance and Discharge

57

Section 13.03.

Covenant Defeasance

57

Section 13.04.

Conditions to Defeasance or Covenant Defeasance

58

Section 13.05.

Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions

60

Section 13.06.

Effect on Subordination Provisions

61

 

 

 

ARTICLE FOURTEEN

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS

 

 

 

Section 14.01.

Indenture and Securities Solely Corporate Obligations

61

 

ARTICLE FIFTEEN

GUARANTEE

 

iv


 

Section 15.01.

Guarantee

61

Section 15.02.

Subrogation

63

Section 15.03.

Notation of Guarantee

63

Section 15.04.

Agreement To Subordinate

63

Section 15.05.

No Payment of Guaranteed Securities Obligations if Senior Indebtedness of the Guarantor in Default

64

Section 15.06.

Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities

65

Section 15.07.

Reliance By Senior Indebtedness of the Guarantor On Subordination Provisions

68

Section 15.08.

Trustee’s Relation To Senior Indebtedness of the Guarantor

68

Section 15.09.

Other Provisions Subject Hereto

69

 

 

 

ARTICLE SIXTEEN

SUBORDINATION OF THE SECURITIES

 

 

 

Section 16.01.

Agreement To Subordinate

69

Section 16.02.

No Payment On Securities If Senior Indebtedness of the Company In Default

70

Section 16.03.

Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities

71

Section 16.04.

Reliance By Senior Indebtedness of the Company On Subordination Provisions

74

Section 16.05.

Trustee’s Relation To Senior Indebtedness of the Company

74

Section 16.06.

Other Provisions Subject Hereto

75

 

 

 

ARTICLE SEVENTEEN

MISCELLANEOUS PROVISIONS

 

 

 

Section 17.01.

Benefits of Indenture

75

Section 17.02.

Provisions Binding on Successors

75

Section 17.03.

Addresses for Notices, etc.

75

Section 17.04.

Evidence of Compliance with Conditions Precedent

76

Section 17.05.

Legal Holidays

77

Section 17.06.

Trust Indenture Act to Control

77

Section 17.07.

Execution in Counterparts

77

Section 17.08.

New York Contract

77

Section 17.09.

Consent to Service

77

Section 17.10.

Separability

78

Section 17.11.

Assignment

78

Section 17.12.

Waiver of Jury Trial

78

Section 17.13.

Force Majeure

78

Section 17.14.

Judgment Currency

78

Section 17.15.

Tax Witholding

79

 

v


 

THIS INDENTURE, dated as of the      day of             , is among Aon plc, a corporation duly organized and existing under the laws of England and Wales (hereinafter sometimes called the “Company”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).

 

WITNESSETH:

 

WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its subordinated unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times, to have such relative rankings in priority of payment and to have such other provisions as shall be fixed as hereinafter provided; and

 

WHEREAS, each of the Company and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Company and the Guarantor has in all respects been duly authorized, and each of the Company and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;

 

NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:

 

ARTICLE ONE
DEFINITIONS

 

Section 1.01.                               Definitions .  The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section.  All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended and the Securities Act of 1933, as amended, shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act of 1939 and in the Securities Act of 1933, as amended, in each case, as in force at the date of this Indenture as originally executed.

 

1


 

Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:

 

(1)                                  the terms defined in this Article include the plural as well as the singular;

 

(2)                                  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(3)                                  the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(4)                                  references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture;

 

(5)                                  the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”);

 

(6)                                  provisions apply to successive events and transactions;

 

(7)                                  the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings;

 

(8)                                  the masculine gender includes the feminine and the neuter; and

 

(9)                                  references to agreements and other instruments include subsequent amendments and supplements thereto.

 

ADDITIONAL AMOUNTS

 

The term “Additional Amounts” shall have the meaning specified in Section 4.05.

 

BOARD OF DIRECTORS

 

The term “Board of Directors” shall mean the Board of Directors of the Company, the Executive Committee of the Company or any other committee duly authorized to exercise the powers and authority of the Board of Directors with respect to this Indenture or any Security.

 

BOARD OF DIRECTORS OF THE GUARANTOR

 

The term “Board of Directors of the Guarantor” shall mean the Board of Directors of the Guarantor, the Executive Committee of the Guarantor or any other committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.

 

BOARD RESOLUTION

 

The term “Board Resolution” shall mean a resolution certified by the Company Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant

 

2


 

to the authority of, the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

BOARD RESOLUTION OF THE GUARANTOR

 

The term “Board Resolution of the Guarantor” shall mean a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

BUSINESS DAY

 

The term “Business Day” shall mean, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.

 

CAPITALIZED LEASE OBLIGATION

 

The term “Capitalized Lease Obligation” means indebtedness represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP, and the amount of such indebtedness shall be the capitalized amount of such obligations determined in accordance with GAAP.

 

COMMISSION

 

The term “Commission” shall mean 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 Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

COMPANY

 

The term “Company” shall mean the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

COMPANY ORDER

 

The term “Company Order” means a written order signed in the name of the Company by the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

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CORPORATE TRUST OFFICE

 

The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602 Attention:  Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

COVENANT DEFEASANCE

 

The term “covenant defeasance” shall have the meaning specified in Section 13.03.

 

DEFEASANCE

 

The term “defeasance” shall have the meaning specified in Section 13.02.

 

DEPOSITARY

 

The term “Depositary” shall mean, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.

 

DOLLARS

 

The term “dollars” or “$” shall mean a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.

 

EVENT OF DEFAULT

 

The term “Event of Default” shall mean any event specified as such in or as contemplated by Section 6.01.

 

EXCHANGE ACT

 

The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

GAAP

 

The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.

 

GLOBAL SECURITY

 

The term “Global Security” means a Security in registered global form without interest coupons.

 

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GOVERNMENT OBLIGATION

 

The term “Government Obligation” shall have the meaning specified in Section 13.04.

 

GUARANTEE

 

The term “Guarantee” shall have the meaning specified in Article Fifteen.

 

GUARANTEE SUBORDINATION SECTIONS

 

The term “Guarantee Subordination Sections” shall have the meaning specified in Section 15.04.

 

GUARANTEED OBLIGATION

 

The term “Guaranteed Obligation” shall have the meaning specified in Section 15.01.

 

GUARANTEED SECURITIES OBLIGATION

 

The term “Guaranteed Securities Obligation” shall have the meaning specified in Section 15.01.

 

GUARANTOR

 

The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.

 

HOLDER

 

The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, shall mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

HOME COUNTRY JURISDICTION

 

The term “Home Country Jurisdiction” means the jurisdiction of organization of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.

 

INDENTURE

 

The term “Indenture” shall mean this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental

 

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hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.

 

INTEREST

 

The term “Interest” shall mean, when used with respect to non-interest bearing Securities, interest payable on or after maturity.

 

INTEREST PAYMENT DATE

 

The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.

 

JUNIOR SUBORDINATED INDEBTEDNESS

 

The term “Junior Subordinated Indebtedness of the Company” or “Junior Subordinated Indebtedness of the Guarantor” shall mean (i) indebtedness of the Company or the Guarantor, as applicable, (whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed by the Company or the Guarantor, as applicable) which, pursuant to the terms of the instrument creating or evidencing the same, is subordinate to the Securities in right of payment or in rights upon liquidation and (ii) as to the Company, indebtedness, if any, under the junior subordinated indenture dated as of January 13, 1997, amended and restated as of April 2, 2012, between the Company, the Guarantor and The Bank of New York Mellon Trust Company, N.A., as trustee.

 

OFFICERS’ CERTIFICATE

 

The term “Officers’ Certificate” shall mean a certificate signed by the Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

OFFICERS’ CERTIFICATE OF THE GUARANTOR

 

The term “Officers’ Certificate of the Guarantor” shall mean a certificate signed by the Chairman of the Board of Directors of the Guarantor or the President or any Executive Vice President or any Vice President or the Treasurer and by the Corporate Secretary or any Assistant Secretary of the Guarantor.

 

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OPINION OF COUNSEL

 

The term “Opinion of Counsel” shall mean an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor or who may be other counsel.

 

ORIGINAL ISSUE DISCOUNT SECURITIES

 

The term “Original Issue Discount Securities” shall mean a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.

 

OUTSTANDING

 

The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except

 

(a)                                  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(b)                                  Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice;

 

(c)                                   Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Company;

 

(d)                                  Securities which have been defeased pursuant to Section 13.02; and

 

(e)                                   Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange.

 

PAYMENT BLOCKAGE NOTICE

 

The term “Payment Blockage Notice” shall have the meaning specified in Section 15.05 when used in reference to the Guarantor, and the meaning specified in Section 16.02 when used in reference to the Company.

 

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PAYMENT BLOCKAGE PERIOD

 

The term “Payment Blockage Period” shall have the meaning specified in Section 15.05 when used in reference to the Guarantor, and the meaning specified in Section 16.02 when used in reference to the Company.

 

PERIODIC OFFERING

 

The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.

 

PERSON

 

The term “Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

PLACE OF PAYMENT

 

The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Company in the Borough of Manhattan, The City of New York, designated and maintained by the Company pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.

 

REGULAR RECORD DATE

 

The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.

 

RESPONSIBLE OFFICER

 

The term “Responsible Officer”, when used with respect to the Trustee, shall mean any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

SECURITY REGISTER AND SECURITY REGISTRAR

 

The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.

 

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SENIOR INDEBTEDNESS

 

The term “Senior Indebtedness of the Company” or “Senior Indebtedness of the Guarantor” shall mean the principal of and interest (including, without limitation, any interest accruing subsequent to the filing of a petition or other action concerning bankruptcy or other similar proceedings) on the following, whether presently outstanding or hereafter incurred: (a) all indebtedness of the Company or the Guarantor, as applicable, (i) for money borrowed (other than that evidenced by the Securities), (ii) which is evidenced by a note, debenture or similar instrument (including a purchase money mortgage) given in connection with the acquisition of any property or assets (other than inventory or other similar property acquired in the ordinary course of business), including securities, or (iii) for the payment of money relating to a Capitalized Lease Obligation; (b) any liabilities of others described in the preceding clause (a) which the Company or the Guarantor, as applicable, has guaranteed or which is otherwise its legal liability; (c) indebtedness of the Company or the Guarantor, as applicable, under interest rate swaps, caps or similar hedging agreements and foreign exchange contracts, currency swaps or similar agreements; and (d) renewals, extensions, refundings, restructurings, amendments and modifications of any such indebtedness or guarantee.  Notwithstanding anything to the contrary in this Indenture or the Securities, “Senior Indebtedness of the Company” or “Senior Indebtedness of the Guarantor” shall not include (w) any indebtedness of the Company or the Guarantor, as applicable, to a subsidiary, (y) any Junior Subordinated Indebtedness of the Company or Junior Subordinated Indebtedness of the Guarantor, as applicable or (z) any indebtedness of the Company or the Guarantor, as applicable, which expressly provides that such indebtedness ranks equally or “pari passu” in right of payment or in rights upon liquidation to the Securities.

 

SHARES

 

The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of the Company authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Company which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.

 

TAXES

 

The term “Taxes” shall have the meaning specified in Section 4.05.

 

TRUST INDENTURE ACT

 

Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

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UNITED STATES

 

The term “United States” shall mean the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.

 

ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES

 

Section 2.01.                               Amount Unlimited; Issuable in Series .  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series.  There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

 

(1)                                  the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(2)                                  any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms);

 

(3)                                  whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security;

 

(4)                                  the date or dates on which the principal of the Securities of the series is payable;

 

(5)                                  the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date;

 

(6)                                  whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture;

 

(7)                                  the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable;

 

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(8)                                  the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, repurchased or repaid, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;

 

(9)                                  the obligation, if any, of the Company to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Company to select the Securities to be redeemed, repurchased or repaid;

 

(10)                           if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than dollars;

 

(11)                           the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;

 

(12)                           if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02;

 

(13)                           if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series);

 

(14)                           any deletions from, modifications of or additions to the Events of Default or covenants of the Company and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein);

 

(15)                           whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any

 

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deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and

 

(16)                           any other terms of the Securities of the series.

 

All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officers’ Certificate or in any such indenture supplemental hereto.

 

If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.

 

With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officers’ Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.

 

Section 2.02.                               Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:

 

[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

 

 

Dated:

 

 

By:

 

 

 

 

Authorized Officer

 

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Section 2.03.                               Form, Execution, Authentication, Delivery and Dating of Securities .  The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officers’ Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities.  Such Securities may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.

 

Each Security shall be executed on behalf of the Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary.  Such signatures may be the manual or facsimile signatures of the present or any future such officers.

 

With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be manual or facsimile.

 

Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee.  At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series.  If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate pursuant to Section 17.04 and an Opinion of Counsel stating:

 

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(a)                                  if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;

 

(b)                                  if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and

 

(c)                                   that each such Security, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.

 

If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 2.01 if such Officers’ Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.

 

Every Security shall be dated the date of its authentication.

 

No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.

 

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Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

Section 2.04.                               Currency; Denominations; Regular Record Date .  Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.

 

The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01.  In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.

 

The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, The City of New York are authorized by law or required by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.

 

The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Section 2.05.                               Exchange and Registration of Transfer of Securities .  Securities of any series may be exchanged for a like aggregate principal amount of Securities of

 

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other authorized denominations of such series.  Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.

 

The Company (or its designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided.  The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time.  At all reasonable times the Security Register shall be open for inspection by the Trustee.  Upon due presentment for registration of transfer of any Security of a particular series at such office or agency, the Company shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Company or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.

 

All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.

 

All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith .

 

The Company shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased, or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.

 

Section 2.06.                               Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced).  Temporary Securities of any series shall be issuable in any

 

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authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution.  Every temporary Security shall be executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Company shall execute and shall furnish definitive Securities of such series evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations.  Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

 

Section 2.07.                               Mutilated, Destroyed, Lost or Stolen Securities .  In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof.  The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company.  Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution.  In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the

 

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Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to the satisfaction of the Company of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

 

All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

Section 2.08.                               Securities in Global Form .  If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.

 

Section 2.09.                               Cancellation .  All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture.  The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Company or, if requested to do so by the Company, shall return such cancelled Securities to the Company.

 

Section 2.10.                               Computation of Interest .  Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

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Section 2.11.                               CUSIP Numbers .  The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

ARTICLE THREE
REDEMPTION OF SECURITIES

 

Section 3.01.                               Redemption of Securities; Applicability of Article .  Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.

 

Section 3.02.                               Tax Redemption The Company shall have the option to redeem the Securities of any series, in whole but not in part, at any time prior to the maturity date of the principal of the Securities of any series, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption, if, with respect to such series:

 

(a)                                  the Company determines that, as a result of:

 

(1)                                  any change in, amendment to, or announced proposed change in the laws or any regulations or rulings promulgated thereunder of a Home Country Jurisdiction (or of any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the jurisdiction in which such successor Person is organized (or deemed resident for tax purposes); or

 

(2)                                  any change in the application or official interpretation of such laws, regulations or rulings, or (in either case) any change in the application or official interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which any such jurisdiction is a party, which change, execution or amendment becomes effective on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor

 

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Person not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), with respect to taxes imposed by such other jurisdiction in accordance with Section 11.01, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series or, if applicable, in the Guarantee relating to such Securities of such series,

 

the Company, the Guarantor or such successor Person, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company, the Guarantor, as applicable, or such successor Person; or

 

(b)                                  the Company determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Home Country Jurisdiction (or any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the jurisdiction in which such successor Person is organized (or deemed resident for tax purposes), which action is taken or brought on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, with respect to taxes imposed by such other jurisdiction, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series, that there is a substantial probability that the circumstances described in subsection (a) above would exist.

 

(c)                                   Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.

 

(d)                                  The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person will also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price.

 

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(e)                                   Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company will deliver to the Trustee an Officer’s Certificate stating that the Company is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and, if the redemption is pursuant to clause (b) above, the opinion of independent counsel referred to in such clause (b), which shall be in a form satisfactory to the Trustee. Delivery of any notice of redemption pursuant to this Section 3.02 will be conclusive and binding on the Holders of the Securities being redeemed. Once the Company delivers such an Officer’s Certificate to the Trustee, any notice of redemption that has been given shall be irrevocable.

 

Section 3.03.                               Notice of Redemption; Selection of Securities .  In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, it shall fix a date for redemption, it shall prepare the notice of such redemption and it shall mail or, at the Company’s request and expense, the Trustee shall mail such notice of redemption at least thirty (30) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register.  Such mailing shall be by prepaid first class mail or in the case of global securities, delivered electronically to the Depository.  Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice.  In any case, failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.

 

Each notice of redemption shall specify the date fixed for redemption, the redemption price at which the applicable Securities are to be redeemed, the Place of Payment, that payment will be made upon presentation and surrender of such Securities and that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange,

 

Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption.  The

 

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Company will give the Trustee notice of each redemption at least forty-five (45) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.

 

If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair and, if applicable, in accordance with the procedures of the Depositary, the Securities of such series to be redeemed; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.

 

Section 3.04.                               Payment of Securities Called for Redemption .  If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of Payment stated in such notice at the applicable redemption price and on and after said date (unless the Company and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue.  On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Company at the applicable redemption price.  Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Company shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04.  At the option of the Company, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.

 

Upon presentation of any Security redeemed in part only (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.

 

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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY

 

Section 4.01.                               Payment of Principal, Premium and Interest .  The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture.  The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Company may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.

 

Section 4.02.                               Offices for Notices and Payments, etc .  As long as any of the Securities of a series remain outstanding, the Company will designate and maintain, in the City of Chicago and the Borough of Manhattan, The City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Company in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment.  The Company will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof.  In case the Company shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee in the City of Chicago and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes.  The Company will 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 each of                      , located at                             and                            as a Security Registrar and as the office or agency of the Company in the City of Chicago and the Borough of Manhattan, the City of New York, respectively, where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities of any series or of this Indenture may be served.

 

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Section 4.03.                               Provisions as to Paying Agent .

 

(a)                                  Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,

 

(1)                                  that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,

 

(2)                                  that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held,

 

(3)                                  that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and

 

(4)                                  at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent.

 

(b)                                  If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due.  The Company will promptly notify the Trustee of any failure to take such action.

 

(c)                                   Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

(d)                                  Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.

 

(e)                                   Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03.

 

(f)                                    To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities

 

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is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis , to such Shares or other securities or property.

 

Section 4.04.                               Statement by Officers as to Default .

 

(a)                                  The Company will 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, which shall include the statements provided for in Section 17.04 and stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by it and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge.

 

(b)                                  The Company will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default.

 

Section 4.05.                               Payment of Additional Amounts .

 

(a)                                  All payments of principal of and premium, if any, and interest, if any, on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee shall be free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed or levied by or on behalf of the government of a Home Country Jurisdiction, any territory of a Home Country Jurisdiction or any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the extent such Taxes are required to be withheld or deducted by law or by the interpretation or administration thereof.

 

If the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each beneficial owner (including such Additional Amounts), after such withholding or deduction, shall not be less than the amount such beneficial owner would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:

 

(1)                                  that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Home Country Jurisdiction

 

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or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;

 

(2)                                  that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;

 

(3)                                  payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;

 

(4)                                  that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:

 

(i)                                      such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and

 

(ii)                                   at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;

 

(5)                                  that would not have been imposed but for the presentation of a Security or, as applicable, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;

 

(6)                                  that are imposed on a payment and are required to be made pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive, or any law implementing or complying with, or introduced in order to conform to, such directive or directives;

 

(7)                                  that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;

 

(8)                                  that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of

 

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Article Fifteen shall apply, the Guarantee, had been made to a paying agent other than the paying agent to which the presentation was made; or

 

(9)                                  any combination of the foregoing clauses (1) through (8);

 

nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security.

 

(b)                                  All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.

 

(c)                                   The Company shall maintain, in respect of Securities of each series outstanding, at least one paying agent located outside the United Kingdom. In the event that a paying agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a paying agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive or any law implementing or complying with, or introduced in order to conform to such directive or directives, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such directive.

 

(d)                                  The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.

 

(e)                                   If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), such successor Person will pay Additional Amounts on the same basis set forth in this Section 4.05, except that references to “Home Country Jurisdiction” will be treated as references to both the Home Country Jurisdictions at the issue date of the Securities of such series and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).

 

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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE

 

Section 5.01.                               Securityholder Lists .  The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:

 

(a)                                  semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company; and

 

(b)                                  at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished;

 

provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.

 

Section 5.02.                               Preservation and Disclosure of Lists .

 

(a)  The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.

 

(b)                                  In case three or more Holders of Securities of a series (hereinafter referred to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants’ desire to communicate with other Holders of Securities of such series or with Holders of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five (5) Business Days after the receipt of such application, at its election, either

 

(1)                                  afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or

 

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(2)                                  inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five (5) days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law.  Such written statement shall specify the basis of such opinion.  If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holder with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c)                                   Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent of the Company or of the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with the provisions of subsection (b) of this Section, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).

 

Section 5.03.                               Reports by the Company .  The Company covenants:

 

(a)                                  to file with the Trustee within thirty (30) days after the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a

 

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security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)                                  to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and

 

(c)                                   to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

Section 5.04.                               Reports by the Trustee .

 

(a)                                  The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a).

 

(b)                                  A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Company.  The Company agrees to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange.

 

ARTICLE SIX
REMEDIES ON DEFAULT

 

Section 6.01.                               Events of Default .  In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:

 

(a)                                  default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), whether or not prohibited by Article Sixteen, either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or

 

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(b)                                  default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, whether or not prohibited by Article Sixteen, and continuance of such default for a period of thirty (30) days; or

 

(c)                                   with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or

 

(d)                                  failure on the part of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, the Guarantor in this Indenture applicable to Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Company or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company or if applicable, the Guarantor by the Trustee, or to the Company and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or

 

(e)                                   a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of the Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or

 

(f)                                    except for any case, proceeding, meeting, resolution or order in connection with a winding-up of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of the Company or the Guarantor, as applicable, either the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any

 

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substantial part of the property of the Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors;

 

(g)                                   default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 or upon the exchange of any Security of such series which is exchangeable for other securities or property, whether or not prohibited by Article Sixteen, and continuance of such default for a period of 10 Business Days; or

 

(h)                                  any other Event of Default provided with respect to Securities of such series;

 

then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.

 

The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that the terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their

 

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terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.

 

Section 6.02.                               Payment of Securities on Default; Suit Therefor .  The Company covenants that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be); 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 willful misconduct.

 

In case the Company shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.

 

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In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, the Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to the Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such 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 willful misconduct.

 

Nothing herein contained shall be deemed to authorize 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 Securities 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.

 

All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial

 

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proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 6.03.                               Application of Moneys Collected by Trustee .  Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

FIRST:  To the payment of reasonable costs and expenses applicable to such Securities of 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 willful misconduct;

 

SECOND:  In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;

 

THIRD:  In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if any, and (to the extent that such interest has been collected by the Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and

 

FOURTH:  Any remainder to the Company or as a court of competent jurisdiction may direct.

 

Section 6.04.                               Proceedings by Securityholders .  No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or

 

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under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing himself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.  For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.  With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.

 

Section 6.05.                               Remedies Cumulative and Continuing .  All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.

 

Section 6.06.                               Direction of Proceedings .  The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to 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, with respect to the Securities

 

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of such series; provided, however, that (subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) 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 action or proceedings so directed would involve the Trustee in personal liability.

 

Section 6.07.                               Notice of Defaults .  The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, 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 or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.

 

Section 6.08.                               Undertaking to Pay Costs .  All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.

 

Section 6.09.                               Waiver of Past Defaults .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

 

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(1)                                  in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series;

 

(2)                                  in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or

 

(3)                                  in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series 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 and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

ARTICLE SEVEN
CONCERNING THE TRUSTEE

 

Section 7.01.                               Duties and Responsibilities of Trustee .  The Trustee, except during the continuance of an Event of Default of a particular series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(a)                                  prior to the occurrence of an Event of Default with respect to a particular series and after the curing or waiving of all Events of Default with respect to such series which may have occurred:

 

(1)                                  the duties and obligations of the Trustees with respect to such series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)                                  in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements

 

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of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);

 

(b)                                  the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(c)                                   the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

Whether or not therein 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 Section.

 

No provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

Section 7.02.                               Reliance on Documents, Opinions, etc .  Subject to the provisions of Section 7.01:

 

(a)                                  the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(b)                                  any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by the Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; any request, direction, order or demand of the Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Guarantor by the Chairman of the Board of Directors of the Guarantor or any Vice Chairman of the Board of Directors of the Guarantor or its President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution of the Guarantor may be

 

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evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Guarantor;

 

(c)                                   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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel;

 

(d)                                  the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby;

 

(e)                                   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, coupon 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 or the Guarantor personally or by agent or attorney;

 

(f)                                    the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder;

 

(g)                                   the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(h)                                  in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(i)                                      the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written knowledge thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(j)                                     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

 

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(k)                                  the Trustee may request that the Company or the Guarantor deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

Section 7.03.                               No Responsibility for Recitals, etc .  The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture.  The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

Section 7.04.                               Ownership of Securities .  The Trustee or any agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company, the Guarantor or the Trustee.

 

Section 7.05.                               Moneys to Be Held in Trust .  Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.  Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.  So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Company, signed by its Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President or its Treasurer or any Assistant Treasurer.

 

Section 7.06.                               Compensation, Indemnification and Expenses of Trustee .  The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct.  The Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises.  The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder.  Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds

 

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held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.

 

Section 7.07.                               Officers’ Certificate as Evidence .  Subject to the provisions of Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate or an Officers’ Certificate of the Guarantor, as applicable, delivered to the Trustee, and such Certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 7.08.                               Conflicting Interest of Trustee .

 

(a)                                  If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act.

 

(b)                                  In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by the conflicting interest as the names and addresses of such Holders appear on the Security Register.

 

Section 7.09.                               Eligibility of Trustee .  There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by Federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars.  If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case 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 Section 7.10.

 

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Section 7.10.                               Resignation or Removal of Trustee .

 

(a)  The Trustee, or any trustee or trustees hereafter appointed, may, upon sixty (60) days’ written notice to the Company, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company, and by mailing notice of such resignation to the Holders of then outstanding Securities of each series affected at their addresses as they shall appear on the Security Register.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the mailing of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(b)                                  In case at any time any of the following shall occur:

 

(1)                                  the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or

 

(2)                                  the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or

 

(3)                                  the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

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(c)                                   The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Company and appoint a successor trustee with respect to the Securities of such series with the consent of the Company.

 

(d)                                  Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.

 

(e)                                   Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.

 

Section 7.11.                               Acceptance by Successor Trustee .  Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act.  Upon request of any such successor trustee, the Company and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.

 

In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.

 

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No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.

 

Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register.  If the Company fails to mail such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Company.

 

Section 7.12.                               Successor by Merger, etc .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 7.13.                               Limitations on Rights of Trustee as Creditor .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS

 

Section 8.01.                               Action by Securityholders .  Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series 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 Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.

 

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In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken 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 principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.

 

Section 8.02.                               Proof of Ownership .  Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.

 

Section 8.03.                               Who Are Deemed Absolute Owners .  The Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.

 

If the Company or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Company or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.

 

Section 8.04.                               Company-Owned Securities Disregarded .  In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Company or by any person directly or indirectly controlling or controlled by or under direct or indirect control with the Company, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the

 

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Trustee knows are so owned shall be disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.

 

Section 8.05.                               Revocation of Consents; Future Securityholders Bound .  At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security.  Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security.  Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.

 

ARTICLE NINE
SECURITYHOLDERS’ MEETINGS

 

Section 9.01.                               Purposes of Meetings .  A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:

 

(1)                                  to give any notice to the Company, the Guarantor (if applicable) or 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 Securityholders pursuant to any of the provisions of Article Six;

 

(2)                                  to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven;

 

(3)                                  to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or

 

(4)                                  to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law.

 

Section 9.02.                               Call of Meetings by Trustee .  The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, 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 of Securities of any or all series,

 

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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 to all Holders of then Outstanding Securities of such series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (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 Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series 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 9.03.                               Call of Meetings by Company or Securityholders .  In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Company or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing or publishing notice thereof as provided in Section 9.02.

 

Section 9.04.                               Qualification for Voting .  To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder.  The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders 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 9.05.                               Regulations .  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities 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 it 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 Securityholders as provided in Section 9.03, in which case the Company or the Securityholders 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 Securities represented at the meeting and entitled to vote.

 

Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him;

 

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provided, however, that no vote shall be cast or counted at any meeting in respect of any Security 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 Securityholder or proxy.  Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.

 

Section 9.06.                               Voting .  The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders 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 Securities 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 Securityholders 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 9.02.  The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

ARTICLE TEN
SUPPLEMENTAL INDENTURES

 

Section 10.01.                        Supplemental Indentures without Consent of Securityholders .  The Company, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes:

 

(a)                                  to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Article Eleven hereof;

 

(b)                                  to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Company or the Guarantor;

 

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(c)                                   to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series;

 

(d)                                  to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect;

 

(e)                                   to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities;

 

(f)                                    to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; and

 

(g)                                   to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03.

 

The Trustee is hereby authorized to join with the Company and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.

 

Section 10.02.                        Supplemental Indentures with Consent of Securityholders .  With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Company, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any

 

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of the provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:

 

(a)                                  extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security;

 

(b)                                  impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor);

 

(c)                                   reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults;

 

(d)                                  make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or

 

(e)                                   modify any of the provisions of this Section or Section 6.09, 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 Security affected thereby; provided however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e).

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Upon the request of the Company and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

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It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Promptly after the execution and delivery by the Company, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register.  Any failure of the Company or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.

 

Section 10.03.                        Compliance with Trust Indenture Act; Effect of Supplemental Indentures .  Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act of 1939, as amended and then in effect.  Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officers’ Certificate, and an Officers’ Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.

 

Section 10.04.                        Notation on Securities .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  New Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.

 

ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 11.01.                        Company and Guarantor May Consolidate, etc., Only on Certain Terms .  So long as any Securities shall be Outstanding, neither the Company nor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the

 

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Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:

 

(a)                                  (1) The Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which the Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety:

 

(i)                                      expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and

 

(ii)                                   in the case of the Guarantor, is a corporation or other entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia.

 

(b)                                  immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or the Guarantor, as applicable, as a result of such transaction as having been incurred by the Company or the Guarantor, as applicable, 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; and

 

(c)                                   the Company has delivered to the Trustee an Officers’ Certificate or the Guarantor has delivered to the Trustee an Officers’ Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 11.02.                        Successor Person Substituted .  So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company or the Guarantor, as applicable, is merged or converted or to which such

 

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conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS

 

Section 12.01.                        Discharge of Indenture .  This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when

 

(a)                                  either:

 

(i)                                      all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or

 

(ii)                                   all such Securities of such series not theretofore delivered to the Trustee for cancellation:

 

(A)                                have become due and payable; or

 

(B)                                will become due and payable at their stated maturity within one year; or

 

(C)                                are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;

 

and the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any)

 

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with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;

 

(b)                                  the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and

 

(c)                                   the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:

 

(1)   All obligations under Section 7.06;

 

(2)   If money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02, 12.04, and 12.05;

 

(3)   Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Company or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and

 

(4)   Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares, securities or other property.

 

After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Company’s and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.

 

Section 12.02.                        Deposited Moneys to Be Held in Trust by Trustee .  Subject to Section 12.04, all moneys deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums

 

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due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.

 

Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of the Company or the Guarantor, as the case may be, any money held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money was deposited.

 

Section 12.03.                        Paying Agent to Repay Moneys Held .  In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.

 

Section 12.04.                        Return of Unclaimed Moneys .  Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Company or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.

 

Section 12.05.                        Effect on Subordination Provisions . Unless otherwise expressly provided pursuant to Section 2.01 with respect to the Securities of any series, the provisions of Article Sixteen hereof, insofar as they pertain to the Securities of such series, are hereby expressly made subject to the provisions for satisfaction and discharge set forth in this Article and, anything herein to the contrary notwithstanding, upon the effectiveness of such satisfaction and discharge pursuant to this Article with respect to the Securities of such series, all of the Securities of such series shall thereupon cease to be so subordinated and shall no longer be subject to the provisions of Article Sixteen and, without limitation to the foregoing, all moneys, Government Obligations and Shares or other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such satisfaction and discharge and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on such Securities as and when the same shall become due and payable notwithstanding the provisions of Article Sixteen.

 

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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE

 

Section 13.01.                        Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance .  Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.

 

Section 13.02.                        Defeasance and Discharge .  Upon the Company’s exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance” ).  Defeasance shall mean that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided , however , that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen.  Subject to compliance with this Article Thirteen, the Company may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.

 

Section 13.03.                        Covenant Defeasance .  Upon the Company’s exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such

 

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series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance” ).  Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.

 

Section 13.04.                        Conditions to Defeasance or Covenant Defeasance .  The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:

 

(a)                                  The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Governmental Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, 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, and which shall be applied by the Trustee (or other qualifying trustee)  to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities.  For this purpose, “Government Obligations” means securities that are (I) direct obligations of the government which issued the currency in which the Securities of such series are denominated 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 such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of

 

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1933, as amended) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such 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 such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.

 

(b)                                  No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(c)                                   Such defeasance or covenant defeasance shall 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.

 

(d)                                  Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted.

 

(e)                                   In the case of an election with respect to Section 13.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable Federal income tax law (including, but not limited to, a change in the Code, proposed, temporary or final Treasury regulations, Revenue Rulings, Revenue Procedures, Internal Revenue Service Notices, Announcements, and other public announcements), in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

 

(f)                                    In the case of an election with respect to Section 13.03, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same

 

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manner and at the same times as would have been the case if such covenant defeasance had not occurred.

 

(g)                                   Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.

 

(h)                                  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with.

 

(i)                                      If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a), Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.

 

Section 13.05.                        Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.

 

Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations were deposited.

 

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Section 13.06.                        Effect on Subordination Provisions . Unless otherwise expressly provided pursuant to Section 2.01, with respect to the Securities of any series, the provisions of Article Sixteen hereof, insofar as they pertain to the Securities of such series, are hereby expressly made subject to the provisions for defeasance and covenant defeasance set forth in this Article and, anything herein to the contrary notwithstanding, upon the effectiveness of any such defeasance or covenant defeasance pursuant to this Article with respect to the Securities of such series, all of the Securities of such series as to which defeasance or covenant defeasance, as the case may be, shall have become effective shall thereupon cease to be so subordinated and shall no longer be subject to the provisions of Article Sixteen with respect to such Securities and, without limitation to the foregoing, all moneys, Government Obligations and Shares or other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such defeasance or covenant defeasance, as the case may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on such Securities as and when the same shall become due and payable notwithstanding the provisions of Article Sixteen.

 

ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS

 

Section 14.01.                        Indenture and Securities Solely Corporate Obligations .  No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Company, the Guarantor or any successor Person to either of them, either directly or through the Company, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.

 

ARTICLE FIFTEEN
GUARANTEE

 

Section 15.01.                        Guarantee .  The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture or otherwise with respect to the Securities registered in such Holder’s name (each a “Guaranteed Securities Obligation” and, collectively, “the Guaranteed Securities Obligations”), and (b) the

 

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Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture to the Trustee (together with a Guaranteed Securities Obligation, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.

 

The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification or consent granted to the Company with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.

 

The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Company, first make demand upon or seek to enforce remedies against the Company or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.

 

The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.

 

The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Company, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.

 

The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.

 

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The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of the Company or otherwise.

 

The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Company or by any defense which the Company may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.  No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.

 

Section 15.02.                        Subrogation . The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.

 

Section 15.03.                        Notation of Guarantee .  To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.

 

The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.

 

The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.

 

Section 15.04.                        Agreement To Subordinate .  The Guarantor, for itself and its successors, and each Holder, by his acceptance of Securities, agree that the payment of Guaranteed Securities Obligations is subordinated in right of payment, to the extent and in the manner stated in this Article, to the prior payment in full of all Senior Indebtedness of the Guarantor.  Each Holder by its acceptance of the Securities authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate, as between the holders of Senior Indebtedness of the Guarantor and such Holder, the subordination provided in Sections 15.04, 15.05, 15.06, 15.07, 15.08 and 15.09 (collectively, the “Guarantee Subordination Sections”) and appoints the Trustee as his attorney-in-fact for such purpose.  If the Trustee does not file a proper claim or proof of debt in the form required in any voluntary or involuntary dissolution, winding up, liquidation, reorganization, arrangement or similar proceedings relating to the Guarantor prior to 30 days before the expiration of time to file such claim or claims, then any holder or holders of Senior Indebtedness of the Guarantor or their representative or

 

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representatives are hereby authorized to and have the right to file an appropriate claim for and on behalf of the Holders.  The Guaranteed Securities Obligations shall be senior in right of payment and in rights upon liquidation to all Junior Subordinated Indebtedness of the Guarantor.

 

Section 15.05.                        No Payment of Guaranteed Securities Obligations if Senior Indebtedness of the Guarantor in Default .  Anything in this Indenture to the contrary notwithstanding, no payment of Guaranteed Securities Obligations shall be made by or on behalf of the Guarantor (i) unless full payment of amounts then due for principal, sinking funds and interest and of all other amounts then due on all Senior Indebtedness of the Guarantor has been made or duly provided for pursuant to the terms of the instrument governing such Senior Indebtedness of the Guarantor, (ii) if, at the time of such payment, redemption, purchase or other acquisition, or immediately after giving effect thereto, there shall exist under any Senior Indebtedness of the Guarantor, or any agreement pursuant to which any Senior Indebtedness of the Guarantor is issued, any default, which default shall not have been cured or waived and which default shall have resulted in the full amount of such Senior Indebtedness of the Guarantor being declared due and payable or (iii) if, at the time of such payment, redemption, purchase or other acquisition, the Trustee shall have received written notice from the holder or holders of any Senior Indebtedness of the Guarantor or their representative or representatives (a “Payment Blockage Notice”) that there exists under such Senior Indebtedness of the Guarantor, or any agreement pursuant to which such Senior Indebtedness of the Guarantor is issued, any default, which default shall not have been cured or waived, permitting the holders thereof to declare the full amount of such Senior Indebtedness of the Guarantor due and payable, but only for the period (the “Payment Blockage Period”) commencing on the date of receipt of the Payment Blockage Notice and ending (unless earlier terminated by notice given to the Trustee by the holders of such Senior Indebtedness of the Guarantor) on the earlier of (A) the date on which such event of default shall have been cured or waived or (B) 180 days from the receipt of the Payment Blockage Notice.  Upon termination of a Payment Blockage Period, payments on account of principal of, and premium, if any, and interest, if any, on, or any other amounts payable with respect to the Securities (other than amounts due and payable by reason of the acceleration of the maturity of the Securities) and redemptions, purchases or other acquisitions may be made by or on behalf of the Guarantor.  Notwithstanding anything herein to the contrary, (A) only one Payment Blockage Notice may be given during any period of 360 consecutive days with respect to the same event of default and any other events of default on the same issue of Senior Indebtedness of the Guarantor existing and known to the Person giving such notice at the time of such notice and (B) no new Payment Blockage Period may be commenced by the holder or holders of the same issue of Senior Indebtedness of the Guarantor or their representative or representatives during any period of 360 consecutive days unless all events of default which were the object of the immediately preceding Payment Blockage Notice, and any other event of default on the same issue of Senior Indebtedness of the Guarantor existing and known to the Person giving such notice at the time of such notice, have been cured or waived.  The provisions of this Section 15.05 shall not prevent a sinking fund payment (if any) in respect of Guaranteed Securities Obligations made with Securities properly acquired prior to the happening of such default.  In the event that, notwithstanding the provisions of this Section 15.05, payments are made by or on behalf of the Guarantor in contravention of the provisions of this Section 15.05, such payments shall be held by the Trustee, any paying agent or the Holders, as applicable, in trust for the benefit of, and shall be paid over to and delivered to, at the written direction of, the holders of Senior Indebtedness of the Guarantor or their representative or the trustee under the

 

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indenture or other agreement (if any), pursuant to which any instruments evidencing any Senior Indebtedness of the Guarantor may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness of the Guarantor remaining unpaid to the extent necessary to pay all Senior Indebtedness of the Guarantor in full in accordance with the terms of such Senior Indebtedness of the Guarantor, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness of the Guarantor.

 

The Guarantor shall give prompt written notice to the Trustee and any paying agent of any default under any Senior Indebtedness of the Guarantor or under any agreement pursuant to which any Senior Indebtedness of the Guarantor may have been issued.

 

Section 15.06.                        Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities .

 

(a) Upon (i) any acceleration of the principal amount due on the Securities because of an Event of Default or (ii) any distribution of assets of the Guarantor upon any dissolution, winding up, liquidation or reorganization of the Guarantor (whether in administration, bankruptcy, insolvency, administration or receivership proceedings or upon an assignment for the benefit of creditors or any other dissolution, winding up, liquidation or reorganization of the Guarantor and other than in respect of a solvent winding up or a reconstruction):

 

(1)                                  the holders of all Senior Indebtedness of the Guarantor shall first be entitled to receive payment in full of the principal thereof, the interest thereon and any other amounts due thereon before the Holders are entitled to receive payment of Guaranteed Securities Obligations;

 

(2)                                  any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities other than securities of the Guarantor as reorganized or readjusted or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in the Guarantee Subordination Sections with respect to the Guaranteed Securities Obligations, to the payment in full without diminution or modification by such plan of all Senior Indebtedness of the Guarantor, to which the Holders or the Trustee would be entitled except for the provisions of the Guarantee Subordination Sections, shall be paid by the liquidating trustee or agent or other Person making such a payment or distribution, directly to the holders of Senior Indebtedness of the Guarantor (or their representatives) or trustee(s) acting on their behalf, ratably according to the aggregate amounts remaining unpaid on account of the principal of and premium, if any, and interest, if any on, and other amounts due on the Senior Indebtedness of the Guarantor held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness of the Guarantor remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Guarantor; and

 

(3)                                  in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property

 

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or securities other than securities of the Guarantor as reorganized or readjusted or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in the Guarantee Subordination Sections with respect to the Guaranteed Securities Obligations, to the payment in full without diminution or modification by such plan of Senior Indebtedness of the Guarantor, shall be received by the Trustee or the Holders before all Senior Indebtedness of the Guarantor is paid in full, such payment or distribution shall be held in trust for the benefit of, and be paid over to, at the written direction of, the holders of the Senior Indebtedness of the Guarantor remaining unpaid (or their representatives) or trustee(s) acting on their behalf, ratably as aforesaid, for application to the payment of such Senior Indebtedness of the Guarantor until all such Senior Indebtedness of the Guarantor shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Guarantor.

 

Subject to the payment in full of all Senior Indebtedness of the Guarantor, the Holders shall be subrogated to the rights of the holders of Senior Indebtedness of the Guarantor to receive payments or distributions of cash, property or securities of the Guarantor applicable to the Senior Indebtedness of the Guarantor until the Guaranteed Securities Obligations shall be paid in full and, for purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of the Guarantor of cash, property or securities which otherwise would have been payable or distributable to Holders shall, as between the Guarantor, its creditors other than the holders of Senior Indebtedness of the Guarantor, and the Holders, be deemed to be a payment by the Guarantor to or on account of the Senior Indebtedness of the Guarantor, it being understood that the provisions of the Guarantee Subordination Sections are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness of the Guarantor, on the other hand.

 

Nothing contained in the Guarantee Subordination Sections or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Guarantor and its creditors other than the holders of Senior Indebtedness of the Guarantor, the obligation of the Guarantor, which is absolute and unconditional, to pay to the Holders all amounts due with respect to the Guaranteed Securities Obligations as and when the same shall become due and payable in accordance with the terms of this Indenture and the Securities or is intended to or shall affect the relative rights of the Holders and creditors of the Guarantor other than holders of Senior Indebtedness of the Guarantor or, as between the Guarantor and the Trustee, the obligations of the Guarantor to the Trustee, nor shall anything herein or therein prevent the Trustee or the Holders from exercising all remedies otherwise permitted by law upon default under this Indenture, subject to the rights, if any, under the Guarantee Subordination Sections of the holders of Senior Indebtedness of the Guarantor in respect of cash, property and securities of the Guarantor received upon the exercise of any such remedy.  Upon distribution of assets of the Guarantor referred to in the Guarantee Subordination Sections, the Trustee, subject to the provisions of Section 7.01 hereof, and the Holders shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Guarantor and other indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all

 

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other facts pertinent thereto or to the Guarantee Subordination Sections.  The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Guarantor.  Nothing contained in the Guarantee Subordination Sections or elsewhere in this Indenture, or in any of the Securities, shall prevent the application by the Trustee of any moneys which were deposited with it hereunder, prior to its receipt of written notice of facts which would prohibit such application, for the purpose of the payment of Guaranteed Securities Obligations unless, prior to the date on which such application is made by the Trustee, the Trustee shall be charged with notice under Section 15.06(c) hereof of the facts which would prohibit the making of such application.

 

(b)  The provisions of the Guarantee Subordination Sections shall not be applicable to the rights of the Trustee under Section 7.06 hereof or to any cash, properties or securities received by the Trustee or by any Holder when received as a holder of Senior Indebtedness of the Guarantor and nothing in this Indenture shall deprive the Trustee or such Holder of any of its rights as such holder.

 

(c)  The Guarantor shall give prompt written notice to the Trustee of any fact known to the Guarantor which would prohibit the making of any payment of money to or by the Trustee in respect of the Securities pursuant to the provisions of the Guarantee Subordination Sections.  The Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled to assume that no such fact exists unless the Guarantor or any holder of Senior Indebtedness of the Guarantor or any trustee therefor has given such notice to the Trustee.  Notwithstanding the provisions of the Guarantee Subordination Sections or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any fact which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions in the Guarantee Subordination Sections, unless, and until three Business Days after, the Trustee shall have received written notice thereof at the address designated pursuant to Section 17.03 hereof from the Guarantor or any holder or holders of Senior Indebtedness of the Guarantor or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled in all respects conclusively to assume that no such fact exists; provided that if on a date not less than three Business Days immediately preceding the date upon which by the terms hereof any such monies may become payable with respect to Guaranteed Securities Obligations, the Trustee shall not have received with respect to such monies the notice provided for in this Section 15.06(c), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.

 

The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the Guarantor (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness of the Guarantor (or a trustee on behalf of any such holder or holders).  In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Guarantor to participate in any payment or distribution pursuant to the Guarantee Subordination Sections, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of

 

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Senior Indebtedness of the Guarantor held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under the Guarantee Subordination Sections, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment; nor shall the Trustee be charged with knowledge of the curing or waiving of any default of the character specified in Section 15.05 hereof or that any event or any condition preventing any payment in respect of the Securities shall have ceased to exist, unless and until the Trustee shall have received an Officer’s Certificate to such effect.

 

(d)  The provisions of this Section 15.06 applicable to the Trustee shall also apply to any paying agent for the Guarantor.

 

Section 15.07.                        Reliance By Senior Indebtedness of the Guarantor On Subordination Provisions .  Each Holder of any Security by his acceptance thereof acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration for each holder of any Senior Indebtedness of the Guarantor, whether such Senior Indebtedness of the Guarantor was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness of the Guarantor, and such holder of Senior Indebtedness of the Guarantor shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness of the Guarantor.  Notice of any default in the payment of any Senior Indebtedness of the Guarantor, except as expressly stated in the Guarantee Subordination Sections, and notice of acceptance of the provisions hereof are hereby expressly waived.  Except as otherwise expressly provided herein, no waiver, forbearance or release by any holder of Senior Indebtedness of the Guarantor under such Senior Indebtedness of the Guarantor or under the Guarantee Subordination Sections shall constitute a release of any of the obligations or liabilities of the Trustee or Holders of the Securities provided in the Guarantee Subordination Sections.  Except as otherwise expressly provided herein, no right of any present or future holder of Senior Indebtedness of the Guarantor to enforce the subordination provisions hereof shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or any such holder or by any noncompliance by the Guarantor with the terms, provisions or covenants of this Indenture, regardless of any knowledge thereof which such holder may have otherwise been charged with.

 

Section 15.08.                        Trustee’s Relation To Senior Indebtedness of the Guarantor .  The Trustee in its individual capacity shall be entitled to all the rights set forth in the Guarantee Subordination Sections in respect of any Senior Indebtedness of the Guarantor at any time held by it, to the same extent as any holder of Senior Indebtedness of the Guarantor, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness of the Guarantor, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in the Guarantee Subordination Sections, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Guarantor shall be read into this Indenture against the Trustee.  The Trustee shall not owe any fiduciary duty to the holders of Senior Indebtedness of the Guarantor but shall have only such obligations to such holders as are expressly set forth in the Guarantee Subordination Sections.

 

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Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in the Guarantee Subordination Sections and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding up or liquidation or reorganization under any applicable bankruptcy law of the Guarantor (whether in administration, bankruptcy, insolvency or receivership proceedings or otherwise and other than in respect of a solvent reorganization or reconstruction), the timely filing of a claim for the unpaid balance of such Holder’s Securities in the form required in such proceedings and the causing of such claim to be approved.  If the Trustee does not file a claim or proof of debt in the form required in such proceedings prior to 10 days before the expiration of the time to file such claims or proofs, then the holders of Senior Indebtedness of the Guarantor, jointly, or their representative shall have the right to demand, sue for, collect, receive and receipt for the payments and distributions in respect of Guaranteed Securities Obligations which are required to be paid or delivered to the holders of Senior Indebtedness of the Guarantor as provided in the Guarantee Subordination Sections and to file and prove all claims therefor and to take all such other action in the name of the Holders or otherwise, as such holder of Senior Indebtedness of the Guarantor or representative thereof may determine to be necessary or appropriate for the enforcement of the provisions of the Guarantee Subordination Sections.

 

Section 15.09.                        Other Provisions Subject Hereto .  Except as expressly stated in the Guarantee Subordination Sections, notwithstanding anything contained in this Indenture to the contrary, all the provisions of this Indenture and the Securities are subject to the provisions of the Guarantee Subordination Sections.  However, nothing in the Guarantee Subordination Sections shall apply to or adversely affect the claims of, or payment to, the Trustee pursuant to Section 7.06.

 

ARTICLE SIXTEEN
SUBORDINATION OF THE SECURITIES

 

Section 16.01.                        Agreement To Subordinate .  The Company, for itself and its successors, and each Holder, by its acceptance of Securities, agree that the payment of the principal of and premium, if any, and interest on, if any, and any other amounts due on the Securities is subordinated in right of payment, to the extent and in the manner stated in this Article Sixteen, to the prior payment in full of all Senior Indebtedness of the Company.  Each Holder by its acceptance of the Securities authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate, as between the holders of Senior Indebtedness of the Company and such Holder, the subordination provided in this Article and appoints the Trustee as his attorney-in-fact for such purpose.  If the Trustee does not file a proper claim or proof of debt in the form required in any voluntary or involuntary dissolution, winding up, liquidation, reorganization, arrangement or similar proceedings relating to the Company prior to 30 days before the expiration of time to file such claim or claims, then any holder or holders of Senior Indebtedness of the Company or their representative or representatives are hereby authorized to and have the right to file an appropriate claim for and on behalf of the Holders.  The Securities shall be senior in right of payment and in rights upon liquidation to all Junior Subordinated Indebtedness of the Company.

 

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Section 16.02.                        No Payment On Securities If Senior Indebtedness of the Company In Default .  Anything in this Indenture to the contrary notwithstanding, no payment on account of the principal of and premium, if any, and interest on and other amounts due on the Securities, and no redemption, repurchase, or repayment of the Securities, shall be made by or on behalf of the Company (i) unless full payment of amounts then due for principal, sinking funds and interest and of all other amounts then due on all Senior Indebtedness of the Company has been made or duly provided for pursuant to the terms of the instrument governing such Senior Indebtedness of the Company, (ii) if, at the time of such payment, redemption, purchase or other acquisition, or immediately after giving effect thereto, there shall exist under any Senior Indebtedness of the Company, or any agreement pursuant to which any Senior Indebtedness of the Company is issued, any default, which default shall not have been cured or waived and which default shall have resulted in the full amount of such Senior Indebtedness of the Company being declared due and payable or (iii) if, at the time of such payment, redemption, purchase or other acquisition, the Trustee shall have received written notice from the holder or holders of any Senior Indebtedness of the Company or their representative or representatives (a “Payment Blockage Notice”) that there exists under such Senior Indebtedness of the Company, or any agreement pursuant to which such Senior Indebtedness of the Company is issued, any default, which default shall not have been cured or waived, permitting the holders thereof to declare the full amount of such Senior Indebtedness of the Company due and payable, but only for the period (the “Payment Blockage Period”) commencing on the date of receipt of the Payment Blockage Notice and ending (unless earlier terminated by notice given to the Trustee by the holders of such Senior Indebtedness of the Company) on the earlier of (A) the date on which such event of default shall have been cured or waived or (B) 180 days from the receipt of the Payment Blockage Notice.  Upon termination of a Payment Blockage Period, payments on account of principal of, and premium, if any, and interest, if any, on, or any other amounts payable with respect to the Securities (other than amounts due and payable by reason of the acceleration of the maturity of the Securities) and redemptions, purchases or other acquisitions may be made by or on behalf of the Company.  Notwithstanding anything herein to the contrary, (A) only one Payment Blockage Notice may be given during any period of 360 consecutive days with respect to the same event of default and any other events of default on the same issue of Senior Indebtedness of the Company existing and known to the Person giving such notice at the time of such notice and (B) no new Payment Blockage Period may be commenced by the holder or holders of the same issue of Senior Indebtedness of the Company or their representative or representatives during any period of 360 consecutive days unless all events of default which were the object of the immediately preceding Payment Blockage Notice, and any other event of default on the same issue of Senior Indebtedness of the Company existing and known to the Person giving such notice at the time of such notice, have been cured or waived.  The provisions of this Section 16.02 shall not prevent a sinking fund payment (if any) in respect of Securities made with Securities properly acquired prior to the happening of such default.  In the event that, notwithstanding the provisions of this Section 16.02, payments are made by or on behalf of the Company in contravention of the provisions of this Section 16.02, such payments shall be held by the Trustee, any paying agent or the Holders, as applicable, in trust for the benefit of, and shall be paid over to and delivered to, at the written direction of, the holders of Senior Indebtedness of the Company or their representative or the trustee under the indenture or other agreement (if any), pursuant to which any instruments evidencing any Senior Indebtedness of the Company may have been issued, as their respective interests may appear, for application to the

 

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payment of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all Senior Indebtedness of the Company in full in accordance with the terms of such Senior Indebtedness of the Company, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness of the Company.

 

The Company shall give prompt written notice to the Trustee and any paying agent of any default under any Senior Indebtedness of the Company or under any agreement pursuant to which any Senior Indebtedness of the Company may have been issued.

 

Section 16.03.                        Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities .  (a) Upon (i) any acceleration of the principal amount due on the Securities because of an Event of Default or (ii) any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company (whether in administration, bankruptcy, insolvency, administration or receivership proceedings or upon an assignment for the benefit of creditors or any other dissolution, winding up, liquidation or reorganization of the Company and other than in respect of a solvent winding up or reconstruction):

 

(1)                                  the holders of all Senior Indebtedness of the Company shall first be entitled to receive payment in full of the principal thereof, the interest thereon and any other amounts due thereon before the Holders are entitled to receive payment on account of the principal of, and premium, if any, and interest, if any, on, or any other amounts due on the Securities;

 

(2)                                  any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Sixteen with respect to the Securities, to the payment in full without diminution or modification by such plan of all Senior Indebtedness of the Company, to which the Holders or the Trustee would be entitled except for the provisions of this Article, shall be paid by the liquidating trustee or agent or other Person making such a payment or distribution, directly to the holders of Senior Indebtedness of the Company (or their representatives) or trustee(s) acting on their behalf, ratably according to the aggregate amounts remaining unpaid on account of the principal of and premium, if any, and interest, if any, on, and other amounts due on the Senior Indebtedness of the Company held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness of the Company remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Company; and

 

(3)                                  in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article with respect to the Securities, to the payment in full without

 

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diminution or modification by such plan of Senior Indebtedness of the Company, shall be received by the Trustee or the Holders before all Senior Indebtedness of the Company is paid in full, such payment or distribution shall be held in trust for the benefit of, and be paid over to, the holders of the Senior Indebtedness of the Company remaining unpaid (or their representatives) or trustee(s) acting on their behalf, ratably as aforesaid, for application to the payment of such Senior Indebtedness of the Company until all such Senior Indebtedness of the Company shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Company.

 

Subject to the payment in full of all Senior Indebtedness of the Company, the Holders shall be subrogated to the rights of the holders of Senior Indebtedness of the Company to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness of the Company until the principal of and premium, if any, and interest, if any, on, and any other amounts payable with respect to the Securities shall be paid in full and, for purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of the Company of cash, property or securities which otherwise would have been payable or distributable to Holders shall, as between the Company, its creditors other than the holders of Senior Indebtedness of the Company, and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness of the Company, it being understood that the provisions of this Article Sixteen are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness of the Company, on the other hand.

 

Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of and premium, if any, and interest, if any on, and any Additional Amounts with respect to the Securities as and when the same shall become due and payable in accordance with the terms of the Securities or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than holders of Senior Indebtedness of the Company or, as between the Company and the Trustee, the obligations of the Company to the Trustee, nor shall anything herein or therein prevent the Trustee or the Holders from exercising all remedies otherwise permitted by law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness of the Company in respect of cash, property and securities of the Company received upon the exercise of any such remedy.  Upon distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Section 7.01 hereof, and the Holders shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.  The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Company.  Nothing contained in this Article Sixteen or elsewhere in this Indenture, or in any of the Securities, shall prevent the application by the Trustee of any moneys which were deposited with it hereunder, prior to its receipt of written notice of facts

 

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which would prohibit such application, for the purpose of the payment of or on account of the principal of and any premium, if any, and interest, if any, on, or any Additional Amounts with respect to the Securities unless, prior to the date on which such application is made by the Trustee, the Trustee shall be charged with notice under Section 16.03(c) hereof of the facts which would prohibit the making of such application.

 

(b)  The provisions of this Article shall not be applicable to any cash, properties or securities received by the Trustee or by any Holder when received as a holder of Senior Indebtedness of the Company and nothing in this Indenture shall deprive the Trustee or such Holder of any of its rights as such holder.

 

(c)  The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment of money to or by the Trustee in respect of the Securities pursuant to the provisions of this Article.  The Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled to assume that no such fact exists unless the Company or any holder of Senior Indebtedness of the Company or any trustee therefor has given such notice to the Trustee.  Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any fact which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions in this Article, unless, and until three Business Days after, the Trustee shall have received written notice thereof at the address designated pursuant to Section 17.03 hereof from the Company or any holder or holders of Senior Indebtedness of the Company or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled in all respects conclusively to assume that no such fact exists; provided that if on a date not less than three Business Days immediately preceding the date upon which by the terms hereof any such monies may become payable for any purpose including, without limitation, the principal of, and premium, if any, and interest, if any, on, and any Additional Amounts with respect to any Security, and any amounts immediately due and payable upon the execution of any instrument acknowledging satisfaction and discharge of this Indenture, as provided in Article Four hereof), the Trustee shall not have received with respect to such monies the notice provided for in this Section 16.03(c), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.

 

The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the Company (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness of the Company (or a trustee on behalf of any such holder or holders).  In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Company to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness of the Company held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and, if such evidence is not furnished, the Trustee may defer any payment to such Person

 

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pending judicial determination as to the right of such Person to receive such payment; nor shall the Trustee be charged with knowledge of the curing or waiving of any default of the character specified in Section 16.02 hereof or that any event or any condition preventing any payment in respect of the Securities shall have ceased to exist, unless and until the Trustee shall have received an Officer’s Certificate to such effect.

 

(d)  The provisions of this Section 16.03 applicable to the Trustee shall also apply to any paying agent for the Company.

 

Section 16.04.                        Reliance By Senior Indebtedness of the Company On Subordination Provisions .  Each Holder of any Security by his acceptance thereof acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration for each holder of any Senior Indebtedness of the Company, whether such Senior Indebtedness of the Company was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness of the Company, and such holder of Senior Indebtedness of the Company shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness of the Company.  Notice of any default in the payment of any Senior Indebtedness of the Company, except as expressly stated in this Article, and notice of acceptance of the provisions hereof are hereby expressly waived.  Except as otherwise expressly provided herein, no waiver, forbearance or release by any holder of Senior Indebtedness of the Company under such Senior Indebtedness of the Company or under this Article shall constitute a release of any of the obligations or liabilities of the Trustee or Holders of the Securities provided in this Article.  Except as otherwise expressly provided herein, no right of any present or future holder of Senior Indebtedness of the Company to enforce the subordination provisions hereof shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any such holder or by any noncompliance by the Company with the terms, provisions or covenants of this Indenture, regardless of any knowledge thereof which such holder may have otherwise been charged with.

 

Section 16.05.                        Trustee’s Relation To Senior Indebtedness of the Company .  The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article in respect of any Senior Indebtedness of the Company at any time held by it, to the same extent as any holder of Senior Indebtedness of the Company, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Company shall be read into this Indenture against the Trustee.  The Trustee shall not owe any fiduciary duty to the holders of Senior Indebtedness of the Company but shall have only such obligations to such holders as are expressly set forth in this Article.

 

Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding up or liquidation or

 

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reorganization under any applicable bankruptcy law of the Company (whether in administration, bankruptcy, insolvency or receivership proceedings or otherwise and other than in respect of a solvent reorganization or reconstruction), the timely filing of a claim for the unpaid balance of such Holder’s Securities in the form required in such proceedings and the causing of such claim to be approved.  If the Trustee does not file a claim or proof of debt in the form required in such proceedings prior to 10 days before the expiration of the time to file such claims or proofs, then the holders of Senior Indebtedness of the Company, jointly, or their representative shall have the right to demand, sue for, collect, receive and receipt for the payments and distributions in respect of the Securities which are required to be paid or delivered to the holders of Senior Indebtedness of the Company as provided in this Article and to file and prove all claims therefor and to take all such other action in the name of the Holders or otherwise, as such holder of Senior Indebtedness of the Company or representative thereof may determine to be necessary or appropriate for the enforcement of the provisions of this Article.

 

Section 16.06.                        Other Provisions Subject Hereto .  Except as expressly stated in this Article, notwithstanding anything contained in this Indenture to the contrary, all the provisions of this Indenture and the Securities are subject to the provisions of this Article.  However, nothing in this Article shall apply to or adversely affect the claims of, or payment to, the Trustee pursuant to Section 7.06.

 

ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS

 

Section 17.01.                        Benefits of Indenture.   Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities and, to the extent set forth in Article Sixteen, holders of Senior Indebtedness of the Company and, to the extent set forth in the Subordination Provisions, holders of Senior Indebtedness of the Guarantor, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors, holders of Senior Indebtedness of the Company and holders of Senior Indebtedness of the Guarantor, if applicable, and of the Holders of the Securities.

 

Section 17.02.                        Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.

 

Section 17.03.                        Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee), as follows:  if to the Company, Aon plc, 122 Leadenhall Street, London, England, Attention:  Treasurer; and if to the Guarantor, Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer.  Any notice, direction, request or demand by the Company or the Guarantor, or any Securityholder to

 

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or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.

 

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing.  If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its reasonable discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling, absent gross negligence or manifest error. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s prior reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of any such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Section 17.04.                        Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate or Officers’ Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.

 

Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he 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 (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters

 

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and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous.  Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.

 

Section 17.05.                        Legal Holidays .  Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.

 

Section 17.06.                        Trust Indenture Act to Control .  If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.

 

Section 17.07.                        Execution in Counterparts .  This 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.

 

Section 17.08.                        New York Contract .  This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State; provided however, that the provisions of Article Sixteen and any non-contractual obligations of the Company arising out of or in connection therewith, shall be governed by the laws of England and Wales (other than the appointment of any attorney-in-fact, which shall be governed by the laws of the State of New York).

 

Section 17.09.                        Consent to Service . The Company has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the

 

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Securities of any series brought in any federal or state court sitting in the Borough of Manhattan in The City of New York. By the execution and delivery of this Indenture, the Company irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Company, shall be deemed in every respect effective service of process upon the Company, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Company may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any of the Securities shall be Outstanding.

 

Section 17.10.                        Separability .  In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

Section 17.11.                        Assignment .  The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations.  Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns.  This Indenture may not otherwise be assigned by the parties hereto.

 

Section 17.12.                        Waiver of Jury Trial .  EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 17.13.                        Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.

 

Section 17.14.                        Judgment Currency . The Company and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:

 

78


 

(a)                                  if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, The City of New York, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, The City of New York preceding the day on which a final unappealable judgment is entered; and

 

(b)                                  their obligations under this Indenture to make payments in the Required Currency:

 

(1)                                  shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments;

 

(2)                                  shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and

 

(3)                                  shall not be affected by judgment being obtained for any other sum due under this Indenture.

 

Section 17.15.                        Tax Witholding. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 17.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company agrees (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Company’s possession (or, to the extent not in the Company’s possession, can be obtained through commercially reasonable efforts of the Company) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Company, and (ii) that the Trustee shall be entitled to make any withholding or deduction

 

79


 

from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability.  The terms of this Section shall survive the termination of this Indenture.

 

80


 

IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.

 

 

Aon plc

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

 

 

 

 

Aon Corporation

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

 

 

 

 

 

 

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

81


 

Annex A

 

NOTATION OF GUARANTEE

 

For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

 

 

Aon Corporation

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 



Exhibit 4.4

 

 

AON CORPORATION,

Company

 

AON, PLC

Guarantor

 

and

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

Trustee

 

INDENTURE

 

Dated as of                                    

 

Debt Securities

 

 

 


 

CROSS-REFERENCE SHEET*

 

BETWEEN

 

Provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939 and the within Indenture among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., Trustee:

 

310

 

(a) (1) and (2)

 

7.09

310

 

(a) (3) and (4)

 

Not applicable

310

 

(b)

 

7.08 and 7.10 (b)

310

 

(c)

 

Not applicable

311

 

(a) and (b)

 

7.13

311

 

(c)

 

Not applicable

312

 

(a)

 

5.01 and 5.02 (a)

312

 

(b) and (c)

 

5.02 (b) and (c)

313

 

(a), (b)(2) and (c)

 

5.04 (a)

313

 

(b) (1)

 

Not applicable

313

 

(d)

 

5.04 (b)

314

 

(a)

 

5.03

314

 

(b)

 

Not applicable

314

 

(c) (1) and (2)

 

16.04

314

 

(c) (3)

 

Not applicable

314

 

(d)

 

Not applicable

314

 

(e)

 

16.04

314

 

(f)

 

Not applicable

315

 

(a), (c) and (d)

 

7.01

315

 

(b)

 

6.07

315

 

(e)

 

6.08

316

 

(a) (1)

 

6.01 and 6.06

316

 

(a) (2)

 

Omitted

316

 

(a) last sentence

 

8.04

316

 

(b)

 

6.04

317

 

(a)

 

6.02

317

 

(b)

 

4.03 (a)

318

 

(a)

 

16.06

 

* This Cross-Reference Sheet is not part of the Indenture.

 

i


 

TABLE OF CONTENTS

 

ARTICLE ONE

DEFINITIONS

 

Section 1.01.

 

Definitions

 

1

 

 

 

 

 

ARTICLE TWO

ISSUE, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES

 

Section 2.01.

 

Amount Unlimited; Issuable in Series

 

8

Section 2.02.

 

Form of Trustee’s Certificate of Authentication

 

11

Section 2.03.

 

Form, Execution, Authentication, Delivery and Dating of Securities

 

11

Section 2.04.

 

Currency; Denominations; Regular Record Date

 

13

Section 2.05.

 

Exchange and Registration of Transfer of Securities

 

14

Section 2.06.

 

Temporary Securities

 

15

Section 2.07.

 

Mutilated, Destroyed, Lost or Stolen Securities

 

16

Section 2.08.

 

Securities in Global Form

 

17

Section 2.09.

 

Cancellation

 

17

Section 2.10.

 

Computation of Interest

 

17

Section 2.11.

 

CUSIP Numbers

 

17

 

ARTICLE THREE

REDEMPTION OF SECURITIES

 

Section 3.01.

 

Redemption of Securities; Applicability of Article

 

17

Section 3.02.

 

Tax Redemption

 

17

Section 3.03.

 

Notice of Redemption; Selection of Securities

 

19

Section 3.04.

 

Payment of Securities Called for Redemption

 

20

 

 

 

 

 

ARTICLE FOUR

PARTICULAR COVENANTS OF THE COMPANY

 

 

 

 

 

Section 4.01.

 

Payment of Principal, Premium and Interest

 

21

Section 4.02.

 

Offices for Notices and Payments, etc.

 

21

Section 4.03.

 

Provisions as to Paying Agent

 

22

Section 4.04.

 

Statement by Officers as to Default

 

23

Section 4.05.

 

Payment of Additional Amounts

 

23

 

 

 

 

 

ARTICLE FIVE

SECURITYHOLDER LISTS AND REPORTS BY THE

COMPANY AND THE TRUSTEE

 

 

 

 

 

Section 5.01.

 

Securityholder Lists

 

26

Section 5.02.

 

Preservation and Disclosure of Lists

 

26

Section 5.03.

 

Reports by the Company

 

28

Section 5.04.

 

Reports by the Trustee

 

28

 

ii


 

ARTICLE SIX

REMEDIES ON DEFAULT

 

 

 

 

 

Section 6.01.

 

Events of Default

 

29

Section 6.02.

 

Payment of Securities on Default; Suit Therefor

 

31

Section 6.03.

 

Application of Moneys Collected by Trustee

 

33

Section 6.04.

 

Proceedings by Securityholders

 

34

Section 6.05.

 

Remedies Cumulative and Continuing

 

35

Section 6.06.

 

Direction of Proceedings

 

35

Section 6.07.

 

Notice of Defaults

 

35

Section 6.08.

 

Undertaking to Pay Costs

 

35

Section 6.09.

 

Waiver of Past Defaults

 

36

 

 

 

 

 

ARTICLE SEVEN

CONCERNING THE TRUSTEE

 

 

 

 

 

Section 7.01.

 

Duties and Responsibilities of Trustee

 

36

Section 7.02.

 

Reliance on Documents, Opinions, etc.

 

37

Section 7.03.

 

No Responsibility for Recitals, etc.

 

39

Section 7.04.

 

Ownership of Securities

 

39

Section 7.05.

 

Moneys to Be Held in Trust

 

39

Section 7.06.

 

Compensation, Indemnification and Expenses of Trustee

 

39

Section 7.07.

 

Officers’ Certificate as Evidence

 

40

Section 7.08.

 

Conflicting Interest of Trustee

 

40

Section 7.09.

 

Eligibility of Trustee

 

41

Section 7.10.

 

Resignation or Removal of Trustee

 

41

Section 7.11.

 

Acceptance by Successor Trustee

 

42

Section 7.12.

 

Successor by Merger, etc.

 

43

Section 7.13.

 

Limitations on Rights of Trustee as Creditor

 

43

 

 

 

 

 

ARTICLE EIGHT

CONCERNING THE SECURITYHOLDERS

 

 

 

 

 

Section 8.01.

 

Action by Securityholders

 

44

Section 8.02.

 

Proof of Ownership

 

44

Section 8.03.

 

Who Are Deemed Absolute Owners

 

44

Section 8.04.

 

Company-Owned Securities Disregarded

 

45

Section 8.05.

 

Revocation of Consents; Future Securityholders Bound

 

45

 

 

 

 

 

ARTICLE NINE

SECURITYHOLDERS’ MEETINGS

 

 

 

 

 

Section 9.01.

 

Purposes of Meetings

 

45

Section 9.02.

 

Call of Meetings by Trustee

 

46

Section 9.03.

 

Call of Meetings by Company or Securityholders

 

46

Section 9.04.

 

Qualification for Voting

 

46

Section 9.05.

 

Regulations

 

47

 

iii


 

Section 9.06.

 

Voting

 

47

 

 

 

 

 

ARTICLE TEN

SUPPLEMENTAL INDENTURES

 

 

 

 

 

Section 10.01.

 

Supplemental Indentures without Consent of Securityholders

 

48

Section 10.02.

 

Supplemental Indentures with Consent of Securityholders

 

49

Section 10.03.

 

Compliance with Trust Indenture Act; Effect of Supplemental Indentures

 

50

Section 10.04.

 

Notation on Securities

 

51

 

 

 

 

 

ARTICLE ELEVEN

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

 

 

 

 

Section 11.01.

 

Company and Guarantor May Consolidate, etc., Only on Certain Terms

 

51

Section 11.02.

 

Successor Person Substituted

 

52

 

 

 

 

 

ARTICLE TWELVE

SATISFACTION AND DISCHARGE OF INDENTURE;

UNCLAIMED MONEYS

 

 

 

 

 

Section 12.01.

 

Discharge of Indenture

 

52

Section 12.02.

 

Deposited Moneys to Be Held in Trust by Trustee

 

54

Section 12.03.

 

Paying Agent to Repay Moneys Held

 

54

Section 12.04.

 

Return of Unclaimed Moneys

 

54

 

 

 

 

 

ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE

 

 

 

 

 

Section 13.01.

 

Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance

 

55

Section 13.02.

 

Defeasance and Discharge

 

55

Section 13.03.

 

Covenant Defeasance

 

55

Section 13.04.

 

Conditions to Defeasance or Covenant Defeasance

 

56

Section 13.05.

 

Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions

 

58

 

 

 

 

 

ARTICLE FOURTEEN

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS

 

 

 

 

 

Section 14.01.

 

Indenture and Securities Solely Corporate Obligations

 

59

 

 

 

 

 

ARTICLE FIFTEEN

GUARANTEE

 

 

 

 

 

Section 15.01.

 

Guarantee

 

59

Section 15.02.

 

Subrogation

 

60

 

iv


 

Section 15.03.

 

Notation of Guarantee

 

61

 

 

 

 

 

ARTICLE SIXTEEN

MISCELLANEOUS PROVISIONS

 

 

 

 

 

Section 16.01.

 

Benefits of Indenture Restricted to Parties and Securityholders

 

61

Section 16.02.

 

Provisions Binding on Successors

 

61

Section 16.03.

 

Addresses for Notices, etc.

 

61

Section 16.04.

 

Evidence of Compliance with Conditions Precedent

 

62

Section 16.05.

 

Legal Holidays

 

63

Section 16.06.

 

Trust Indenture Act to Control

 

63

Section 16.07.

 

Execution in Counterparts

 

63

Section 16.08.

 

New York Contract

 

63

Section 16.09.

 

Consent to Service

 

63

Section 16.10.

 

Separability

 

64

Section 16.11.

 

Assignment

 

64

Section 16.12.

 

Waiver of Jury Trial

 

64

Section 16.13.

 

Force Majeure

 

64

Section 16.14.

 

Judgment Currency

 

64

Section 16.15.

 

Tax Witholding

 

65

 

v


 

THIS INDENTURE, dated as of the      day of             , is among Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon plc, a corporation duly organized and existing under the laws of England and Wales (hereinafter sometimes called the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).

 

WITNESSETH:

 

WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided; and

 

WHEREAS, each of the Company and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Company and the Guarantor has in all respects been duly authorized, and each of the Company and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;

 

NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:

 

ARTICLE ONE
DEFINITIONS

 

Section 1.01.                               Definitions .  The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section.  All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended and the Securities Act of 1933, as amended, shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act of 1939 and in the Securities Act of 1933, as amended, in each case, as in force at the date of this Indenture as originally executed.

 

Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:

 

1


 

(1)                                  the terms defined in this Article include the plural as well as the singular;

 

(2)                                  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(3)                                  the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(4)                                  references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture;

 

(5)                                  the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”);

 

(6)                                  provisions apply to successive events and transactions;

 

(7)                                  the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings;

 

(8)                                  the masculine gender includes the feminine and the neuter; and

 

(9)                                  references to agreements and other instruments include subsequent amendments and supplements thereto.

 

ADDITIONAL AMOUNTS

 

The term “Additional Amounts” shall have the meaning specified in Section 4.05.

 

BOARD OF DIRECTORS

 

The term “Board of Directors” shall mean the Board of Directors of the Company, the Executive Committee of the Company or any other committee duly authorized to exercise the powers and authority of the Board of Directors with respect to this Indenture or any Security.

 

BOARD OF DIRECTORS OF THE GUARANTOR

 

The term “Board of Directors of the Guarantor” shall mean the Board of Directors of the Guarantor, the Executive Committee of the Guarantor or any other committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.

 

BOARD RESOLUTION

 

The term “Board Resolution” shall mean a resolution certified by the Company Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

2


 

BOARD RESOLUTION OF THE GUARANTOR

 

The term “Board Resolution of the Guarantor” shall mean a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

BUSINESS DAY

 

The term “Business Day” shall mean, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.

 

COMMISSION

 

The term “Commission” shall mean 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 Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

COMPANY

 

The term “Company” shall mean the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

COMPANY ORDER

 

The term “Company Order” means a written order signed in the name of the Company by the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

CORPORATE TRUST OFFICE

 

The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602 Attention:  Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

COVENANT DEFEASANCE

 

The term “covenant defeasance” shall have the meaning specified in Section 13.03.

 

3

 

DEFEASANCE

 

The term “defeasance” shall have the meaning specified in Section 13.02.

 

DEPOSITARY

 

The term “Depositary” shall mean, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.

 

DOLLARS

 

The term “dollars” or “$” shall mean a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.

 

EVENT OF DEFAULT

 

The term “Event of Default” shall mean any event specified as such in or as contemplated by Section 6.01.

 

EXCHANGE ACT

 

The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

GAAP

 

The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.

 

GLOBAL SECURITY

 

The term “Global Security” means a Security in registered global form without interest coupons.

 

GOVERNMENT OBLIGATION

 

The term “Government Obligation” shall have the meaning specified in Section 13.04.

 

GUARANTEE

 

The term “Guarantee” shall have the meaning specified in Article Fifteen.

 

4


 

GUARANTOR

 

The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.

 

HOLDER

 

The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, shall mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

HOME COUNTRY JURISDICTION

 

The term “Home Country Jurisdiction” means the jurisdiction of organization of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.

 

INDENTURE

 

The term “Indenture” shall mean this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.

 

INTEREST

 

The term “Interest” shall mean, when used with respect to non-interest bearing Securities, interest payable on or after maturity.

 

INTEREST PAYMENT DATE

 

The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.

 

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OFFICERS’ CERTIFICATE

 

The term “Officers’ Certificate” shall mean a certificate signed by the Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

OFFICERS’ CERTIFICATE OF THE GUARANTOR

 

The term “Officers’ Certificate of the Guarantor” shall mean a certificate signed by the Chairman of the Board of Directors of the Guarantor or the President or any Executive Vice President or any Vice President or the Treasurer and by the Corporate Secretary or any Assistant Secretary of the Guarantor.

 

OPINION OF COUNSEL

 

The term “Opinion of Counsel” shall mean an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor or who may be other counsel.

 

ORIGINAL ISSUE DISCOUNT SECURITIES

 

The term “Original Issue Discount Securities” shall mean a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.

 

OUTSTANDING

 

The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except

 

(a)                                  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(b)                                  Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice;

 

(c)                                   Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Company;

 

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(d)                                  Securities which have been defeased pursuant to Section 13.02; and

 

(e)                                   Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange.

 

PERIODIC OFFERING

 

The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.

 

PERSON

 

The term “Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

PLACE OF PAYMENT

 

The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Company in the Borough of Manhattan, The City of New York, designated and maintained by the Company pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.

 

REGULAR RECORD DATE

 

The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.

 

RESPONSIBLE OFFICER

 

The term “Responsible Officer”, when used with respect to the Trustee, shall mean any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

SECURITY REGISTER AND SECURITY REGISTRAR

 

The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.

 

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SHARES

 

The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of the Guarantor authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Guarantor which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.

 

TAXES

 

The term “Taxes” shall have the meaning specified in Section 4.05.

 

TRUST INDENTURE ACT

 

Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

UNITED STATES

 

The term “United States” shall mean the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.

 

ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES

 

Section 2.01.                               Amount Unlimited; Issuable in Series .  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series.  There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

 

(1)                                  the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(2)                                  any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms);

 

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(3)                                  whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security;

 

(4)                                  the date or dates on which the principal of the Securities of the series is payable;

 

(5)                                  the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date;

 

(6)                                  whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture;

 

(7)                                  the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable;

 

(8)                                  the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, repurchased or repaid, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;

 

(9)                                  the obligation, if any, of the Company to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Company to select the Securities to be redeemed, repurchased or repaid;

 

(10)                           if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities

 

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denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than dollars;

 

(11)                           the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;

 

(12)                           if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02;

 

(13)                           if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series);

 

(14)                           any deletions from, modifications of or additions to the Events of Default or covenants of the Company and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein);

 

(15)                           whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and

 

(16)                           any other terms of the Securities of the series.

 

All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officers’ Certificate or in any such indenture supplemental hereto.

 

If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.

 

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With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officers’ Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.

 

Section 2.02.                               Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:

 

[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

Dated:

 

 

By:

 

 

Authorized Officer

 

Section 2.03.                               Form, Execution, Authentication, Delivery and Dating of Securities .  The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officers’ Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities.  Such Securities may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.

 

Each Security shall be executed on behalf of the Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary.  Such signatures may be the manual or facsimile signatures of the present or any future such officers.

 

With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be manual or facsimile.

 

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Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee.  At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series.  If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate pursuant to Section 16.04 and an Opinion of Counsel stating:

 

(a)                                  if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;

 

(b)                                  if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and

 

(c)                                   that each such Security, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.

 

If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

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Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 2.01 if such Officers’ Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.

 

Every Security shall be dated the date of its authentication.

 

No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.

 

Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

Section 2.04.                               Currency; Denominations; Regular Record Date .  Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.

 

The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01.  In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.

 

The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, The City of New York are authorized by law or required

 

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by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.

 

The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Section 2.05.                               Exchange and Registration of Transfer of Securities .  Securities of any series may be exchanged for a like aggregate principal amount of Securities of other authorized denominations of such series.  Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.

 

The Company (or its designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided.  The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time.  At all reasonable times the Security Register shall be open for inspection by the Trustee.  Upon due presentment for registration of transfer of any Security of a particular series at such office or agency, the Company shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Company or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.

 

All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of

 

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transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.

 

All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased, or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.

 

Section 2.06.                               Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced).  Temporary Securities of any series shall be issuable in any authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution.  Every temporary Security shall be executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Company shall execute and shall furnish definitive Securities of such series evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations.  Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be

 

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delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

 

Section 2.07.                               Mutilated, Destroyed, Lost or Stolen Securities .  In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof.  The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company.  Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution.  In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to the satisfaction of the Company of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

 

All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

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Section 2.08.                               Securities in Global Form .  If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.

 

Section 2.09.                               Cancellation .  All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture.  The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Company or, if requested to do so by the Company, shall return such cancelled Securities to the Company.

 

Section 2.10.                               Computation of Interest .  Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 2.11.                               CUSIP Numbers .  The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities,  and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

ARTICLE THREE
REDEMPTION OF SECURITIES

 

Section 3.01.                               Redemption of Securities; Applicability of Article .  Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.

 

Section 3.02.                               Tax Redemption The Company shall have the option to redeem  the Securities of any series, in whole but not in part, at any time prior to the maturity date of the

 

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principal of the Securities of any series, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption, if, with respect to such series:

 

(a)                                  the Company determines that, as a result of:

 

(1)                                  any change in, amendment to, or announced proposed change in the laws or any regulations or rulings promulgated thereunder of a Home Country Jurisdiction (or of any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the jurisdiction in which such successor Person is organized (or deemed resident for tax purposes); or

 

(2)                                  any change in the application or official interpretation of such laws,  regulations or rulings, or (in either case) any change in the application or official interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which any such jurisdiction is a party, which change, execution or amendment becomes effective on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), with respect to taxes imposed by such other jurisdiction in accordance with Section 11.01, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series or, if applicable, in the Guarantee relating to such Securities of such series,

 

the Company, the Guarantor or such successor Person, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company, the Guarantor, as applicable, or such successor Person; or

 

(b)                                  the Company determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Home Country Jurisdiction (or any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the

 

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jurisdiction in which such successor Person is organized (or deemed resident for tax purposes), which action is taken or brought on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, with respect to taxes imposed by such other jurisdiction, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series, that there is a substantial probability that the circumstances described in subsection (a) above would exist.

 

(c)                                   Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.

 

(d)                                  The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person will also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price.

 

(e)                                   Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company will deliver to the Trustee an Officer’s Certificate stating that the Company is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and, if the redemption is pursuant to clause (b) above, the opinion of independent counsel referred to in such clause (b), which shall be in a form satisfactory to the Trustee. Delivery of any notice of redemption pursuant to this Section 3.02 will be conclusive and binding on the Holders of the Securities being redeemed. Once the Company delivers such an Officer’s Certificate to the Trustee, any notice of redemption that has been given shall be irrevocable.

 

Section 3.03.                               Notice of Redemption; Selection of Securities .  In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, it shall fix a date for redemption, it shall prepare the notice of such redemption and it shall mail or, at the Company’s request and expense, the Trustee shall mail such notice of redemption at least thirty (30) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register.  Such mailing shall be by prepaid first class mail or in the case of global securities, delivered electronically to the Depository.  Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice.  In any case, failure

 

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to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.

 

Each notice of redemption shall specify the date fixed for redemption, the redemption price at which the applicable Securities are to be redeemed, the Place of Payment, that payment will be made upon presentation and surrender of such Securities and that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange,

 

Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption.  The Company will give the Trustee notice of each redemption at least forty-five (45) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.

 

If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair and, if applicable, in accordance with the procedures of the Depositary, the Securities of such series to be redeemed; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.

 

Section 3.04.                               Payment of Securities Called for Redemption .  If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of Payment stated in such notice at the applicable redemption price and on and after said date (unless the Company and, if the provisions of Article Fifteen apply to the Securities to be

 

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redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue.  On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Company at the applicable redemption price.  Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Company shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04.  At the option of the Company, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.

 

Upon presentation of any Security redeemed in part only (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.

 

ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY

 

Section 4.01.                               Payment of Principal, Premium and Interest .  The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture.  The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Company may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.

 

Section 4.02.                               Offices for Notices and Payments, etc .  As long as any of the Securities of a series remain outstanding, the Company will designate and maintain, in the City of Chicago and the Borough of Manhattan, The City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Company in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment.  The Company will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof.  In case the Company shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee in the City of Chicago and

 

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the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes.  The Company will 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 each of                      , located at                             and                            as a Security Registrar and as the office or agency of the Company in the City of Chicago and the Borough of Manhattan, the City of New York, respectively, where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities of any series or of this Indenture may be served.

 

Section 4.03.                               Provisions as to Paying Agent .

 

(a)                                  Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,

 

(1)                                  that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,

 

(2)                                  that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held,

 

(3)                                  that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and

 

(4)                                  at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent.

 

(b)                                  If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due.  The Company will promptly notify the Trustee of any failure to take such action.

 

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(c)                                   Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

(d)                                  Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.

 

(e)                                   Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03.

 

(f)                                    To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis , to such Shares or other securities or property.

 

Section 4.04.                               Statement by Officers as to Default .

 

(a)                                  The Company will 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, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by it and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge.

 

(b)                                  The Company will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default.

 

Section 4.05.                               Payment of Additional Amounts .

 

(a)                                  All payments of principal of and premium, if any, and interest, if any, on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee shall be free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed or levied by or on behalf of the government of a Home Country Jurisdiction, any territory of a Home Country Jurisdiction or any authority or agency therein or thereof having the power to tax (collectively,

 

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“Taxes”), except to the extent such Taxes are required to be withheld or deducted by law or by the interpretation or administration thereof.

 

If the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each beneficial owner (including such Additional Amounts), after such withholding or deduction, shall not be less than the amount such beneficial owner would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:

 

(1)                                  that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Home Country Jurisdiction or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;

 

(2)                                  that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;

 

(3)                                  payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;

 

(4)                                  that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:

 

(i)                                      such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and

 

(ii)                                   at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;

 

(5)                                  that would not have been imposed but for the presentation of a Security or, as applicable, the Guarantee (where presentation is required) for payment on a date more

 

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than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;

 

(6)                                  that are imposed on a payment and are required to be made pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive, or any law implementing or complying with, or introduced in order to conform to, such directive or directives;

 

(7)                                  that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;

 

(8)                                  that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, had been made to a paying agent other than the paying agent to which the presentation was made; or

 

(9)                                  any combination of the foregoing clauses (1) through (8);

 

nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security.

 

(b)                                  All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.

 

(c)                                   The Company shall maintain, in respect of Securities of each series outstanding, at least one paying agent located outside the United Kingdom. In the event that a paying agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a paying agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive or any law implementing or complying with, or introduced in order to conform to such directive or directives, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such directive.

 

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(d)                                  The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.

 

(e)                                   If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), such successor Person will pay Additional Amounts on the same basis set forth in this Section 4.05, except that references to “Home Country Jurisdiction” will be treated as references to both the Home Country Jurisdictions at the issue date of the Securities of such series and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).

 

ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE

 

Section 5.01.                               Securityholder Lists .  The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:

 

(a)                                  semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company; and

 

(b)                                  at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished;

 

provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.

 

Section 5.02.                               Preservation and Disclosure of Lists .

 

(a)  The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the

 

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Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.

 

(b)                                  In case three or more Holders of Securities of a series (hereinafter referred to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants’ desire to communicate with other Holders of Securities of such series or with Holders of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five (5) Business Days after the receipt of such application, at its election, either

 

(1)                                  afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or

 

(2)                                  inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five (5) days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law.  Such written statement shall specify the basis of such opinion.  If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holder with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c)                                   Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent of the Company or of the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with

 

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the provisions of subsection (b) of this Section, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).

 

Section 5.03.                               Reports by the Company .  The Company covenants:

 

(a)                                  to file with the Trustee within thirty (30) days after the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)                                  to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and

 

(c)                                   to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

Section 5.04.                               Reports by the Trustee .

 

(a)                                  The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a).

 

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(b)                                  A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Company.  The Company agrees to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange.

 

ARTICLE SIX
REMEDIES ON DEFAULT

 

Section 6.01.                               Events of Default .  In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:

 

(a)                                  default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or

 

(b)                                  default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days; or

 

(c)                                   with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or

 

(d)                                  failure on the part of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, the Guarantor in this Indenture applicable to Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Company or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company or if applicable, the Guarantor by the Trustee, or to the Company and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or

 

(e)                                   a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of

 

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Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of the Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or

 

(f)                                    except for any case, proceeding, meeting, resolution or order in connection with a winding-up of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of the Company or the Guarantor, as applicable, either the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of the property of the Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors;

 

(g)                                   default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 or upon the exchange of any Security of such series which is exchangeable for other securities or property, and continuance of such default for a period of 10 Business Days; or

 

(h)                                  any other Event of Default provided with respect to Securities of such series;

 

then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.

 

The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that

 

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the terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.

 

Section 6.02.                               Payment of Securities on Default; Suit Therefor .  The Company covenants that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase,

 

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repayment or acceleration of such series, as the case may be); 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 willful misconduct.

 

In case the Company shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.

 

In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, the Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to the Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and liabilities

 

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incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct.

 

Nothing herein contained shall be deemed to authorize 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 Securities 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.

 

All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 6.03.                               Application of Moneys Collected by Trustee .  Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

FIRST:  To the payment of reasonable costs and expenses applicable to such Securities of 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 willful misconduct;

 

SECOND:  In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;

 

THIRD:  In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest,

 

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if any, and (to the extent that such interest has been collected by the Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and

 

FOURTH:  Any remainder to the Company or as a court of competent jurisdiction may direct.

 

Section 6.04.                               Proceedings by Securityholders .  No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing himself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.  For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.  With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.

 

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Section 6.05.                               Remedies Cumulative and Continuing .  All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.

 

Section 6.06.                               Direction of Proceedings .  The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to 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, with respect to the Securities of such series; provided, however, that (subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) 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 action or proceedings so directed would involve the Trustee in personal liability.

 

Section 6.07.                               Notice of Defaults .  The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, 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 or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.

 

Section 6.08.                               Undertaking to Pay Costs .  All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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

 

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Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.

 

Section 6.09.                               Waiver of Past Defaults .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

 

(1)                                  in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series;

 

(2)                                  in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or

 

(3)                                  in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series 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 and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

ARTICLE SEVEN
CONCERNING THE TRUSTEE

 

Section 7.01.                               Duties and Responsibilities of Trustee .  The Trustee, except during the continuance of an Event of Default of a particular series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

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(a)                                  prior to the occurrence of an Event of Default with respect to a particular series and after the curing or waiving of all Events of Default with respect to such series which may have occurred:

 

(1)                                  the duties and obligations of the Trustees with respect to such series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)                                  in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);

 

(b)                                  the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(c)                                   the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

Whether or not therein 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 Section.

 

No provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

Section 7.02.                               Reliance on Documents, Opinions, etc .  Subject to the provisions of Section 7.01:

 

(a)                                  the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

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(b)                                  any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by the Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; any request, direction, order or demand of the Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Guarantor by the Chairman of the Board of Directors of the Guarantor or any Vice Chairman of the Board of Directors of the Guarantor or its President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution of the Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Guarantor;

 

(c)                                   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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel;

 

(d)                                  the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby;

 

(e)                                   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, coupon 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 or the Guarantor personally or by agent or attorney;

 

(f)                                    the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder;

 

(g)                                   the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

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(h)                                  in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(i)                                      the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written knowledge thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(j)                                     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

 

(k)                                  the Trustee may request that the Company or the Guarantor deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

Section 7.03.                               No Responsibility for Recitals, etc .  The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture.  The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

Section 7.04.                               Ownership of Securities .  The Trustee or any agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company, the Guarantor or the Trustee.

 

Section 7.05.                               Moneys to Be Held in Trust .  Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.  Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.  So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Company, signed by its Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President or its Treasurer or any Assistant Treasurer.

 

Section 7.06.                               Compensation, Indemnification and Expenses of Trustee .  The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation and, except as otherwise expressly provided, the Company

 

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will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct.  The Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises.  The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder.  Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.

 

Section 7.07.                               Officers’ Certificate as Evidence .  Subject to the provisions of Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate or an Officers’ Certificate of the Guarantor, as applicable, delivered to the Trustee, and such Certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 7.08.                               Conflicting Interest of Trustee .

 

(a)                                  If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act.

 

(b)                                  In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by

 

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the conflicting interest as the names and addresses of such Holders appear on the Security Register.

 

Section 7.09.                               Eligibility of Trustee .  There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by Federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars.  If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case 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 Section 7.10.

 

Section 7.10.                               Resignation or Removal of Trustee .

 

(a)  The Trustee, or any trustee or trustees hereafter appointed, may, upon sixty (60) days’ written notice to the Company, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company, and by mailing notice of such resignation to the Holders of then outstanding Securities of each series affected at their addresses as they shall appear on the Security Register.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the mailing of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(b)                                  In case at any time any of the following shall occur:

 

(1)                                  the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or

 

(2)                                  the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or

 

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(3)                                  the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(c)                                   The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Company and appoint a successor trustee with respect to the Securities of such series with the consent of the Company.

 

(d)                                  Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.

 

(e)                                   Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.

 

Section 7.11.                               Acceptance by Successor Trustee .  Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act.  Upon request of any such successor trustee, the Company and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.

 

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In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.

 

No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.

 

Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register.  If the Company fails to mail such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Company.

 

Section 7.12.                               Successor by Merger, etc .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 7.13.                               Limitations on Rights of Trustee as Creditor .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS

 

Section 8.01.                               Action by Securityholders .  Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series 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 Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.

 

In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken 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 principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.

 

Section 8.02.                               Proof of Ownership .  Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.

 

Section 8.03.                               Who Are Deemed Absolute Owners .  The Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.

 

If the Company or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Company or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders

 

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for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.

 

Section 8.04.                               Company-Owned Securities Disregarded .  In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Company or by any person directly or indirectly controlling or controlled by or under direct or indirect control with the Company, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the Trustee knows are so owned shall be disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.

 

Section 8.05.                               Revocation of Consents; Future Securityholders Bound .  At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security.  Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security.  Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.

 

ARTICLE NINE
SECURITYHOLDERS’ MEETINGS

 

Section 9.01.                               Purposes of Meetings .  A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:

 

(1)                                  to give any notice to the Company, the Guarantor (if applicable) or the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its

 

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consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six;

 

(2)                                  to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven;

 

(3)                                  to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or

 

(4)                                  to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law.

 

Section 9.02.                               Call of Meetings by Trustee .  The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, 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 of Securities of any or all series, 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 to all Holders of then Outstanding Securities of such series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (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 Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series 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 9.03.                               Call of Meetings by Company or Securityholders .  In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Company or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing or publishing notice thereof as provided in Section 9.02.

 

Section 9.04.                               Qualification for Voting .  To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder.  The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders 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.

 

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Section 9.05.                               Regulations .  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities 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 it 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 Securityholders as provided in Section 9.03, in which case the Company or the Securityholders 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 Securities represented at the meeting and entitled to vote.

 

Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security 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 Securityholder or proxy.  Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.

 

Section 9.06.                               Voting .  The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders 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 Securities 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 Securityholders 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 9.02.  The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

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ARTICLE TEN
SUPPLEMENTAL INDENTURES

 

Section 10.01.                        Supplemental Indentures without Consent of Securityholders .  The Company, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes:

 

(a)                                  to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Article Eleven hereof;

 

(b)                                  to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Company or the Guarantor;

 

(c)                                   to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series;

 

(d)                                  to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect;

 

(e)                                   to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities;

 

(f)                                    to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; and

 

(g)                                   to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03.

 

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The Trustee is hereby authorized to join with the Company and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.

 

Section 10.02.                        Supplemental Indentures with Consent of Securityholders .  With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Company, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:

 

(a)                                  extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security;

 

(b)                                  impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor);

 

(c)                                   reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults;

 

(d)                                  make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or

 

(e)                                   modify any of the provisions of this Section or Section 6.09, 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 Security affected thereby; provided however, that this clause shall not be deemed to

 

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require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e).

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Upon the request of the Company and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Promptly after the execution and delivery by the Company, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register.  Any failure of the Company or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.

 

Section 10.03.                        Compliance with Trust Indenture Act; Effect of Supplemental Indentures .  Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act of 1939, as amended and then in effect.  Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officers’ Certificate, and an Officers’ Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as

 

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conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.

 

Section 10.04.                        Notation on Securities .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  New Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.

 

ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 11.01.                        Company and Guarantor May Consolidate, etc., Only on Certain Terms .  So long as any Securities shall be Outstanding, neither the Company nor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:

 

(a)                                  (1) The Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which the Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety:

 

(i)                                      expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and

 

(ii)                                   in the case of the Company, is a corporation or other entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia.

 

(c)                                   immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or the Guarantor, as

 

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applicable, as a result of such transaction as having been incurred by the Company or the Guarantor, as applicable, 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; and

 

(d)                                  the Company has delivered to the Trustee an Officers’ Certificate or the Guarantor has delivered to the Trustee an Officers’ Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 11.02.                        Successor Person Substituted .  So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company or the Guarantor, as applicable, is merged or converted 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 or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS

 

Section 12.01.                        Discharge of Indenture .  This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when

 

(a)                                  either:

 

(i)                                      all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or

 

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(ii)                                   all such Securities of such series not theretofore delivered to the Trustee for cancellation:

 

(A)                                have become due and payable; or

 

(B)                                will become due and payable at their stated maturity within one year; or

 

(C)                                are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;

 

and the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any) with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;

 

(b)                                  the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and

 

(c)                                   the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:

 

(1)   All obligations under Section 7.06;

 

(2)  If money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02 and 12.04;

 

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(3)  Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Company or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and

 

(4)  Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares, securities or other property.

 

After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Company’s and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.

 

Section 12.02.                        Deposited Moneys to Be Held in Trust by Trustee .  Subject to Section 12.04, all moneys deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.

 

Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of the Company or the Guarantor, as the case may be, any money held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money was deposited.

 

Section 12.03.                        Paying Agent to Repay Moneys Held .  In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.

 

Section 12.04.                        Return of Unclaimed Moneys .  Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Company or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless

 

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an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.

 

ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE

 

Section 13.01.                        Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance .  Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.

 

Section 13.02.                        Defeasance and Discharge .  Upon the Company’s exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance” ).  Defeasance shall mean that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided , however , that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen.  Subject to compliance with this Article Thirteen, the Company may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.

 

Section 13.03.                        Covenant Defeasance .  Upon the Company’s exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to

 

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which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance” ).  Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.

 

Section 13.04.                        Conditions to Defeasance or Covenant Defeasance .  The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:

 

(a)                                  The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Governmental Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, 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, and which shall be applied by the Trustee (or other qualifying trustee)  to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities.  For this purpose, “Government Obligations” means securities that are (I) direct obligations of the government which issued the currency in which the Securities of such series are denominated 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 such government the payment of which is unconditionally guaranteed

 

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as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such 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 such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.

 

(b)                                  No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(c)                                   Such defeasance or covenant defeasance shall 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.

 

(d)                                  Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted.

 

(e)                                   In the case of an election with respect to Section 13.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable Federal income tax law (including, but not limited to, a change in the Code, proposed, temporary or final Treasury regulations, Revenue Rulings, Revenue Procedures, Internal Revenue Service Notices, Announcements, and other public announcements), in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

 

(f)                                    In the case of an election with respect to Section 13.03, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the

 

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effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

 

(g)                                   Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.

 

(h)                                  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with.

 

(i)                                      If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a), Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.

 

Section 13.05.                        Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.

 

Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be

 

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required to be deposited for the purpose for which such money or Government Obligations were deposited.

 

ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS

 

Section 14.01.                        Indenture and Securities Solely Corporate Obligations .  No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Company, the Guarantor or any successor Person to either of them, either directly or through the Company, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.

 

ARTICLE FIFTEEN
GUARANTEE

 

Section 15.01.                        Guarantee .  The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture or otherwise with respect to the Securities registered in such Holder’s name, and (b) the Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture to the Trustee (each, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.

 

The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification or consent granted to the Company with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor

 

59


 

waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.

 

The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Company, first make demand upon or seek to enforce remedies against the Company or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.

 

The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.

 

The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Company, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.

 

The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.

 

The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of the Company or otherwise.

 

The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Company or by any defense which the Company may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.  No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.

 

Section 15.02.                        Subrogation . The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee;

 

60

 

provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.

 

Section 15.03.                        Notation of Guarantee . To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.

 

The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.

 

The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.

 

ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS

 

Section 16.01.                        Benefits of Indenture Restricted to Parties and Securityholders.   Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.

 

Section 16.02.                        Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.

 

Section 16.03.                        Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee), as follows:  if to the Company, Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention:  Treasurer; and if to the Guarantor, Aon plc, 122 Leadenhall Street, London, England, Attention: Treasurer.  Any notice, direction, request or demand by the Company or the Guarantor, or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.

 

61


 

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing.  If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its reasonable discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling, absent gross negligence or manifest error. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s prior reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of any such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Section 16.04.                        Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate or Officers’ Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.

 

Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he 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 (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer

 

62


 

knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous.  Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.

 

Section 16.05.                        Legal Holidays .  Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.

 

Section 16.06.                        Trust Indenture Act to Control .  If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.

 

Section 16.07.                        Execution in Counterparts .  This 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.

 

Section 16.08.                        New York Contract .  This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State.

 

Section 16.09.                        Consent to Service . The Guarantor has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the Securities of any series to which the provisions of Article Fifteen shall apply brought in any federal or state court sitting in the Borough of Manhattan in The City of New York. By the execution and delivery of this Indenture, the Guarantor irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Guarantor, shall be deemed in every respect effective service of process upon the Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Guarantor further agrees to take any and all action, including the execution and filing of any and

 

63


 

all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any Securities to which the provisions of Article Fifteen shall apply shall be Outstanding.

 

Section 16.10.                        Separability .  In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

Section 16.11.                        Assignment .  The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations.  Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns.  This Indenture may not otherwise be assigned by the parties hereto.

 

Section 16.12.                        Waiver of Jury Trial .  EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 16.13.                        Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.

 

Section 16.14.                        Judgment Currency . The Company and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:

 

(a)                                  if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, The City of New York, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking

 

64


 

procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, The City of New York preceding the day on which a final unappealable judgment is entered; and

 

(b)                                  their obligations under this Indenture to make payments in the Required Currency:

 

(1)                                  shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments;

 

(2)                                  shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and

 

(3)                                  shall not be affected by judgment being obtained for any other sum due under this Indenture.

 

Section 16.15.                        Tax Witholding . In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 16.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company agrees (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Company’s possession (or, to the extent not in the Company’s possession, can be obtained through commercially reasonable efforts of the Company) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Company, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability.  The terms of this Section shall survive the termination of this Indenture.

 

65


 

IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.

 

 

Aon Corporation

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

 

 

 

 

Aon plc

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

 

 

 

 

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 

66


 

Annex A

 

NOTATION OF GUARANTEE

 

For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

 

Aon plc

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 



Exhibit 4.5

 

 

AON CORPORATION,

Company

 

AON, PLC

Guarantor

 

and

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

Trustee

 

INDENTURE

 

Dated as of                                      

 

Subordinated Debt Securities

 

 


 

CROSS-REFERENCE SHEET*

 

BETWEEN

 

Provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939 and the within Indenture among Aon plc, Aon Corporation and The Bank of New York Mellon Trust Company, N.A., Trustee:

 

310

 

(a) (1) and (2)

 

 

 

 

 

7.09

310

 

(a) (3) and (4)

 

 

 

 

 

Not applicable

310

 

(b)

 

 

 

 

 

7.08 and 7.10 (b)

310

 

(c)

 

 

 

 

 

Not applicable

311

 

(a) and (b)

 

 

 

 

 

7.13

311

 

(c)

 

 

 

 

 

Not applicable

312

 

(a)

 

 

 

 

 

5.01 and 5.02 (a)

312

 

(b) and (c)

 

 

 

 

 

5.02 (b) and (c)

313

 

(a), (b)(2) and (c)

 

 

 

 

 

5.04 (a)

313

 

(b) (1)

 

 

 

 

 

Not applicable

313

 

(d)

 

 

 

 

 

5.04 (b)

314

 

(a)

 

 

 

 

 

5.03

314

 

(b)

 

 

 

 

 

Not applicable

314

 

(c) (1) and (2)

 

 

 

 

 

17.04

314

 

(c) (3)

 

 

 

 

 

Not applicable

314

 

(d)

 

 

 

 

 

Not applicable

314

 

(e)

 

 

 

 

 

17.04

314

 

(f)

 

 

 

 

 

Not applicable

315

 

(a), (c) and (d)

 

 

 

 

 

7.01

315

 

(b)

 

 

 

 

 

6.07

315

 

(e)

 

 

 

 

 

6.08

316

 

(a) (1)

 

 

 

 

 

6.01 and 6.06

316

 

(a) (2)

 

 

 

 

 

Omitted

316

 

(a) last sentence

 

 

 

 

 

8.04

316

 

(b)

 

 

 

 

 

6.04

317

 

(a)

 

 

 

 

 

6.02

317

 

(b)

 

 

 

 

 

4.03 (a)

318

 

(a)

 

 

 

 

 

17.06

 

* This Cross-Reference Sheet is not part of the Indenture.

 

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TABLE OF CONTENTS

 

ARTICLE ONE

DEFINITIONS

 

Section 1.01.

 

Definitions

 

1

 

 

 

 

 

ARTICLE TWO

ISSUE, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES

 

Section 2.01.

 

Amount Unlimited; Issuable in Series

 

10

Section 2.02.

 

Form of Trustee’s Certificate of Authentication

 

12

Section 2.03.

 

Form, Execution, Authentication, Delivery and Dating of Securities

 

12

Section 2.04.

 

Currency; Denominations; Regular Record Date

 

14

Section 2.05.

 

Exchange and Registration of Transfer of Securities

 

15

Section 2.06.

 

Temporary Securities

 

16

Section 2.07.

 

Mutilated, Destroyed, Lost or Stolen Securities

 

17

Section 2.08.

 

Securities in Global Form

 

18

Section 2.09.

 

Cancellation

 

18

Section 2.10.

 

Computation of Interest

 

18

Section 2.11.

 

CUSIP Numbers

 

18

 

 

 

 

 

ARTICLE THREE

REDEMPTION OF SECURITIES

 

Section 3.01.

 

Redemption of Securities; Applicability of Article

 

18

Section 3.02.

 

Tax Redemption

 

19

Section 3.03.

 

Notice of Redemption; Selection of Securities

 

20

Section 3.04.

 

Payment of Securities Called for Redemption

 

21

 

 

 

 

 

ARTICLE FOUR

PARTICULAR COVENANTS OF THE COMPANY

 

 

 

 

 

Section 4.01.

 

Payment of Principal, Premium and Interest

 

22

Section 4.02.

 

Offices for Notices and Payments, etc.

 

22

Section 4.03.

 

Provisions as to Paying Agent

 

23

Section 4.04.

 

Statement by Officers as to Default

 

24

Section 4.05.

 

Payment of Additional Amounts

 

24

 

 

 

 

 

ARTICLE FIVE

SECURITYHOLDER LISTS AND REPORTS BY THE

COMPANY AND THE TRUSTEE

 

 

 

 

 

Section 5.01.

 

Securityholder Lists

 

27

Section 5.02.

 

Preservation and Disclosure of Lists

 

27

Section 5.03.

 

Reports by the Company

 

29

Section 5.04.

 

Reports by the Trustee

 

29

 

ii


 

ARTICLE SIX

REMEDIES ON DEFAULT

 

Section 6.01.

 

Events of Default

 

30

Section 6.02.

 

Payment of Securities on Default; Suit Therefor

 

32

Section 6.03.

 

Application of Moneys Collected by Trustee

 

34

Section 6.04.

 

Proceedings by Securityholders

 

35

Section 6.05.

 

Remedies Cumulative and Continuing

 

35

Section 6.06.

 

Direction of Proceedings

 

36

Section 6.07.

 

Notice of Defaults

 

36

Section 6.08.

 

Undertaking to Pay Costs

 

36

Section 6.09.

 

Waiver of Past Defaults

 

37

 

 

 

 

 

ARTICLE SEVEN

CONCERNING THE TRUSTEE

 

Section 7.01.

 

Duties and Responsibilities of Trustee

 

37

Section 7.02.

 

Reliance on Documents, Opinions, etc.

 

38

Section 7.03.

 

No Responsibility for Recitals, etc.

 

40

Section 7.04.

 

Ownership of Securities

 

40

Section 7.05.

 

Moneys to Be Held in Trust

 

40

Section 7.06.

 

Compensation, Indemnification and Expenses of Trustee

 

40

Section 7.07.

 

Officers’ Certificate as Evidence

 

41

Section 7.08.

 

Conflicting Interest of Trustee

 

41

Section 7.09.

 

Eligibility of Trustee

 

41

Section 7.10.

 

Resignation or Removal of Trustee

 

42

Section 7.11.

 

Acceptance by Successor Trustee

 

43

Section 7.12.

 

Successor by Merger, etc.

 

44

Section 7.13.

 

Limitations on Rights of Trustee as Creditor

 

44

 

 

 

 

 

ARTICLE EIGHT

CONCERNING THE SECURITYHOLDERS

 

Section 8.01.

 

Action by Securityholders

 

44

Section 8.02.

 

Proof of Ownership

 

45

Section 8.03.

 

Who Are Deemed Absolute Owners

 

45

Section 8.04.

 

Company-Owned Securities Disregarded

 

45

Section 8.05.

 

Revocation of Consents; Future Securityholders Bound

 

46

 

 

 

 

 

ARTICLE NINE

SECURITYHOLDERS’ MEETINGS

 

 

 

 

 

Section 9.01.

 

Purposes of Meetings

 

46

Section 9.02.

 

Call of Meetings by Trustee

 

47

Section 9.03.

 

Call of Meetings by Company or Securityholders

 

47

Section 9.04.

 

Qualification for Voting

 

47

Section 9.05.

 

Regulations

 

47

 

iii


 

Section 9.06.

 

Voting

 

48

 

 

 

 

 

ARTICLE TEN

SUPPLEMENTAL INDENTURES

 

 

 

 

 

Section 10.01.

 

Supplemental Indentures without Consent of Securityholders

 

48

Section 10.02.

 

Supplemental Indentures with Consent of Securityholders

 

49

Section 10.03.

 

Compliance with Trust Indenture Act; Effect of Supplemental Indentures

 

51

Section 10.04.

 

Notation on Securities

 

51

 

 

 

 

 

ARTICLE ELEVEN

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

 

 

 

 

Section 11.01.

 

Company and Guarantor May Consolidate, etc., Only on Certain Terms

 

51

Section 11.02.

 

Successor Person Substituted

 

52

 

 

 

 

 

ARTICLE TWELVE

SATISFACTION AND DISCHARGE OF INDENTURE;

UNCLAIMED MONEYS

 

Section 12.01.

 

Discharge of Indenture

 

53

Section 12.02.

 

Deposited Moneys to Be Held in Trust by Trustee

 

54

Section 12.03.

 

Paying Agent to Repay Moneys Held

 

55

Section 12.04.

 

Return of Unclaimed Moneys

 

55

Section 12.05.

 

Effect on Subordination Provisions

 

55

 

 

 

 

 

ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE

 

Section 13.01.

 

Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance

 

55

Section 13.02.

 

Defeasance and Discharge

 

56

Section 13.03.

 

Covenant Defeasance

 

56

Section 13.04.

 

Conditions to Defeasance or Covenant Defeasance

 

57

Section 13.05.

 

Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions

 

59

Section 13.06.

 

Effect on Subordination Provisions

 

59

 

 

 

 

 

ARTICLE FOURTEEN

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS

 

 

 

 

 

Section 14.01.

 

Indenture and Securities Solely Corporate Obligations

 

60

 

 

 

 

 

ARTICLE FIFTEEN

GUARANTEE

 

iv


 

Section 15.01.

 

Guarantee

 

60

Section 15.02.

 

Subrogation

 

61

Section 15.03.

 

Notation of Guarantee

 

62

Section 15.04.

 

Agreement To Subordinate

 

62

Section 15.05.

 

No Payment of Guaranteed Securities Obligations if Senior Indebtedness of the Guarantor in Default

 

62

Section 15.06.

 

Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities

 

63

Section 15.07.

 

Reliance By Senior Indebtedness of the Guarantor On Subordination Provisions

 

66

Section 15.08.

 

Trustee’s Relation To Senior Indebtedness of the Guarantor

 

67

Section 15.09.

 

Other Provisions Subject Hereto

 

67

 

 

 

 

 

ARTICLE SIXTEEN

SUBORDINATION OF THE SECURITIES

 

 

 

 

 

Section 16.01.

 

Agreement To Subordinate

 

68

Section 16.02.

 

No Payment On Securities If Senior Indebtedness of the Company In Default

 

68

Section 16.03.

 

Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities

 

69

Section 16.04.

 

Reliance By Senior Indebtedness of the Company On Subordination Provisions

 

72

Section 16.05.

 

Trustee’s Relation To Senior Indebtedness of the Company

 

73

Section 16.06.

 

Other Provisions Subject Hereto

 

73

 

 

 

 

 

ARTICLE SEVENTEEN

MISCELLANEOUS PROVISIONS

 

Section 17.01.

 

Benefits of Indenture

 

73

Section 17.02.

 

Provisions Binding on Successors

 

74

Section 17.03.

 

Addresses for Notices, etc.

 

74

Section 17.04.

 

Evidence of Compliance with Conditions Precedent

 

74

Section 17.05.

 

Legal Holidays

 

75

Section 17.06.

 

Trust Indenture Act to Control

 

75

Section 17.07.

 

Execution in Counterparts

 

76

Section 17.08.

 

New York Contract

 

76

Section 17.09.

 

Consent to Service

 

76

Section 17.10.

 

Separability

 

76

Section 17.11.

 

Assignment

 

76

Section 17.12.

 

Waiver of Jury Trial

 

76

Section 17.13.

 

Force Majeure

 

77

Section 17.14.

 

Judgment Currency

 

77

Section 17.15.

 

Tax Witholding

 

78

 

v


 

THIS INDENTURE, dated as of the      day of             , is among Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon plc, a corporation duly organized and existing under the laws of England and Wales (hereinafter sometimes called the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).

 

WITNESSETH:

 

WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its subordinated unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times, to have such relative rankings in priority of payment and to have such other provisions as shall be fixed as hereinafter provided; and

 

WHEREAS, each of the Company and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Company and the Guarantor has in all respects been duly authorized, and each of the Company and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;

 

NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:

 

ARTICLE ONE
DEFINITIONS

 

Section 1.01.                               Definitions.  The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section.  All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended and the Securities Act of 1933, as amended, shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act of 1939 and in the Securities Act of 1933, as amended, in each case, as in force at the date of this Indenture as originally executed.Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:

 

(1)                                  the terms defined in this Article include the plural as well as the singular;

 

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(2)                                  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(3)                                  the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(4)                                  references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture;

 

(5)                                  the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”);

 

(6)                                  provisions apply to successive events and transactions;

 

(7)                                  the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings;

 

(8)                                  the masculine gender includes the feminine and the neuter; and

 

(9)                                  references to agreements and other instruments include subsequent amendments and supplements thereto.

 

ADDITIONAL AMOUNTS

 

The term “Additional Amounts” shall have the meaning specified in Section 4.05.

 

BOARD OF DIRECTORS

 

The term “Board of Directors” shall mean the Board of Directors of the Company, the Executive Committee of the Company or any other committee duly authorized to exercise the powers and authority of the Board of Directors with respect to this Indenture or any Security.

 

BOARD OF DIRECTORS OF THE GUARANTOR

 

The term “Board of Directors of the Guarantor” shall mean the Board of Directors of the Guarantor, the Executive Committee of the Guarantor or any other committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.

 

BOARD RESOLUTION

 

The term “Board Resolution” shall mean a resolution certified by the Company Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

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BOARD RESOLUTION OF THE GUARANTOR

 

The term “Board Resolution of the Guarantor” shall mean a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

BUSINESS DAY

 

The term “Business Day” shall mean, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.

 

CAPITALIZED LEASE OBLIGATION

 

The term “Capitalized Lease Obligation” means indebtedness represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP, and the amount of such indebtedness shall be the capitalized amount of such obligations determined in accordance with GAAP.

 

COMMISSION

 

The term “Commission” shall mean 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 Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

COMPANY

 

The term “Company” shall mean the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

COMPANY ORDER

 

The term “Company Order” means a written order signed in the name of the Company by the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

CORPORATE TRUST OFFICE

 

The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602 Attention:  Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or

 

3

 

such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

COVENANT DEFEASANCE

 

The term “covenant defeasance” shall have the meaning specified in Section 13.03.

 

DEFEASANCE

 

The term “defeasance” shall have the meaning specified in Section 13.02.

 

DEPOSITARY

 

The term “Depositary” shall mean, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.

 

DOLLARS

 

The term “dollars” or “$” shall mean a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.

 

EVENT OF DEFAULT

 

The term “Event of Default” shall mean any event specified as such in or as contemplated by Section 6.01.

 

EXCHANGE ACT

 

The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

GAAP

 

The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.

 

GLOBAL SECURITY

 

The term “Global Security” means a Security in registered global form without interest coupons.

 

GOVERNMENT OBLIGATION

 

The term “Government Obligation” shall have the meaning specified in Section 13.04.

 

4


 

GUARANTEE

 

The term “Guarantee” shall have the meaning specified in Article Fifteen.

 

GUARANTEE SUBORDINATION SECTIONS

 

The term “Guarantee Subordination Sections” shall have the meaning specified in Section 15.04.

 

GUARANTEED OBLIGATION

 

The term “Guaranteed Obligation” shall have the meaning specified in Section 15.01.

 

GUARANTEED SECURITIES OBLIGATION

 

The term “Guaranteed Securities Obligation” shall have the meaning specified in Section 15.01.

 

GUARANTOR

 

The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.

 

HOLDER

 

The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, shall mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

HOME COUNTRY JURISDICTION

 

The term “Home Country Jurisdiction” means the jurisdiction of organization of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.

 

INDENTURE

 

The term “Indenture” shall mean this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended

 

5


 

by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.

 

INTEREST

 

The term “Interest” shall mean, when used with respect to non-interest bearing Securities, interest payable on or after maturity.

 

INTEREST PAYMENT DATE

 

The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.

 

JUNIOR SUBORDINATED INDEBTEDNESS

 

The term “Junior Subordinated Indebtedness of the Company” or “Junior Subordinated Indebtedness of the Guarantor” shall mean (i) indebtedness of the Company or the Guarantor, as applicable, (whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed by the Company or the Guarantor, as applicable) which, pursuant to the terms of the instrument creating or evidencing the same, is subordinate to the Securities in right of payment or in rights upon liquidation and (ii) as to the Company, indebtedness, if any, under the junior subordinated indenture dated as of January 13, 1997, amended and restated as of April 2, 2012, between the Company, the Guarantor  and The Bank of New York Mellon Trust Company, N.A., as trustee.

 

OFFICERS’ CERTIFICATE

 

The term “Officers’ Certificate” shall mean a certificate signed by the Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Company Secretary or any Assistant Secretary of the Company.

 

OFFICERS’ CERTIFICATE OF THE GUARANTOR

 

The term “Officers’ Certificate of the Guarantor” shall mean a certificate signed by the Chairman of the Board of Directors of the Guarantor or the President or any Executive Vice President or any Vice President or the Treasurer and by the Corporate Secretary or any Assistant Secretary of the Guarantor.

 

OPINION OF COUNSEL

 

The term “Opinion of Counsel” shall mean an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor or who may be other counsel.

 

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ORIGINAL ISSUE DISCOUNT SECURITIES

 

The term “Original Issue Discount Securities” shall mean a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.

 

OUTSTANDING

 

The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except

 

(a)           Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(b)           Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice;

 

(c)           Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Company;

 

(d)           Securities which have been defeased pursuant to Section 13.02; and

 

(e)           Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange.

 

PAYMENT BLOCKAGE NOTICE

 

The term “Payment Blockage Notice” shall have the meaning specified in Section 15.05 when used in reference to the Guarantor, and the meaning specified in Section 16.02 when used in reference to the Company.

 

PAYMENT BLOCKAGE PERIOD

 

The term “Payment Blockage Period” shall have the meaning specified in Section 15.05 when used in reference to the Guarantor, and the meaning specified in Section 16.02 when used in reference to the Company.

 

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PERIODIC OFFERING

 

The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.

 

PERSON

 

The term “Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

PLACE OF PAYMENT

 

The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Company in the Borough of Manhattan, The City of New York, designated and maintained by the Company pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.

 

REGULAR RECORD DATE

 

The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.

 

RESPONSIBLE OFFICER

 

The term “Responsible Officer”, when used with respect to the Trustee, shall mean any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

SECURITY REGISTER AND SECURITY REGISTRAR

 

The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.

 

SENIOR INDEBTEDNESS

 

The term “Senior Indebtedness of the Company” or “Senior Indebtedness of the Guarantor” shall mean the principal of and interest (including, without limitation, any interest accruing subsequent to the filing of a petition or other action concerning bankruptcy or other similar proceedings) on the following, whether presently outstanding or hereafter incurred: (a) all

 

8


 

indebtedness of the Company or the Guarantor, as applicable, (i) for money borrowed (other than that evidenced by the Securities), (ii) which is evidenced by a note, debenture or similar instrument (including a purchase money mortgage) given in connection with the acquisition of any property or assets (other than inventory or other similar property acquired in the ordinary course of business), including securities, or (iii) for the payment of money relating to a Capitalized Lease Obligation; (b) any liabilities of others described in the preceding clause (a) which the Company or the Guarantor, as applicable, has guaranteed or which is otherwise its legal liability; (c) indebtedness of the Company or the Guarantor, as applicable, under interest rate swaps, caps or similar hedging agreements and foreign exchange contracts, currency swaps or similar agreements; and (d) renewals, extensions, refundings, restructurings, amendments and modifications of any such indebtedness or guarantee.  Notwithstanding anything to the contrary in this Indenture or the Securities, “Senior Indebtedness of the Company” or “Senior Indebtedness of the Guarantor” shall not include (w) any indebtedness of the Company or the Guarantor, as applicable, to a subsidiary, (y) any Junior Subordinated Indebtedness of the Company or Junior Subordinated Indebtedness of the Guarantor, as applicable or (z) any indebtedness of the Company or the Guarantor, as applicable, which expressly provides that such indebtedness ranks equally or “pari passu” in right of payment or in rights upon liquidation to the Securities.

 

SHARES

 

The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of the Guarantor authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Guarantor which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.

 

TAXES

 

The term “Taxes” shall have the meaning specified in Section 4.05.

 

TRUST INDENTURE ACT

 

Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

UNITED STATES

 

The term “United States” shall mean the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.

 

9


 

ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES

 

Section 2.01.           Amount Unlimited; Issuable in Series.  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.The Securities may be issued in one or more series.  There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

 

(1)           the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms);

 

(3)           whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security;

 

(4)           the date or dates on which the principal of the Securities of the series is payable;

 

(5)           the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date;

 

(6)           whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture;

 

(7)           the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable;

 

(8)           the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, repurchased or repaid, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;

 

10


 

(9)           the obligation, if any, of the Company to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Company to select the Securities to be redeemed, repurchased or repaid;

 

(10)         if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than dollars;

 

(11)         the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;

 

(12)         if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02;

 

(13)         if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series);

 

(14)         any deletions from, modifications of or additions to the Events of Default or covenants of the Company and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein);

 

(15)         whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and

 

(16)         any other terms of the Securities of the series.

 

All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and

 

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set forth, or determined in the manner provided, in such Officers’ Certificate or in any such indenture supplemental hereto.

 

If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.

 

With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officers’ Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.

 

Section 2.02.           Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:

 

[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

 

 

 

Dated:

 

 

By:

 

 

Authorized Officer

 

Section 2.03.           Form, Execution, Authentication, Delivery and Dating of Securities .  The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officers’ Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities.  Such Securities may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Company may deem appropriate and as are not inconsistent

 

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with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.

 

Each Security shall be executed on behalf of the Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary.  Such signatures may be the manual or facsimile signatures of the present or any future such officers.

 

With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be manual or facsimile.

 

Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee.  At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series.  If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate pursuant to Section 17.04 and an Opinion of Counsel stating:

 

(a)           if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;

 

(b)           if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and

 

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(c)           that each such Security, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.

 

If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 2.01 if such Officers’ Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.

 

Every Security shall be dated the date of its authentication.

 

No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.

 

Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

Section 2.04.           Currency; Denominations; Regular Record Date .  Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.

 

The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01.  In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.

 

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The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, The City of New York are authorized by law or required by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.

 

The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Section 2.05.           Exchange and Registration of Transfer of Securities .  Securities of any series may be exchanged for a like aggregate principal amount of Securities of other authorized denominations of such series.  Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.

 

The Company (or its designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided.  The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time.  At all reasonable times the Security Register shall be open for inspection by the Trustee.  Upon due presentment for registration of transfer of any Security of a particular series at such office or

 

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agency, the Company shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Company or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.

 

All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.

 

All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased, or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.

 

Section 2.06.           Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced).  Temporary Securities of any series shall be issuable in any authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution.  Every temporary Security shall be executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Company shall execute and shall furnish definitive Securities of such series evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago

 

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or the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations.  Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

 

Section 2.07.           Mutilated, Destroyed, Lost or Stolen Securities .  In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof.  The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company.  Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution.  In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to the satisfaction of the Company of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

 

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All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

Section 2.08.           Securities in Global Form .  If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.

 

Section 2.09.           Cancellation .  All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture.  The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Company or, if requested to do so by the Company, shall return such cancelled Securities to the Company.

 

Section 2.10.           Computation of Interest .  Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 2.11.           CUSIP Numbers .  The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities,  and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

ARTICLE THREE
REDEMPTION OF SECURITIES

 

Section 3.01.           Redemption of Securities; Applicability of Article .  Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series

 

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of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.

 

Section 3.02.           Tax Redemption The Company shall have the option to redeem  the Securities of any series, in whole but not in part, at any time prior to the maturity date of the principal of the Securities of any series, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption, if, with respect to such series:

 

(a)           the Company determines that, as a result of:

 

(1)           any change in, amendment to, or announced proposed change in the laws or any regulations or rulings promulgated thereunder of a Home Country Jurisdiction (or of any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the jurisdiction in which such successor Person is organized (or deemed resident for tax purposes); or

 

(2)           any change in the application or official interpretation of such laws,  regulations or rulings, or (in either case) any change in the application or official interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which any such jurisdiction is a party, which change, execution or amendment becomes effective on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), with respect to taxes imposed by such other jurisdiction in accordance with Section 11.01, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series or, if applicable, in the Guarantee relating to such Securities of such series,

 

the Company, the Guarantor or such successor Person, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company, the Guarantor, as applicable, or such successor Person; or

 

(b)           the Company determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Home Country Jurisdiction (or any political subdivision or taxing authority thereof) or, in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of

 

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Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, the jurisdiction in which such successor Person is organized (or deemed resident for tax purposes), which action is taken or brought on or after (i) the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities unless clause (ii) applies, (ii) in the event of the assumption of the obligations of the Company hereunder and under the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the assumption of the obligations of the Guarantor hereunder and under the Guarantee, by a successor Person not organized under the laws of a Home Country Jurisdiction (or in each case, any political subdivision or taxing authority thereof) in accordance with Section 11.01, with respect to taxes imposed by such other jurisdiction, the date of the transaction resulting in such assumption, or (iii) such other date specified in the Securities of such series, that there is a substantial probability that the circumstances described in subsection (a) above would exist.

 

(c)           Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.

 

(d)           The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, or such successor Person will also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price.

 

(e)           Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company will deliver to the Trustee an Officer’s Certificate stating that the Company is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and, if the redemption is pursuant to clause (b) above, the opinion of independent counsel referred to in such clause (b), which shall be in a form satisfactory to the Trustee. Delivery of any notice of redemption pursuant to this Section 3.02 will be conclusive and binding on the Holders of the Securities being redeemed. Once the Company delivers such an Officer’s Certificate to the Trustee, any notice of redemption that has been given shall be irrevocable.

 

Section 3.03.           Notice of Redemption; Selection of Securities .  In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, it shall fix a date for redemption, it shall prepare the notice of such redemption and it shall mail or, at the Company’s request and expense, the Trustee shall mail such notice of redemption at least thirty (30) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register.  Such mailing shall be by prepaid first class mail or in the case of global securities, delivered electronically to the Depository. Any notice

 

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which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice.  In any case, failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.

 

Each notice of redemption shall specify the date fixed for redemption, the redemption price at which the applicable Securities are to be redeemed, the Place of Payment, that payment will be made upon presentation and surrender of such Securities and that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange,

 

Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption.  The Company will give the Trustee notice of each redemption at least forty-five (45) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.

 

If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair and, if applicable, in accordance with the procedures of the Depositary, the Securities of such series to be redeemed; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.

 

Section 3.04.           Payment of Securities Called for Redemption .  If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of

 

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Payment stated in such notice at the applicable redemption price and on and after said date (unless the Company and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue.  On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Company at the applicable redemption price.  Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Company shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04.  At the option of the Company, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.

 

Upon presentation of any Security redeemed in part only (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.

 

ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY

 

Section 4.01.           Payment of Principal, Premium and Interest .  The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture.  The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Company may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.

 

Section 4.02.           Offices for Notices and Payments, etc .  As long as any of the Securities of a series remain outstanding, the Company will designate and maintain, in the City of Chicago and the Borough of Manhattan, The City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Company in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment.  The Company will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof.  In case the Company shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and

 

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demands may be served at the corporate trust office of the Trustee in the City of Chicago and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes.  The Company will 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 each of                      , located at                             and                            as a Security Registrar and as the office or agency of the Company in the City of Chicago and the Borough of Manhattan, the City of New York, respectively, where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities of any series or of this Indenture may be served.

 

Section 4.03.           Provisions as to Paying Agent.     Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,

 

(1)           that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,

 

(2)           that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held,

 

(3)           that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and

 

(4)           at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent.

 

(b)           If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due.  The Company will promptly notify the Trustee of any failure to take such action.

 

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(c)           Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

(d)           Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.

 

(e)           Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03.

 

(f)            To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis , to such Shares or other securities or property.

 

Section 4.04.           Statement by Officers as to Default.

 

(a)           The Company will 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, which shall include the statements provided for in Section 17.04 and stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by it and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge.

 

(b)           The Company will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default.

 

Section 4.05.           Payment of Additional Amounts .

 

(a)           All payments of principal of and premium, if any, and interest, if any, on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee shall be free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed or levied by or on behalf of the government of a Home Country Jurisdiction, any territory of a Home Country Jurisdiction or any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the

 

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extent such Taxes are required to be withheld or deducted by law or by the interpretation or administration thereof.

 

If the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each beneficial owner (including such Additional Amounts), after such withholding or deduction, shall not be less than the amount such beneficial owner would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:

 

(1)           that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Home Country Jurisdiction or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;

 

(2)           that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;

 

(3)           payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;

 

(4)           that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:

 

(i)            such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and

 

(ii)           at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;

 

(5)           that would not have been imposed but for the presentation of a Security or, as applicable, the Guarantee (where presentation is required) for payment on a date more

 

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than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;

 

(6)           that are imposed on a payment and are required to be made pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive, or any law implementing or complying with, or introduced in order to conform to, such directive or directives;

 

(7)           that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;

 

(8)           that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, had been made to a paying agent other than the paying agent to which the presentation was made; or

 

(9)           any combination of the foregoing clauses (1) through (8);

 

nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security.

 

(b)           All references in this Indenture, other than in Articles Twelve or Thirteen,  to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.

 

(c)           The Company shall maintain, in respect of Securities of each series outstanding, at least one paying agent located outside the United Kingdom. In the event that a paying agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a paying agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive or any law implementing or complying with, or introduced in order to conform to such directive or directives, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such directive.

 

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(d)           The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.

 

(e)           If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), such successor Person will pay Additional Amounts on the same basis set forth in this Section 4.05, except that references to “Home Country Jurisdiction” will be treated as references to both the Home Country Jurisdictions at the issue date of the Securities of such series and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).

 

ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE

 

Section 5.01.           Securityholder Lists .  The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:

 

(a)           semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company; and

 

(b)           at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished;

 

provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.

 

Section 5.02.           Preservation and Disclosure of Lists .

 

(a)  The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee in its

 

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capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.

 

(b)           In case three or more Holders of Securities of a series (hereinafter referred to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants’ desire to communicate with other Holders of Securities of such series or with Holders of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five (5) Business Days after the receipt of such application, at its election, either

 

(1)           afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or

 

(2)           inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five (5) days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law.  Such written statement shall specify the basis of such opinion.  If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holder with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c)           Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent of the Company or of the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with the

 

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provisions of subsection (b) of this Section, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).

 

Section 5.03.           Reports by the Company .  The Company covenants:

 

(a)           to file with the Trustee within thirty (30) days after the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)           to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and

 

(c)           to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

Section 5.04.           Reports by the Trustee .

 

(a)           The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a).

 

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(b)           A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Company.  The Company agrees to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange.

 

ARTICLE SIX
REMEDIES ON DEFAULT

 

Section 6.01.           Events of Default .  In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:

 

(a)           default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), whether or not prohibited by Article Sixteen, either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or

 

(b)           default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, whether or not prohibited by Article Sixteen, and continuance of such default for a period of thirty (30) days; or

 

(c)           with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or

 

(d)           failure on the part of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, the Guarantor in this Indenture applicable to Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Company or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company or if applicable, the Guarantor by the Trustee, or to the Company and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or

 

(e)           a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee,

 

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sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of the Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or

 

(f)            except for any case, proceeding, meeting, resolution or order in connection with a winding-up of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of the Company or the Guarantor, as applicable, either the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction  now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of the property of the Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors;

 

(g)           default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 or upon the exchange of any Security of such series which is exchangeable for other securities or property, whether or not prohibited by Article Sixteen, and continuance of such default for a period of 10 Business Days; or

 

(h)           any other Event of Default provided with respect to Securities of such series;

 

then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.

 

The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the

 

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Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that the terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.

 

Section 6.02.           Payment of Securities on Default; Suit Therefor .  The Company covenants that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal

 

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thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be); 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 willful misconduct.

 

In case the Company shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.

 

In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, the Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to the Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable

 

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expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct.

 

Nothing herein contained shall be deemed to authorize 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 Securities 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.

 

All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 6.03.           Application of Moneys Collected by Trustee .  Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

FIRST:  To the payment of reasonable costs and expenses applicable to such Securities of 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 willful misconduct;

 

SECOND:  In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;

 

THIRD:  In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if

 

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any, and (to the extent that such interest has been collected by the Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and

 

FOURTH:  Any remainder to the Company or as a court of competent jurisdiction may direct.

 

Section 6.04.           Proceedings by Securityholders .  No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing himself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.  For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.  With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.

 

Section 6.05.           Remedies Cumulative and Continuing .  All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted

 

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by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.

 

Section 6.06.           Direction of Proceedings .  The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to 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, with respect to the Securities of such series; provided, however, that (subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) 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 action or proceedings so directed would involve the Trustee in personal liability.

 

Section 6.07.           Notice of Defaults .  The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, 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 or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.

 

Section 6.08.           Undertaking to Pay Costs .  All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any

 

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series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.

 

Section 6.09.           Waiver of Past Defaults .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

 

(1)           in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series;

 

(2)           in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or

 

(3)           in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series 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 and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

ARTICLE SEVEN
CONCERNING THE TRUSTEE

 

Section 7.01.           Duties and Responsibilities of Trustee .  The Trustee, except during the continuance of an Event of Default of a particular series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(a)           prior to the occurrence of an Event of Default with respect to a particular series and after the curing or waiving of all Events of Default with respect to such series which may have occurred:

 

(1)           the duties and obligations of the Trustees with respect to such series shall be determined solely by the express provisions of this Indenture, and the

 

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Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)           in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);

 

(b)           the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(c)           the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

Whether or not therein 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 Section.

 

No provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

Section 7.02.           Reliance on Documents, Opinions, etc .  Subject to the provisions of Section 7.01:

 

(a)           the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(b)           any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by the Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or the President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the

 

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Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; any request, direction, order or demand of the Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Guarantor by the Chairman of the Board of Directors of the Guarantor or any Vice Chairman of the Board of Directors of the Guarantor or its President or any Executive Vice President or any Vice President or the Treasurer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution of the Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Guarantor;

 

(c)           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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel;

 

(d)           the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby;

 

(e)           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, coupon 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 or the Guarantor personally or by agent or attorney;

 

(f)            the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder;

 

(g)           the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(h)           in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

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(i)            the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written knowledge thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture ;

 

(j)            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

 

(k)           the Trustee may request that the Company or the Guarantor deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

Section 7.03.           No Responsibility for Recitals, etc .  The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture.  The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

Section 7.04.           Ownership of Securities .  The Trustee or any agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company, the Guarantor or the Trustee.

 

Section 7.05.           Moneys to Be Held in Trust .  Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.  Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.  So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Company, signed by its Chairman of the Board of Directors or any Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President or its Treasurer or any Assistant Treasurer.

 

Section 7.06.           Compensation, Indemnification and Expenses of Trustee .  The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct.  The Company and, with

 

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respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises.  The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder.  Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.

 

Section 7.07.           Officers’ Certificate as Evidence .  Subject to the provisions of Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate or an Officers’ Certificate of the Guarantor, as applicable, delivered to the Trustee, and such Certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 7.08.           Conflicting Interest of Trustee .

 

(a)           If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act.

 

(b)           In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by the conflicting interest as the names and addresses of such Holders appear on the Security Register.

 

Section 7.09.           Eligibility of Trustee .  There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by Federal, State, Territorial or District of Columbia authority and (c) shall have at all times a

 

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combined capital and surplus of not less than fifty million dollars.  If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case 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 Section 7.10.

 

Section 7.10.           Resignation or Removal of Trustee .

 

(a)  The Trustee, or any trustee or trustees hereafter appointed, may, upon sixty (60) days’ written notice to the Company, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company, and by mailing notice of such resignation to the Holders of then outstanding Securities of each series affected at their addresses as they shall appear on the Security Register.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the mailing of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(b)           In case at any time any of the following shall occur:

 

(1)           the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or

 

(2)           the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or

 

(3)           the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which

 

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instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(c)           The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Company and appoint a successor trustee with respect to the Securities of such series with the consent of the Company.

 

(d)           Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.

 

(e)           Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.

 

Section 7.11.           Acceptance by Successor Trustee .  Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act.  Upon request of any such successor trustee, the Company and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.

 

In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of

 

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this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.

 

No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.

 

Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register.  If the Company fails to mail such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Company.

 

Section 7.12.           Successor by Merger, etc .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 7.13.           Limitations on Rights of Trustee as Creditor .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS

 

Section 8.01.           Action by Securityholders .  Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series 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 Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, or (b) by the record of the

 

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Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.

 

In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken 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 principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.

 

Section 8.02.           Proof of Ownership .  Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.

 

Section 8.03.           Who Are Deemed Absolute Owners .  The Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.

 

If the Company or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Company or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.

 

Section 8.04.           Company-Owned Securities Disregarded .  In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Company or by any person directly or indirectly

 

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controlling or controlled by or under direct or indirect control with the Company, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the Trustee knows are so owned shall be disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.

 

Section 8.05.           Revocation of Consents; Future Securityholders Bound .  At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security.  Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security.  Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.

 

ARTICLE NINE
SECURITYHOLDERS’ MEETINGS

 

Section 9.01.           Purposes of Meetings .  A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:

 

(1)           to give any notice to the Company, the Guarantor (if applicable) or 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 Securityholders pursuant to any of the provisions of Article Six;

 

(2)           to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven;

 

(3)           to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or

 

(4)           to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law.

 

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Section 9.02.           Call of Meetings by Trustee .  The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, 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 of Securities of any or all series, 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 to all Holders of then Outstanding Securities of such series, by mailing such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (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 Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series 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 9.03.           Call of Meetings by Company or Securityholders .  In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Company or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing or publishing notice thereof as provided in Section 9.02.

 

Section 9.04.           Qualification for Voting .  To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder.  The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders 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 9.05.           Regulations .  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities 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 it 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 Securityholders as provided in Section 9.03, in which case the Company or the Securityholders 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 Securities represented at the meeting and entitled to vote.

 

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Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security 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 Securityholder or proxy.  Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.

 

Section 9.06.           Voting .  The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders 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 Securities 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 Securityholders 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 9.02.  The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

ARTICLE TEN
SUPPLEMENTAL INDENTURES

 

Section 10.01.         Supplemental Indentures without Consent of Securityholders .  The Company, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes:

 

(a)           to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Article Eleven hereof;

 

(b)           to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Company or the Guarantor;

 

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(c)           to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series;

 

(d)           to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect;

 

(e)           to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities;

 

(f)            to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; and

 

(g)           to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03.

 

The Trustee is hereby authorized to join with the Company and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.

 

Section 10.02.         Supplemental Indentures with Consent of Securityholders .  With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Company, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the

 

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provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:

 

(a)           extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security;

 

(b)           impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor);

 

(c)           reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults;

 

(d)           make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or

 

(e)           modify any of the provisions of this Section or Section 6.09, 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 Security affected thereby; provided however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e).

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Upon the request of the Company and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

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It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Promptly after the execution and delivery by the Company, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register.  Any failure of the Company or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.

 

Section 10.03.         Compliance with Trust Indenture Act; Effect of Supplemental Indentures .  Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act of 1939, as amended and then in effect.  Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officers’ Certificate, and an Officers’ Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.

 

Section 10.04.         Notation on Securities .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  New Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.

 

ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 11.01.         Company and Guarantor May Consolidate, etc., Only on Certain Terms .  So long as any Securities shall be Outstanding, neither the Company nor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:

 

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(a)           (1) The Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which the Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety:

 

(i)            expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and

 

(ii)           in the case of the Company, is a corporation or other entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia.

 

(b)           immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or the Guarantor, as applicable, as a result of such transaction as having been incurred by the Company or the Guarantor, as applicable, 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; and

 

(c)           the Company has delivered to the Trustee an Officers’ Certificate or the Guarantor has delivered to the Trustee an Officers’ Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 11.02.         Successor Person Substituted .  So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company or the Guarantor, as applicable, is merged or converted 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 or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case

 

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may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS

 

Section 12.01.         Discharge of Indenture .  This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when

 

(a)           either:

 

(i)            all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or

 

(ii)           all such Securities of such series not theretofore delivered to the Trustee for cancellation:

 

(A)          have become due and payable; or

 

(B)          will become due and payable at their stated maturity within one year; or

 

(C)          are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;

 

and the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any) with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;

 

(b)           the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all

 

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other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and

 

(c)           the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:

 

(1)   All obligations under Section 7.06;

 

(2)  If money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02, 12.04, and 12.05;

 

(3)  Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Company or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and

 

(4)  Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares, securities or other property.

 

After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Company’s and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.

 

Section 12.02.         Deposited Moneys to Be Held in Trust by Trustee .  Subject to Section 12.04, all moneys deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.

 

Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of

 

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the Company or the Guarantor, as the case may be, any money held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money was deposited.

 

Section 12.03.         Paying Agent to Repay Moneys Held .  In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.

 

Section 12.04.         Return of Unclaimed Moneys .  Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Company or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.

 

Section 12.05.         Effect on Subordination Provisions .Unless otherwise expressly provided pursuant to Section 2.01 with respect to the Securities of any series, the provisions of Article Sixteen hereof, insofar as they pertain to the Securities of such series, are hereby expressly made subject to the provisions for satisfaction and discharge set forth in this Article and, anything herein to the contrary notwithstanding, upon the effectiveness of such satisfaction and discharge pursuant to this Article with respect to the Securities of such series, all of the Securities of such series shall thereupon cease to be so subordinated and shall no longer be subject to the provisions of Article Sixteen and, without limitation to the foregoing, all moneys, Government Obligations and Shares or other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such satisfaction and discharge and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on such Securities as and when the same shall become due and payable notwithstanding the provisions of Article Sixteen.

 

ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE

 

Section 13.01.         Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance .  Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the

 

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Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.

 

Section 13.02.         Defeasance and Discharge .  Upon the Company’s exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance” ).  Defeasance shall mean that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided , however , that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen.  Subject to compliance with this Article Thirteen, the Company may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior  exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.

 

Section 13.03.         Covenant Defeasance .  Upon the Company’s exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance” ).  Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.

 

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Section 13.04.         Conditions to Defeasance or Covenant Defeasance .  The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:

 

(a)           The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Governmental Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, 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, and which shall be applied by the Trustee  (or other qualifying trustee)  to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities.  For this purpose, “Government Obligations” means securities that are (I) direct obligations of the government which issued the currency in which the Securities of such series are denominated 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 such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such 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 such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.

 

(b)           No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of

 

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such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(c)           Such defeasance or covenant defeasance shall 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.

 

(d)           Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted.

 

(e)           In the case of an election with respect to Section 13.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable Federal income tax law (including, but not limited to, a change in the Code, proposed, temporary or final Treasury regulations, Revenue Rulings, Revenue Procedures, Internal Revenue Service Notices, Announcements, and other public announcements), in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

 

(f)            In the case of an election with respect to Section 13.03, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

 

(g)           Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.

 

(h)           The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with.

 

(i)            If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a),

 

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Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.

 

Section 13.05.         Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.

 

Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations were deposited.

 

Section 13.06.         Effect on Subordination Provisions . Unless otherwise expressly provided pursuant to Section 2.01, with respect to the Securities of any series, the provisions of Article Sixteen hereof, insofar as they pertain to the Securities of such series, are hereby expressly made subject to the provisions for defeasance and covenant defeasance set forth in this Article and, anything herein to the contrary notwithstanding, upon the effectiveness of any such defeasance or covenant defeasance pursuant to this Article with respect to the Securities of such series, all of the Securities of such series as to which defeasance or covenant defeasance, as the case may be, shall have become effective shall thereupon cease to be so subordinated and shall no longer be subject to the provisions of Article Sixteen with respect to such Securities and, without limitation to the foregoing, all moneys, Government Obligations and Shares or other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such defeasance or covenant defeasance, as the case may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on such Securities as and when the same shall become due and payable notwithstanding the provisions of Article Sixteen.

 

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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS

 

Section 14.01.         Indenture and Securities Solely Corporate Obligations .  No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Company, the Guarantor or any successor Person to either of them, either directly or through the Company, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.

 

ARTICLE FIFTEEN
GUARANTEE

 

Section 15.01.         Guarantee .The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.

 

The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture or otherwise with respect to the Securities registered in such Holder’s name  (each a “Guaranteed Securities Obligation” and, collectively, “the Guaranteed Securities Obligations”), and (b) the Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture to the Trustee (together with a Guaranteed Securities Obligation, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.

 

The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification or consent granted to the Company with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation,

 

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renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.

 

The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Company, first make demand upon or seek to enforce remedies against the Company or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.

 

The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.

 

The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Company, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.

 

The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.

 

The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of the Company or otherwise.

 

The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Company or by any defense which the Company may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.  No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.

 

Section 15.02.         Subrogation . The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations

 

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relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.

 

Section 15.03.         Notation of Guarantee . To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.

 

The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.

 

The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.

 

Section 15.04.         Agreement To Subordinate .  The Guarantor, for itself and its successors, and each Holder, by his acceptance of Securities, agree that the payment of Guaranteed Securities Obligations is subordinated in right of payment, to the extent and in the manner stated in this Article, to the prior payment in full of all Senior Indebtedness of the Guarantor.  Each Holder by its acceptance of the Securities authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate, as between the holders of Senior Indebtedness of the Guarantor and such Holder, the subordination provided in Sections 15.04, 15.05, 15.06, 15.07, 15.08 and 15.09 (collectively, the “Guarantee Subordination Sections”) and appoints the Trustee as his attorney-in-fact for such purpose.  If the Trustee does not file a proper claim or proof of debt in the form required in any voluntary or involuntary dissolution, winding up, liquidation, reorganization, arrangement or similar proceedings relating to the Guarantor prior to 30 days before the expiration of time to file such claim or claims, then any holder or holders of Senior Indebtedness of the Guarantor or their representative or representatives are hereby authorized to and have the right to file an appropriate claim for and on behalf of the Holders.  The Guaranteed Securities Obligations shall be senior in right of payment and in rights upon liquidation to all Junior Subordinated Indebtedness of the Guarantor.

 

Section 15.05.         No Payment of Guaranteed Securities Obligations if Senior Indebtedness of the Guarantor in Default .  Anything in this Indenture to the contrary notwithstanding, no payment of  Guaranteed Securities Obligations shall be made by or on behalf of the Guarantor (i) unless full payment of amounts then due for principal, sinking funds and interest and of all other amounts then due on all Senior Indebtedness of the Guarantor has been made or duly provided for pursuant to the terms of the instrument governing such Senior Indebtedness of the Guarantor, (ii) if, at the time of such payment, redemption, purchase or other acquisition, or immediately after giving effect thereto, there shall exist under any Senior Indebtedness of the Guarantor, or any agreement pursuant to which any Senior Indebtedness of the Guarantor is issued, any default, which default shall not have been cured or waived and which default shall have resulted in the full amount of such Senior Indebtedness of the Guarantor being declared due and payable or (iii) if, at the time of such payment, redemption, purchase or other acquisition, the Trustee shall have received written notice from the holder or holders of any Senior Indebtedness of the Guarantor or their representative or representatives (a “Payment Blockage

 

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Notice”) that there exists under such Senior Indebtedness of the Guarantor, or any agreement pursuant to which such Senior Indebtedness of the Guarantor is issued, any default, which default shall not have been cured or waived, permitting the holders thereof to declare the full amount of such Senior Indebtedness of the Guarantor due and payable, but only for the period (the “Payment Blockage Period”) commencing on the date of receipt of the Payment Blockage Notice and ending (unless earlier terminated by notice given to the Trustee by the holders of such Senior Indebtedness of the Guarantor) on the earlier of (A) the date on which such event of default shall have been cured or waived or (B) 180 days from the receipt of the Payment Blockage Notice.  Upon termination of a Payment Blockage Period, payments on account of principal of, and premium, if any, and interest, if any, on, or any other amounts payable with respect to the Securities (other than amounts due and payable by reason of the acceleration of the maturity of the Securities) and redemptions, purchases or other acquisitions may be made by or on behalf of the Guarantor.  Notwithstanding anything herein to the contrary, (A) only one Payment Blockage Notice may be given during any period of 360 consecutive days with respect to the same event of default and any other events of default on the same issue of Senior Indebtedness of the Guarantor existing and known to the Person giving such notice at the time of such notice and (B) no new Payment Blockage Period may be commenced by the holder or holders of the same issue of Senior Indebtedness of the Guarantor or their representative or representatives during any period of 360 consecutive days unless all events of default which were the object of the immediately preceding Payment Blockage Notice, and any other event of default on the same issue of Senior Indebtedness of the Guarantor existing and known to the Person giving such notice at the time of such notice, have been cured or waived.  The provisions of this Section 15.05 shall not prevent a sinking fund payment (if any) in respect of Guaranteed Securities Obligations made with Securities properly acquired prior to the happening of such default.  In the event that, notwithstanding the provisions of this Section 15.05, payments are made by or on behalf of the Guarantor in contravention of the provisions of this Section 15.05, such payments shall be held by the Trustee, any paying agent or the Holders, as applicable, in trust for the benefit of, and shall be paid over to and delivered to, at the written direction of, the holders of Senior Indebtedness of the Guarantor or their representative or the trustee under the indenture or other agreement (if any), pursuant to which any instruments evidencing any Senior Indebtedness of the Guarantor may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness of the Guarantor remaining unpaid to the extent necessary to pay all Senior Indebtedness of the Guarantor in full in accordance with the terms of such Senior Indebtedness of the Guarantor, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness of the Guarantor.

 

The Guarantor shall give prompt written notice to the Trustee and any paying agent of any default under any Senior Indebtedness of the Guarantor or under any agreement pursuant to which any Senior Indebtedness of the Guarantor may have been issued.

 

Section 15.06.         Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities .

 

(a) Upon (i) any acceleration of the principal amount due on the Securities because of an Event of Default or (ii) any distribution of assets of the Guarantor upon any dissolution, winding up, liquidation or reorganization of the Guarantor (whether in administration, bankruptcy, insolvency, administration or receivership proceedings or upon an assignment for the benefit of

 

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creditors or any other dissolution, winding up, liquidation or reorganization of the Guarantor and other than in respect of a solvent winding up or a reconstruction):

 

(1)           the holders of all Senior Indebtedness of the Guarantor shall first be entitled to receive payment in full of the principal thereof, the interest thereon and any other amounts due thereon before the Holders are entitled to receive payment of Guaranteed Securities Obligations;

 

(2)           any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities other than securities of the Guarantor as reorganized or readjusted or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in the Guarantee Subordination Sections with respect to the Guaranteed Securities Obligations, to the payment in full without diminution or modification by such plan of all Senior Indebtedness of the Guarantor, to which the Holders or the Trustee would be entitled except for the provisions of the Guarantee Subordination Sections, shall be paid by the liquidating trustee or agent or other Person making such a payment or distribution, directly to the holders of Senior Indebtedness of the Guarantor (or their representatives) or trustee(s) acting on their behalf, ratably according to the aggregate amounts remaining unpaid on account of the principal of and premium, if any, and interest, if any on, and other amounts due on the Senior Indebtedness of the Guarantor held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness of the Guarantor remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Guarantor; and

 

(3)           in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities other than securities of the Guarantor as reorganized or readjusted or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in the Guarantee Subordination Sections with respect to the Guaranteed Securities Obligations, to the payment in full without diminution or modification by such plan of Senior Indebtedness of the Guarantor, shall be received by the Trustee or the Holders before all Senior Indebtedness of the Guarantor is paid in full, such payment or distribution shall be held in trust for the benefit of, and be paid over to, at the written direction of,  the holders of the Senior Indebtedness of the Guarantor remaining unpaid (or their representatives) or trustee(s) acting on their behalf, ratably as aforesaid, for application to the payment of such Senior Indebtedness of the Guarantor until all such Senior Indebtedness of the Guarantor shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Guarantor.

 

Subject to the payment in full of all Senior Indebtedness of the Guarantor, the Holders shall be subrogated to the rights of the holders of Senior Indebtedness of the Guarantor to receive payments or distributions of cash, property or securities of the Guarantor applicable to the Senior Indebtedness of the Guarantor until the Guaranteed Securities Obligations shall be paid in full and, for purposes of such subrogation, no such payments or distributions to the holders of

 

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Senior Indebtedness of the Guarantor of cash, property or securities which otherwise would have been payable or distributable to Holders shall, as between the Guarantor, its creditors other than the holders of Senior Indebtedness of the Guarantor, and the Holders, be deemed to be a payment by the Guarantor to or on account of the Senior Indebtedness of the Guarantor, it being understood that the provisions of the Guarantee Subordination Sections are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness of the Guarantor, on the other hand.

 

Nothing contained in the Guarantee Subordination Sections or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Guarantor and its creditors other than the holders of Senior Indebtedness of the Guarantor, the obligation of the Guarantor, which is absolute and unconditional, to pay to the Holders all amounts due with respect to the Guaranteed Securities Obligations as and when the same shall become due and payable in accordance with the terms of this Indenture and the Securities or is intended to or shall affect the relative rights of the Holders and creditors of the Guarantor other than holders of Senior Indebtedness of the Guarantor or, as between the Guarantor and the Trustee, the obligations of the Guarantor to the Trustee, nor shall anything herein or therein prevent the Trustee or the Holders from exercising all remedies otherwise permitted by law upon default under this Indenture, subject to the rights, if any, under the Guarantee Subordination Sections of the holders of Senior Indebtedness of the Guarantor in respect of cash, property and securities of the Guarantor received upon the exercise of any such remedy.  Upon distribution of assets of the Guarantor referred to in the Guarantee Subordination Sections, the Trustee, subject to the provisions of Section 7.01 hereof, and the Holders shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Guarantor and other indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to the Guarantee Subordination Sections.  The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Guarantor.  Nothing contained in the Guarantee Subordination Sections or elsewhere in this Indenture, or in any of the Securities, shall prevent the application by the Trustee of any moneys which were deposited with it hereunder, prior to its receipt of written notice of facts which would prohibit such application, for the purpose of the payment of Guaranteed Securities Obligations unless, prior to the date on which such application is made by the Trustee, the Trustee shall be charged with notice under Section 15.06(c) hereof of the facts which would prohibit the making of such application.

 

(b)  The provisions of the Guarantee Subordination Sections shall not be applicable to the rights of the Trustee under Section 7.06 hereof or to any cash, properties or securities received by the Trustee or by any Holder when received as a holder of Senior Indebtedness of the Guarantor and nothing in this Indenture shall deprive the Trustee or such Holder of any of its rights as such holder.

 

(c)  The Guarantor shall give prompt written notice to the Trustee of any fact known to the Guarantor which would prohibit the making of any payment of money to or by the Trustee in respect of the Securities pursuant to the provisions of the Guarantee Subordination Sections.  The Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled to assume that no such fact exists unless the Guarantor or any holder of Senior Indebtedness of the Guarantor or any

 

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trustee therefor has given such notice to the Trustee.  Notwithstanding the provisions of the Guarantee Subordination Sections or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any fact which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions in the Guarantee Subordination Sections, unless, and until three Business Days after, the Trustee shall have received written notice thereof at the address designated pursuant to Section 17.03 hereof from the Guarantor or any holder or holders of Senior Indebtedness of the Guarantor or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled in all respects conclusively to assume that no such fact exists; provided that if on a date not less than three Business Days immediately preceding the date upon which by the terms hereof any such monies may become payable with respect to Guaranteed Securities Obligations, the Trustee shall not have received with respect to such monies the notice provided for in this Section 15.06(c), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.

 

The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the Guarantor (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness of the Guarantor (or a trustee on behalf of any such holder or holders).  In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Guarantor to participate in any payment or distribution pursuant to the Guarantee Subordination Sections, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness of the Guarantor held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under the Guarantee Subordination Sections, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment; nor shall the Trustee be charged with knowledge of the curing or waiving of any default of the character specified in Section 15.05 hereof or that any event or any condition preventing any payment in respect of the Securities shall have ceased to exist, unless and until the Trustee shall have received an Officer’s Certificate to such effect.

 

(d)  The provisions of this Section 15.06 applicable to the Trustee shall also apply to any paying agent for the Guarantor.

 

Section 15.07.         Reliance By Senior Indebtedness of the Guarantor On Subordination Provisions .  Each Holder of any Security by his acceptance thereof acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration for each holder of any Senior Indebtedness of the Guarantor, whether such Senior Indebtedness of the Guarantor was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness of the Guarantor, and such holder of Senior Indebtedness of the Guarantor shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness of the Guarantor.  Notice of any default in the payment of any Senior Indebtedness of the Guarantor, except as expressly stated in the Guarantee

 

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Subordination Sections, and notice of acceptance of the provisions hereof are hereby expressly waived.  Except as otherwise expressly provided herein, no waiver, forbearance or release by any holder of Senior Indebtedness of the Guarantor under such Senior Indebtedness of the Guarantor or under the Guarantee Subordination Sections shall constitute a release of any of the obligations or liabilities of the Trustee or Holders of the Securities provided in the Guarantee Subordination Sections.  Except as otherwise expressly provided herein, no right of any present or future holder of Senior Indebtedness of the Guarantor to enforce the subordination provisions hereof shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or any such holder or by any noncompliance by the Guarantor with the terms, provisions or covenants of this Indenture, regardless of any knowledge thereof which such holder may have otherwise been charged with.

 

Section 15.08.         Trustee’s Relation To Senior Indebtedness of the Guarantor .  The Trustee in its individual capacity shall be entitled to all the rights set forth in the Guarantee Subordination Sections in respect of any Senior Indebtedness of the Guarantor at any time held by it, to the same extent as any holder of Senior Indebtedness of the Guarantor, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness of the Guarantor, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in the Guarantee Subordination Sections, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Guarantor shall be read into this Indenture against the Trustee.  The Trustee shall not owe any fiduciary duty to the holders of Senior Indebtedness of the Guarantor but shall have only such obligations to such holders as are expressly set forth in the Guarantee Subordination Sections.

 

Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in the Guarantee Subordination Sections and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding up or liquidation or reorganization under any applicable bankruptcy law of the Guarantor (whether in administration, bankruptcy, insolvency or receivership proceedings or otherwise and other than in respect of a solvent reorganization or reconstruction), the timely filing of a claim for the unpaid balance of such Holder’s Securities in the form required in such proceedings and the causing of such claim to be approved.  If the Trustee does not file a claim or proof of debt in the form required in such proceedings prior to 10 days before the expiration of the time to file such claims or proofs, then the holders of Senior Indebtedness of the Guarantor, jointly, or their representative shall have the right to demand, sue for, collect, receive and receipt for the payments and distributions in respect of Guaranteed Securities Obligations which are required to be paid or delivered to the holders of Senior Indebtedness of the Guarantor as provided in the Guarantee Subordination Sections and to file and prove all claims therefor and to take all such other action in the name of the Holders or otherwise, as such holder of Senior Indebtedness of the Guarantor or representative thereof may determine to be necessary or appropriate for the enforcement of the provisions of the Guarantee Subordination Sections.

 

Section 15.09.         Other Provisions Subject Hereto .  Except as expressly stated in the Guarantee Subordination Sections, notwithstanding anything contained in this Indenture to the

 

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contrary, all the provisions of this Indenture and the Securities are subject to the provisions of the Guarantee Subordination Sections.  However, nothing in the Guarantee Subordination Sections shall apply to or adversely affect the claims of, or payment to, the Trustee pursuant to Section 7.06.

 

ARTICLE SIXTEEN

 

SUBORDINATION OF THE SECURITIES

 

Section 16.01.         Agreement To Subordinate .   The Company, for itself and its successors, and each Holder, by its acceptance of Securities, agree that the payment of the principal of and premium, if any, and interest on, if any, and any other amounts due on the Securities is subordinated in right of payment, to the extent and in the manner stated in this Article Sixteen, to the prior payment in full of all Senior Indebtedness of the Company.  Each Holder by its acceptance of the Securities authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate, as between the holders of Senior Indebtedness of the Company and such Holder, the subordination provided in this Article and appoints the Trustee as his attorney-in-fact for such purpose.  If the Trustee does not file a proper claim or proof of debt in the form required in any voluntary or involuntary dissolution, winding up, liquidation, reorganization, arrangement or similar proceedings relating to the Company prior to 30 days before the expiration of time to file such claim or claims, then any holder or holders of Senior Indebtedness of the Company or their representative or representatives are hereby authorized to and have the right to file an appropriate claim for and on behalf of the Holders.  The Securities shall be senior in right of payment and in rights upon liquidation to all Junior Subordinated Indebtedness of the Company.

 

Section 16.02.         No Payment On Securities If Senior Indebtedness of the Company In Default .  Anything in this Indenture to the contrary notwithstanding, no payment on account of the principal of and premium, if any, and interest on and other amounts due on the Securities, and no redemption, repurchase, or repayment of the Securities, shall be made by or on behalf of the Company (i) unless full payment of amounts then due for principal, sinking funds and interest and of all other amounts then due on all Senior Indebtedness of the Company has been made or duly provided for pursuant to the terms of the instrument governing such Senior Indebtedness of the Company, (ii) if, at the time of such payment, redemption, purchase or other acquisition, or immediately after giving effect thereto, there shall exist under any Senior Indebtedness of the Company, or any agreement pursuant to which any Senior Indebtedness of the Company is issued, any default, which default shall not have been cured or waived and which default shall have resulted in the full amount of such Senior Indebtedness of the Company being declared due and payable or (iii) if, at the time of such payment, redemption, purchase or other acquisition, the Trustee shall have received written notice from the holder or holders of any Senior Indebtedness of the Company or their representative or representatives (a “Payment Blockage Notice”) that there exists under such Senior Indebtedness of the Company, or any agreement pursuant to which such Senior Indebtedness of the Company is issued, any default, which default shall not have been cured or waived, permitting the holders thereof to declare the full amount of such Senior Indebtedness of the Company due and payable, but only for the period (the “Payment Blockage Period”) commencing on the date of receipt of the Payment Blockage Notice and ending (unless earlier terminated by notice given to the Trustee by the holders of such Senior Indebtedness of the Company) on the earlier of (A) the date on which such event of default shall have been cured

 

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or waived or (B) 180 days from the receipt of the Payment Blockage Notice.  Upon termination of a Payment Blockage Period, payments on account of principal of, and premium, if any, and interest, if any, on, or any other amounts payable with respect to the Securities (other than amounts due and payable by reason of the acceleration of the maturity of the Securities) and redemptions, purchases or other acquisitions may be made by or on behalf of the Company.  Notwithstanding anything herein to the contrary, (A) only one Payment Blockage Notice may be given during any period of 360 consecutive days with respect to the same event of default and any other events of default on the same issue of Senior Indebtedness of the Company existing and known to the Person giving such notice at the time of such notice and (B) no new Payment Blockage Period may be commenced by the holder or holders of the same issue of Senior Indebtedness of the Company or their representative or representatives during any period of 360 consecutive days unless all events of default which were the object of the immediately preceding Payment Blockage Notice, and any other event of default on the same issue of Senior Indebtedness of the Company existing and known to the Person giving such notice at the time of such notice, have been cured or waived.  The provisions of this Section 16.02 shall not prevent a sinking fund payment (if any) in respect of Securities made with Securities properly acquired prior to the happening of such default.  In the event that, notwithstanding the provisions of this Section 16.02, payments are made by or on behalf of the Company in contravention of the provisions of this Section 16.02, such payments shall be held by the Trustee, any paying agent or the Holders, as applicable, in trust for the benefit of, and shall be paid over to and delivered to, at the written direction of, the holders of Senior Indebtedness of the Company or their representative or the trustee under the indenture or other agreement (if any), pursuant to which any instruments evidencing any Senior Indebtedness of the Company may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all Senior Indebtedness of the Company in full in accordance with the terms of such Senior Indebtedness of the Company, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness of the Company.

 

The Company shall give prompt written notice to the Trustee and any paying agent of any default under any Senior Indebtedness of the Company or under any agreement pursuant to which any Senior Indebtedness of the Company may have been issued.

 

Section 16.03.         Distribution On Acceleration Of Securities; Dissolution And Reorganization; Subrogation Of Securities .

 

(a) Upon (i) any acceleration of the principal amount due on the Securities because of an Event of Default or (ii) any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company (whether in administration, bankruptcy, insolvency, administration or receivership proceedings or upon an assignment for the benefit of creditors or any other dissolution, winding up, liquidation or reorganization of the Company and other than in respect of a solvent winding up or reconstruction):

 

(1)           the holders of all Senior Indebtedness of the Company shall first be entitled to receive payment in full of the principal thereof, the interest thereon and any other amounts due thereon before the Holders are entitled to receive payment on account of the principal of, and premium, if any, and interest, if any, on, or any other amounts due on the Securities;

 

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(2)           any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Sixteen with respect to the Securities, to the payment in full without diminution or modification by such plan of all Senior Indebtedness of the Company, to which the Holders or the Trustee would be entitled except for the provisions of this Article, shall be paid by the liquidating trustee or agent or other Person making such a payment or distribution, directly to the holders of Senior Indebtedness of the Company (or their representatives) or trustee(s) acting on their behalf, ratably according to the aggregate amounts remaining unpaid on account of the principal of and premium, if any, and interest, if any, on, and other amounts due on the Senior Indebtedness of the Company held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness of the Company remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Company; and

 

(3)           in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article with respect to the Securities, to the payment in full without diminution or modification by such plan of Senior Indebtedness of the Company, shall be received by the Trustee or the Holders before all Senior Indebtedness of the Company is paid in full, such payment or distribution shall be held in trust for the benefit of, and be paid over to, the holders of the Senior Indebtedness of the Company remaining unpaid (or their representatives) or trustee(s) acting on their behalf, ratably as aforesaid, for application to the payment of such Senior Indebtedness of the Company until all such Senior Indebtedness of the Company shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Company.

 

Subject to the payment in full of all Senior Indebtedness of the Company, the Holders shall be subrogated to the rights of the holders of Senior Indebtedness of the Company to receive payments or distributions of cash, property or securities of the Company  applicable to the Senior Indebtedness of the Company until the principal of and premium, if any, and interest, if any, on, and any other amounts payable with respect to the Securities shall be paid in full and, for purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of the Company of cash, property or securities which otherwise would have been payable or distributable to Holders shall, as between the Company, its creditors other than the holders of Senior Indebtedness of the Company, and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness of the Company, it being understood that the provisions of this Article Sixteen are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness of the Company, on the other hand.

 

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Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of and premium, if any, and interest, if any on, and any Additional Amounts with respect to the Securities as and when the same shall become due and payable in accordance with the terms of the Securities or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than holders of Senior Indebtedness of the Company or, as between the Company and the Trustee, the obligations of the Company to the Trustee, nor shall anything herein or therein prevent the Trustee or the Holders from exercising all remedies otherwise permitted by law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness of the Company in respect of cash, property and securities of the Company received upon the exercise of any such remedy.  Upon distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Section 7.01 hereof, and the Holders shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.  The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Company.  Nothing contained in this Article Sixteen or elsewhere in this Indenture, or in any of the Securities, shall prevent the application by the Trustee of any moneys which were deposited with it hereunder, prior to its receipt of written notice of facts which would prohibit such application, for the purpose of the payment of or on account of the principal of and any premium, if any, and interest, if any, on, or any Additional Amounts with respect to the Securities unless, prior to the date on which such application is made by the Trustee, the Trustee shall be charged with notice under Section 16.03(c) hereof of the facts which would prohibit the making of such application.

 

(b)  The provisions of this Article shall not be applicable to any cash, properties or securities received by the Trustee or by any Holder when received as a holder of Senior Indebtedness of the Company and nothing in this Indenture shall deprive the Trustee or such Holder of any of its rights as such holder.

 

(c)  The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment of money to or by the Trustee in respect of the Securities pursuant to the provisions of this Article.  The Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled to assume that no such fact exists unless the Company or any holder of Senior Indebtedness of the Company or any trustee therefor has given such notice to the Trustee.  Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any fact which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions in this Article, unless, and until three Business Days after, the Trustee shall have received written notice thereof at the address designated pursuant to Section 17.03 hereof from the Company or any holder or holders of Senior Indebtedness of the Company or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01 hereof, shall be entitled in all respects conclusively to assume that no such fact exists; provided that if on a date not less than three Business Days

 

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immediately preceding the date upon which by the terms hereof any such monies may become payable for any purpose including, without limitation, the principal of, and premium, if any, and interest, if any, on, and any Additional Amounts with respect to any Security, and any amounts immediately due and payable upon the execution of any instrument acknowledging satisfaction and discharge of this Indenture, as provided in Article Four hereof), the Trustee shall not have received with respect to such monies the notice provided for in this Section 16.03(c), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.

 

The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the Company (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness of the Company (or a trustee on behalf of any such holder or holders).  In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Company to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness of the Company held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment; nor shall the Trustee be charged with knowledge of the curing or waiving of any default of the character specified in Section 16.02 hereof or that any event or any condition preventing any payment in respect of the Securities shall have ceased to exist, unless and until the Trustee shall have received an Officer’s Certificate to such effect.

 

(d)  The provisions of this Section 16.03 applicable to the Trustee shall also apply to any paying agent for the Company.

 

Section 16.04.         Reliance By Senior Indebtedness of the Company On Subordination Provisions .  Each Holder of any Security by his acceptance thereof acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration for each holder of any Senior Indebtedness of the Company, whether such Senior Indebtedness of the Company was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness of the Company, and such holder of Senior Indebtedness of the Company shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness of the Company.  Notice of any default in the payment of any Senior Indebtedness of the Company, except as expressly stated in this Article, and notice of acceptance of the provisions hereof are hereby expressly waived.  Except as otherwise expressly provided herein, no waiver, forbearance or release by any holder of Senior Indebtedness of the Company under such Senior Indebtedness of the Company or under this Article shall constitute a release of any of the obligations or liabilities of the Trustee or Holders of the Securities provided in this Article.  Except as otherwise expressly provided herein, no right of any present or future holder of Senior Indebtedness of the Company to enforce the subordination provisions

 

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hereof shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any such holder or by any noncompliance by the Company with the terms, provisions or covenants of this Indenture, regardless of any knowledge thereof which such holder may have otherwise been charged with.

 

Section 16.05.         Trustee’s Relation To Senior Indebtedness of the Company .  The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article in respect of any Senior Indebtedness of the Company at any time held by it, to the same extent as any holder of Senior Indebtedness of the Company, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Company shall be read into this Indenture against the Trustee.  The Trustee shall not owe any fiduciary duty to the holders of Senior Indebtedness of the Company but shall have only such obligations to such holders as are expressly set forth in this Article.

 

Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding up or liquidation or reorganization under any applicable bankruptcy law of the Company (whether in administration, bankruptcy, insolvency or receivership proceedings or otherwise and other than in respect of a solvent reorganization or reconstruction), the timely filing of a claim for the unpaid balance of such Holder’s Securities in the form required in such proceedings and the causing of such claim to be approved.  If the Trustee does not file a claim or proof of debt in the form required in such proceedings prior to 10 days before the expiration of the time to file such claims or proofs, then the holders of Senior Indebtedness of the Company, jointly, or their representative shall have the right to demand, sue for, collect, receive and receipt for the payments and distributions in respect of the Securities which are required to be paid or delivered to the holders of Senior Indebtedness of the Company as provided in this Article and to file and prove all claims therefor and to take all such other action in the name of the Holders or otherwise, as such holder of Senior Indebtedness of the Company or representative thereof may determine to be necessary or appropriate for the enforcement of the provisions of this Article.

 

Section 16.06.         Other Provisions Subject Hereto .  Except as expressly stated in this Article, notwithstanding anything contained in this Indenture to the contrary, all the provisions of this Indenture and the Securities are subject to the provisions of this Article.  However, nothing in this Article shall apply to or adversely affect the claims of, or payment to, the Trustee pursuant to Section 7.06.

 

ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS

 

Section 17.01.         Benefits of Indenture .   Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or

 

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corporation, other than the parties hereto and their successors and the Holders of the Securities and, to the extent set forth in Article Sixteen, holders of Senior Indebtedness of the Company and, to the extent set forth in the Subordination Provisions, holders of Senior Indebtedness of the Guarantor,  any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors, holders of Senior Indebtedness of the Company and holders of Senior Indebtedness of the Guarantor, if applicable, and of the Holders of the Securities.

 

Section 17.02.         Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.

 

Section 17.03.         Addresses for Notices, etc . Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee), as follows:  if to the Company, Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention:  Treasurer; and if to the Guarantor, Aon plc, 122 Leadenhall Street, London, England, Attention: Treasurer.  Any notice, direction, request or demand by the Company or the Guarantor, or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing.  If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its reasonable discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling, absent gross negligence or manifest error. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s prior reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of any such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Section 17.04.         Evidence of Compliance with Conditions Precedent . Upon any application or demand by the Company  or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate or Officers’ Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such

 

74


 

counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he 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 (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous.  Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.

 

Section 17.05.         Legal Holidays .  Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.

 

Section 17.06.         Trust Indenture Act to Control .  If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this

 

75


 

Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.

 

Section 17.07.         Execution in Counterparts .  This 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.

 

Section 17.08.         New York Contract .  This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State; provided however, that the provisions of the Guarantee Subordination Sections and any non-contractual obligations of the Guarantor arising out of or in connection with the Guarantee Subordination Sections, shall be governed by the laws of England and Wales (other than the appointment of any attorney-in-fact, which shall be governed by the laws of the State of New York).

 

Section 17.09.         Consent to Service . The Guarantor has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the Securities of any series to which the provisions of Article Fifteen shall apply brought in any federal or state court sitting in the Borough of Manhattan in The City of New York. By the execution and delivery of this Indenture, the Guarantor irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Guarantor, shall be deemed in every respect effective service of process upon the Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any Securities to which the provisions of Article Fifteen shall apply shall be Outstanding.

 

Section 17.10.         Separability .  In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

 

Section 17.11.         Assignment .  The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations.  Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns.  This Indenture may not otherwise be assigned by the parties hereto.

 

Section 17.12.         Waiver of Jury Trial .  EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE

 

76


 

FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 17.13.         Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.

 

Section 17.14.         Judgment Currency . The Company and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:

 

(a)           if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, The City of New York, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, The City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, The City of New York preceding the day on which a final unappealable judgment is entered; and

 

(b)           their obligations under this Indenture to make payments in the Required Currency:

 

(1)           shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments;

 

(2)           shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and

 

(3)           shall not be affected by judgment being obtained for any other sum due under this Indenture.

 

77


 

Section 17.15.         Tax Witholding. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 17.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company agrees (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Company’s possession (or, to the extent not in the Company’s possession, can be obtained through commercially reasonable efforts of the Company) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Company, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability.  The terms of this Section shall survive the termination of this Indenture.

 

78


 

IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.

 

 

 

Aon Corporation

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

[Name]

 

 

 

[Title]

 

 

 

 

 

 

 

 

 

 

Aon plc

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

[Name]

 

 

 

[Title]

 

 

 

 

 

 

 

 

 

 

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

[Name]

 

 

 

[Title]

 

79


 

Annex A

 

NOTATION OF GUARANTEE

 

For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

 

 

Aon plc

 

 

 

 

 

 

By:

 

 

 

[Name]

 

 

[Title]

 



Exhibit 5.1

 

SIDLEY AUSTIN LLP

WOOLGATE EXCHANGE

25 BASINGHALL STREET

LONDON EC2V 5HA

DX NUMBER 580 LONDON CITY

+44 20 7360 3600

+44 20 7626 7937 FAX

BEIJING

BOSTON

BRUSSELS

CENTURY CITY

CHICAGO

DALLAS

GENEVA

HONG KONG

HOUSTON

LONDON

LOS ANGELES

NEW YORK

PALO ALTO

SAN FRANCISCO

SHANGHAI

SINGAPORE

SYDNEY

TOKYO

WASHINGTON, D.C.

 

 

 

 

 

Your Ref:

Our Ref: DH/SWO/12286/12510

 

The Directors

Aon plc

8 Devonshire Square

London

EC2M 4PL

 

3 September 2015

 

Dear Sirs

 

Registration Statement on Form S-3; Aon Plc (the “Company”) dated 3 September 2015 (the “Registration Statement”)

 

1.                                       INTRODUCTION

 

In our capacity as English law advisers to the Company, we have been asked to give an opinion on certain matters relating to the Company.

 

We are giving this opinion in connection with the Registration Statement (the “ Registration Statement ”) to be filed under the United States Securities Act of 1933, as amended (the “ Securities Act ”), with the United States Securities and Exchange Commission (the “ SEC ”).

 

The Registration Statement relates to the registration for issuance, offering, sale and delivery from time to time of, amongst other securities, Class A Ordinary Shares of the Company (nominal value U.S.$0.01 per share), preference shares of the Company and securities which are convertible into Class A Ordinary Shares or preference shares of the Company, as determined by the directors of the Company in accordance with the articles of association of the Company (together, the “ New Shares ”).

 

We have been asked by the Company to give this opinion and have taken instructions in this regard solely from the Company.

 

2.                                       SCOPE

 

This letter is limited to English law as applied by the English courts as at the date of this letter and shall be governed by and construed in accordance with English law. We have made no investigation of the laws of any jurisdiction other than those of England

 

Sidley Austin LLP is a limited liability partnership formed and registered under the laws of the
State of Delaware.  The offices listed above (other than London) are offices of associated Sidley Austin partnerships.

A list of names of partners in the partnership is available at Woolgate Exchange 25 Basinghall Street, London, EC2V 5HA.

Authorised and regulated by the Solicitors Regulation Authority under number 79075.

 


 

and we do not express or imply any opinion as to the laws of any jurisdiction other than those of England. We do not express any opinion on European Community law as it affects any jurisdiction other than England. In particular:

 

(a)                                  by giving this opinion, we do not assume any obligation to notify you of future changes in law which may affect the opinions expressed in this opinion, or otherwise to update this opinion in any respect;

 

(b)                                  to the extent that the laws of any other jurisdiction may be relevant, our opinion is subject to the effect of such laws;

 

(c)                                   we express no opinion as to whether the Registration Statement contains all the information required by applicable law and/or regulation; and

 

(d)                                  we have not been responsible for verifying whether statements of fact (including foreign law), opinion or intention in any documents referred to in this opinion or in any related documents are accurate, complete or reasonable.

 

The opinion in this letter is limited to the matters stated herein and does not extend to, and is not to be read as extending by implication to, any other matter.

 

3.                                       DOCUMENTS

 

For the purpose of giving this opinion we have examined the following documents:

 

(a)                                  a certificate addressed to us from Matthew M. Rice, the Assistant Company Secretary of the Company, dated 3 September 2015 and the documents annexed thereto (the “ Certificate ”);

 

(b)                                  a copy of the current articles of association of the Company, in the form attached to the Certificate (the “ Articles ”);

 

(c)                                   a copy of shareholder resolutions numbered 9 and 10 passed at the annual general meeting of the Company held on 17 June 2015, in the form attached to the Certificate (the “ Shareholder Resolutions ”);

 

(d)                                  a copy of the extract of the minutes of a meeting of the Board of Directors of the Company (the “ Board ”) duly convened and held on 17 June 2015, in the form attached to the Certificate (the “ Board Resolutions ”); and

 

(e)                                   the results of the search (carried out by us or by RM Online Limited on our behalf) on 2 September 2015 (and updated on 3 September 2015) of the public records of the Company on file and available for inspection by the public at the Companies Registry (the “ Company Search ”).

 

We have also made an enquiry by telephone of the Central Index of Winding-Up and Administration Petitions in respect of the Company on 3 September 2015 at 11.55 am (London time) (the “ Winding-Up Enquiry ”).

 

Except as noted above, we have not made any enquiries or searches concerning the Company or examined any contracts or other documents entered into by or affecting the Company.

 

2


 

4.                                       ASSUMPTIONS

 

For the purpose of this opinion and in considering the documents listed in paragraph 3 above we have (with your consent and without any further enquiry) assumed:

 

(a)                                  the genuineness of all signatures, stamps and seals on, and the authenticity, accuracy and completeness of, all documents submitted to us whether as originals or copies;

 

(b)                                  the conformity to originals of all documents supplied to us as photocopies, portable document format (PDF) copies, facsimile copies or e-mail versions;

 

(c)                                   that any signatures and seals on the documents reviewed by us are genuine, were duly applied to the relevant documents and where necessary were properly witnessed;

 

(d)                                  that each of the statements contained in the Certificate is true and correct as at the date of this opinion;

 

(e)                                   any allotment and issue of New Shares will be duly made in accordance with the Articles;

 

(f)                                    that the Shareholder Resolutions were duly passed in accordance with the articles of association of the Company as in force at such time and will not be revoked or varied prior to the date(s) of any allotment and issue of New Shares;

 

(g)                                   that the Board Resolutions were duly passed in accordance with the articles of association of the Company as in force at such time and will not be revoked or varied prior to the date(s) of any allotment and issue of New Shares;

 

(h)                                  that any delegation by the Board of any of its powers in relation to the allotment and issue of the New Shares will not be revoked or varied prior to the date(s) of any allotment and issue of New Shares;

 

(i)                                      that any allotment and issue will be in accordance with, and within any limitations imposed in, the Board Resolutions;

 

(j)                                     that as at the date(s) of any allotment and issue of New Shares the authority granted pursuant to Resolution 9 of the Shareholders Resolutions to, in accordance with section 551 of the Companies Act 2006 (the “ Act ”), allot shares in the Company and the power granted pursuant to Resolution 10 of the Shareholders Resolutions, disapplying section 561 of the Act for the purpose of certain of such allotments, will remain in full force and effect and unutilised to the extent necessary to permit any allotment and issue of New Shares free from pre-emption;

 

(k)                                  that the information revealed by the Company Search (i) was accurate in all respects and has not since the time of such searches been altered and (ii) was complete and included all relevant information which had been properly submitted to the Registrar of Companies;

 

3


 

(l)                                      that the information revealed by the Winding-Up Enquiry was accurate in all respects and has not since the time of such enquiry been altered;

 

(m)                              that (i) the directors of the Company, in authorising (A) the allotment and issue of the New Shares or the (B) the delegation of any power to any person in relation to the allotment and issue of the New Shares and (ii) any such person to whom such power has been delegated, will, in relation to the allotment and issue of the New Shares and in each case, exercise their powers in accordance with their duties under all applicable laws and the Articles;

 

(n)                                  as of the date of this opinion and at the time of any allotment and issue of New Shares, the Company has not passed a voluntary winding-up resolution, no petition has been presented or order made by a court for the winding-up or dissolution of the Company, no application has been presented or order made by a court for the administration of the Company, no documents have been filed with the court for the appointment of an administrator in respect of the Company nor has any notice of intention to appoint an administrator been given in respect of the Company and no receiver, trustee, administrator, administrative receiver, liquidator or similar office-holder has been appointed in any jurisdiction in relation to the Company or any of its assets or revenues;

 

(o)                                  the consideration for the allotment and issue of New Shares will be in cash and will not be less than the par value of New Shares;

 

(p)                                  New Shares will have been, on allotment and issue, fully paid up to the aggregate total of their nominal value and any premium thereon in cash in accordance with the Companies Act 2006;

 

(q)                                  the name of the relevant allottee and the number of New Shares allotted will be duly entered in the register of members of the Company; and

 

(r)                                     the Articles will not be amended at any time, or in any manner, which is relevant for the purposes of this opinion.

 

5.                                       OPINION

 

Based upon and subject to the assumptions and qualifications set out in this opinion and having regard to such legal considerations as we have deemed relevant, we are of the opinion that, when New Shares are allotted and issued in conformity with the Articles, and so as not to violate any applicable law, and upon full payment of the agreed upon cash consideration therefor as contemplated by the Registration Statement and the receipt of such cash consideration by the Company, such New Shares will be validly issued, fully paid and non-assessable.

 

The term “non-assessable” has no recognised meaning in English law but, for the purposes of this opinion, the term means that, under the Act, the Articles and any resolution taken under the Articles approving the issue of New Shares, no holder of such New Share is liable, solely because of such holder’s status as a holder of such New Share, to pay any additional amounts to the Company or its creditors.

 

4


 

6.                                       QUALIFICATIONS

 

Our opinion is subject to the qualifications set out below.

 

(a)                                  The authority to allot shares and the power to disapply pre-emption rights in respect of certain allotments pursuant to such authority, as contained in the Shareholders Resolutions, both expire at the end of the next annual general meeting of the Company (or, if earlier, at the close of business on 31 August 2016).  This opinion is limited to allotments of New Shares validly effected before such expiry.

 

(b)                                  The Company Search is not capable of revealing conclusively whether or not:

 

(i)                                      a winding-up order has been made or a resolution passed for the winding up of a company; or

 

(ii)                                   an administration order has been made; or

 

(iii)                                a receiver, administrative receiver, administrator or liquidator has been appointed; or

 

(iv)                               a court order has been made under the Cross Border Insolvency Regulations 2006,

 

since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the public microfiche of the relevant company immediately.

 

In addition, the Company Search is not capable of revealing, prior to the making of the relevant order or the appointment of an administrator otherwise taking effect, whether or not a winding-up petition or an application for an administration order has been presented or notice of intention to appoint an administrator under paragraphs 14 or 22 of Schedule B1 to the Insolvency Act 1986 has been filed with the court.

 

(c)                                   The Winding-up Enquiry relates only to the presentation of: (i) a petition for the making of a winding-up order or the making of a winding-up order by the Court, (ii) an application to the High Court of Justice in London for the making of an administration order and the making by such court of an administration order, and (iii) a notice of intention to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention or notice of appointment has been presented or winding-up or administration order granted, because:

 

(i)                                      details of a winding-up petition or application for an administration order may not have been entered on the records of the Central Registry of Winding-up Petitions immediately;

 

(ii)                                   in the case of an application for the making of an administration order and such order and the presentation of a notice of intention to appoint

 

5


 

or notice of appointment, if such application is made to, order made by or notice filed with, a Court other than the High Court of Justice in London, no record of such application, order or notice will be kept by the Central Registry of Winding-up Petitions;

 

(iii)                                a winding-up order or administration order may be made before the relevant petition or application has been entered on the records of the Central Registry of Winding-up Petitions, and the making of such order may not have been entered on the records immediately;

 

(iv)                               details of a notice of intention to appoint an administrator or a notice of appointment of an administrator under paragraphs 14 and 22 of Schedule B1 of the Insolvency Act 1986 may not be entered on the records immediately (or, in the case of a notice of intention to appoint, at all); and

 

(v)                                  with regard to winding-up petitions, the Central Registry of Winding-up Petitions may not have records of winding-up petitions issued prior to1994.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement filed by the Company and to the use of this firm’s name in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the SEC issued thereunder.

 

Yours faithfully

 

 

/s/ Sidley Austin LLP

 

6



Exhibit 5.2

 

 

SIDLEY AUSTIN LLP

787 SEVENTH AVENUE

NEW YORK, NY 10019

(212) 839 5300

(212) 839 5599 FAX

BEIJING
BOSTON
BRUSSELS
CENTURY CITY
CHICAGO
DALLAS
GENEVA

HONG KONG
HOUSTON
LONDON
LOS ANGELES
NEW YORK
PALO ALTO
SAN FRANCISCO

SHANGHAI
SINGAPORE
SYDNEY
TOKYO
WASHINGTON, D.C.

 

 

 

 

 

 

 

 

 

FOUNDED 1866

 

 

 

September 3, 2015

 

Aon plc

122 Leadenhall Street

London, England EC3V 4AN

 

Aon Corporation

200 East Randolph Street

Chicago, Illinois 60601

 

Re:                              Aon plc and Aon Corporation

Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

We refer to the Registration Statement on Form S-3 (the “ Registration Statement ”) being filed by Aon plc, a corporation organized under the laws of England and Wales (“ Aon plc ”), and Aon Corporation, a company organized under the laws of the State of Delaware (“ Aon Corporation ,” and together with Aon plc, the “ Issuers ”), with the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the registration of an unlimited amount of:

 

(i)                                      unsecured debt securities of Aon plc, which may be unsecured senior debt securities (the “ Aon plc Senior Debt Securities ”) and/or unsecured subordinated debt securities (the “ Aon plc Subordinated Debt Securities ,” and together with the Aon plc Senior Debt Securities, the “ Aon plc Debt Securities ”);

 

(ii)                                   unsecured debt securities of Aon Corporation, which may be unsecured senior debt securities (the “ Aon Corporation Senior Debt Securities ”) and/or unsecured subordinated debt securities (the “ Aon Corporation Subordinated Debt Securities ,” and together with the Aon Corporation Senior Debt Securities, the “ Aon Corporation Debt Securities ,” and the Aon Corporation Debt Securities, together with the Aon plc Debt Securities, the “ Debt Securities ”);

 

(iii)                                guarantees of the Aon plc Senior Debt Securities by Aon Corporation (the “ Aon plc Senior Debt Securities Guarantees ”) and guarantees of the Aon plc Subordinated Debt Securities by Aon Corporation (the “ Aon plc Subordinated Debt Securities Guarantees ,” and together with the Aon plc Senior Debt Securities Guarantees, the “ Aon plc Debt Securities Guarantees ”);

 


 

(iv)                               guarantees of the Aon Corporation Senior Debt Securities by Aon plc (the “ Aon Corporation Senior Debt Securities Guarantees ”) and guarantees of the Aon Corporation Subordinated Debt Securities by Aon plc (the “ Aon Corporation Subordinated Debt Securities Guarantees ,” and together with the Aon Corporation Senior Debt Securities Guarantees, the “ Aon Corporation Debt Securities Guarantees ,” and the Aon Corporation Debt Securities Guarantees, together with the Aon plc Debt Securities Guarantees, the “ Guarantees ”);

 

(v)                                  share purchase contracts of Aon plc (the “ Share Purchase Contracts ”), obligating the holders thereof to purchase from Aon plc and Aon plc to sell to such holders, a specified number of Class A Ordinary Shares of Aon plc (“ Aon plc Class A Ordinary Shares ”); and

 

(vi)                               share purchase units of Aon plc (the “ Share Purchase Units ”), each representing ownership of a Share Purchase Contract and one or more other securities, including Aon plc Debt Securities, preference shares of Aon plc (the “ Aon plc Preference Shares ”), Aon Corporation Debt Securities or debt obligations of third parties other than Aon plc or Aon Corporation.

 

The Debt Securities, the Guarantees, the Share Purchase Contracts and the Share Purchase Units are collectively referred to herein as the “ Securities .” You have provided us with a draft of the Registration Statement in the form in which it will be filed, which includes a form of prospectus (the “ Prospectus ”).  The Prospectus provides that it will be supplemented in the future by one or more supplements to the Prospectus (each, a “ Prospectus Supplement ”).

 

Unless otherwise specified in the applicable Prospectus Supplement:

 

(1)                                  Aon plc Senior Debt Securities will be issued under one or more senior indentures (each, an “ Aon plc Senior Indenture ”) to be entered into among Aon plc, as issuer, Aon Corporation, as guarantor, and a trustee (the “ Aon plc Senior Trustee ”);

 

(2)                                  Aon plc Subordinated Debt Securities will be issued under one or more subordinated indentures (each, an “ Aon plc Subordinated Indenture ,” and together with each Aon plc Senior Indenture, the “ Aon plc Indentures ”) to be entered into among Aon plc, as issuer, Aon Corporation, as guarantor, and a trustee (the “ Aon plc Subordinated Trustee ,” and together with the Aon plc Senior Trustee, the “ Aon plc Trustees ”);

 

(3)                                  Aon Corporation Senior Debt Securities will be issued under one or more senior indentures (each, an “ Aon Corporation Senior Indenture ”) to be entered into among Aon Corporation, as issuer, Aon plc, as guarantor, and a trustee (the “ Aon Corporation Senior Trustee ”);

 

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(4)                                  Aon Corporation Subordinated Debt Securities will be issued under one or more subordinated indentures (each, an “ Aon Corporation Subordinated Indenture ,” and together with each Aon Corporation Senior Indenture, the “ Aon Corporation Indentures ”) to be entered into among Aon Corporation, as issuer, Aon plc, as guarantor, and a trustee (the “ Aon Corporation Subordinated Trustee ,” and together with the Aon Corporation Trustee, the “ Aon Corporation Trustees ”); and

 

(5)                                  the Share Purchase Contracts will be issued under a share purchase contract (the “ Share Purchase Contract Agreement ”) between Aon plc and a purchase contract agent (the “ Share Purchase Contract Agent ”);

 

in each case substantially in the form that has been or will be filed as an exhibit to the Registration Statement.

 

This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

 

We have examined the Registration Statement, the Prospectus and the exhibits to the Registration Statement.  We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Issuers and others, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter.  We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts  relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Issuers.

 

Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:

 

1.                                       The Aon plc Senior Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of Aon plc when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Aon plc Senior Indenture (including any necessary supplemental indenture) shall have been qualified under the Trust Indenture Act of 1939 (the “ TIA ”); (ii) the Prospectus Supplement with respect to such series of Aon plc Senior Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the

 

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rules and regulations thereunder; (iii) the Aon plc Senior Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by Aon plc to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Aon plc Senior Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon plc Senior Debt Securities and the Aon plc Senior Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon plc Senior Debt Securities as contemplated by the Aon plc Senior Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon plc Senior Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, Aon plc, Aon Corporation and the Aon plc Senior Trustee or, in the case of such an officers’ certificate, duly authorized officers of Aon plc, in each case in accordance with the Articles of Association of Aon plc (the “ Aon plc Articles of Association ”), final resolutions of the board of directors of Aon plc or a duly authorized committee thereof (“ Aon plc Board Resolutions ”) and the Aon plc Senior Indenture; and (vi) the certificates evidencing the Aon plc Senior Debt Securities of such series shall have been duly executed and delivered by Aon plc, authenticated by the Aon plc Senior Trustee and issued, all in accordance with the Aon plc Articles of Association, the applicable Aon plc Board Resolutions, the Aon plc Senior Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Aon plc Senior Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.

 

2.                                       The Aon plc Subordinated Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of Aon plc when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Aon plc Subordinated Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) the Prospectus Supplement with respect to such series of Aon plc Subordinated Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Aon plc Subordinated Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by Aon plc to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Aon plc Subordinated Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon plc Subordinated Debt Securities and the Aon plc Subordinated Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon plc Subordinated Debt

 

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Securities as contemplated by the Aon plc Subordinated Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon plc Subordinated Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, Aon plc, Aon Corporation and the Aon plc Subordinated Trustee or, in the case of such an officers’ certificate, duly authorized officers of Aon plc, in each case in accordance with the Aon plc Articles of Association, the applicable Aon plc Board Resolutions and the Aon plc Subordinated Indenture; and (vi) the certificates evidencing the Aon plc Subordinated Debt Securities of such series shall have been duly executed and delivered by Aon plc, authenticated by the Aon plc Subordinated Trustee and issued, all in accordance with the Aon plc Articles of Association, the applicable Aon plc Board Resolutions, the Aon plc Subordinated Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Aon plc Subordinated Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.

 

3.                                       The Aon Corporation Senior Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of Aon Corporation when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Aon Corporation Senior Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) the Prospectus Supplement with respect to such series of Aon Corporation Senior Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Aon Corporation Senior Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by Aon Corporation to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Aon Corporation Senior Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon Corporation Senior Debt Securities and the Aon Corporation Senior Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon Corporation Senior Debt Securities as contemplated by the Aon Corporation Senior Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon Corporation Senior Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, Aon Corporation, Aon plc and the Aon Corporation Senior Trustee or, in the case of such an officers’ certificate, duly authorized officers of Aon Corporation, in each case in accordance with the Amended and Restated Certificate of Incorporation of Aon Corporation (the “ Aon Corporation Certificate of Incorporation ”), the by-laws of Aon Corporation (the “ Aon Corporation By-Laws ”), final resolutions of the board of

 

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directors of Aon Corporation or a duly authorized committee thereof (“ Aon Corporation Board Resolutions ”) and the Aon Corporation Senior Indenture; and (vi) the certificates evidencing the Aon Corporation Senior Debt Securities of such series shall have been duly executed and delivered by Aon Corporation, authenticated by the Aon Corporation Senior Trustee and issued, all in accordance with the Aon Corporation Certificate of Incorporation, the Aon Corporation By-Laws, the applicable Aon Corporation Board Resolutions, the Aon Corporation Senior Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Aon Corporation Senior Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.

 

4.                                       The Aon Corporation Subordinated Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of Aon Corporation when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Aon Corporation Subordinated Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) the Prospectus Supplement with respect to such series of Aon Corporation Subordinated Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Aon Corporation Subordinated Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by Aon Corporation to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Aon Corporation Subordinated Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon Corporation Subordinated Debt Securities and the Aon Corporation Subordinated Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon Corporation Subordinated Debt Securities as contemplated by the Aon Corporation Subordinated Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon Corporation Subordinated Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, Aon Corporation, Aon plc and the Aon Corporation Subordinated Trustee or, in the case of such an officers’ certificate, duly authorized officers of Aon Corporation, in each case in accordance with the Aon Corporation Certificate of Incorporation, Aon Corporation By-Laws, the applicable Aon Corporation Board Resolutions and the Aon Corporation Subordinated Indenture; and (vi) the certificates evidencing the Aon Corporation Subordinated Debt Securities of such series shall have been duly executed and delivered by Aon Corporation, authenticated by the Aon Corporation Subordinated Trustee and issued, all in accordance with the Aon Corporation Certificate of Incorporation, the Aon Corporation By-Laws, the applicable Aon Corporation Board Resolutions, the Aon Corporation Subordinated Indenture and the

 

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supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Aon Corporation Subordinated Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.

 

5.                                       Each Aon Corporation Debt Securities Guarantee will constitute a validly issued and binding obligation of Aon plc when:  (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the applicable Aon Corporation Indenture shall have been qualified under the TIA; (ii) the Prospectus Supplement with respect to the Aon Corporation Debt Securities Guarantee and the series of Aon Corporation Debt Securities to which such Aon Corporation Debt Securities Guarantee relates shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the applicable Aon Corporation Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by Aon Corporation to authorize the form, terms, execution, delivery, performance, issuance and sale of such Aon Corporation Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon Corporation Debt Securities and Aon Corporation Debt Securities Guarantee and the applicable Aon Corporation Indenture; (v) all necessary corporate action shall have been taken by Aon plc to authorize the form, terms, execution, delivery, performance, issuance and sale of such Aon Corporation Debt Securities Guarantee as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon Corporation Debt Securities and Aon Corporation Debt Securities Guarantee and the applicable Aon Corporation Indenture; (vi) the certificates evidencing the Aon Corporation Debt Securities of such series to which such Aon Corporation Debt Securities Guarantee relates shall have been duly executed and delivered by Aon Corporation, authenticated by the applicable Aon Corporation Trustee and issued, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers of such Aon Corporation Debt Securities and Aon Corporation Debt Securities Guarantee against payment of the agreed consideration therefor; and (vii) the notation of guarantee evidencing the Aon Corporation Debt Securities Guarantee shall have been duly executed and delivered by Aon plc, and issued, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers of such Aon Corporation Debt Securities and Aon Corporation Debt Securities Guarantee against payment of the agreed consideration therefor.

 

6.                                       Each Aon plc Debt Securities Guarantee will constitute a validly issued and binding obligation of Aon Corporation when:  (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the

 

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Securities Act and the applicable Aon plc Indenture shall have been qualified under the TIA; (ii) the Prospectus Supplement with respect to the Aon plc Debt Securities Guarantee and the series of Aon plc Debt Securities to which such Aon plc Debt Securities Guarantee relates shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the applicable Aon plc Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by Aon plc to authorize the form, terms, execution, delivery, performance, issuance and sale of such Aon plc Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon plc Debt Securities and Aon plc Debt Securities Guarantee and the applicable Aon plc Indenture; (v) all necessary corporate action shall have been taken by Aon Corporation to authorize the form, terms, execution, delivery, performance, issuance and sale of such Aon plc Debt Securities Guarantee as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Aon plc Debt Securities and Aon plc Debt Securities Guarantee and the applicable Aon plc Indenture; (vi) the certificates evidencing the Aon plc Debt Securities of such series to which such Aon plc Debt Securities Guarantee relates shall have been duly executed and delivered by Aon plc, authenticated by the applicable Aon plc Trustee and issued, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers of such Aon plc Debt Securities and Aon plc Debt Securities Guarantee against payment of the agreed consideration therefor; and (vii) the notation of guarantee evidencing the Aon plc Debt Securities Guarantee shall have been duly executed and delivered by Aon Corporation, and issued, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers of such Aon plc Debt Securities and Aon plc Debt Securities Guarantee against payment of the agreed consideration therefor.

 

7.                                       The Share Purchase Contracts will constitute valid and binding obligations of Aon plc when:  (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a Prospectus Supplement with respect to such Share Purchase Contracts shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Share Purchase Contract Agreement relating to such Share Purchase Contracts shall have been duly authorized, executed and delivered by Aon plc and duly executed and delivered by the Share Purchase Contract Agent named in the Share Purchase Contract Agreement; (iv) Aon plc Board Resolutions shall have been duly adopted authorizing the execution, delivery, issuance and sale of such Share Purchase Contracts; (v) any necessary public limited company action under the laws of England and Wales in respect of the issuance and sale of such Share Purchase Contracts shall have been taken by Aon plc; and (vi) certificates representing such Share Purchase Contracts shall have been duly executed, countersigned and registered in accordance with the

 

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Share Purchase Contract Agreement and shall have been duly delivered to the purchasers thereof in accordance with the Share Purchase Contract Agreement against payment of the agreed consideration therefor.

 

8.                                       The Share Purchase Units will constitute valid and binding obligations of Aon plc when:  (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a Prospectus Supplement with respect to such Share Purchase Units shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) Aon plc Board Resolutions have been duly adopted authorizing the execution, delivery, issuance and sale of such Share Purchase Units; (iv) if any Aon plc Debt Securities are a component of the Share Purchase Unit, the actions described in paragraph 1 or 2 above, as applicable, shall have been taken; (v)  if any Aon plc Preference Shares are a component of the Share Purchase Unit, any necessary public limited company action shall have been taken under the laws of England and Wales to authorize and approve the issuance of such Aon plc Preference Shares; (vi) if any Aon Corporation Debt Securities are a component of the Share Purchase Unit, the actions described in paragraph 3 or 4 above, as applicable, shall have been taken; (vii) if any debt obligations of a third party (other than Aon plc and Aon Corporation) are a component of the Share Purchase Unit, any necessary action shall have been taken to authorize the issuance of such debt obligations; and (viii) certificates representing such Share Purchase Units shall have been duly executed, countersigned and registered and shall have been duly delivered to the purchasers thereof in accordance with the applicable definitive purchase, underwriting or similar agreement against payment of the agreed consideration therefor.

 

Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief.  Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any Securities or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.

 

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For the purposes of this letter, we have assumed that, at the time of the issuance, sale and delivery of any of the Securities:

 

(i)                                      the Securities being offered will be issued and sold as contemplated in the Registration Statement, the Prospectus and the Prospectus Supplement relating thereto;

 

(ii)                                   the execution, delivery and performance by the applicable Issuer of the Aon plc Indentures, the Aon Corporation Indentures and each indenture supplement thereto, each Share Purchase Contract Agreement and any Securities, and the issuance sale and delivery of such Securities by such Issuer, will not (A) contravene or violate the constituent documents of such Issuer, (B) violate any law, rule or regulation applicable to such Issuer, (C) result in a default under or breach of any agreement or instrument binding upon such Issuer or any order, judgment or decree of any court or governmental authority applicable to such Issuer, or (D) require any authorization, approval or other action by, or notice to or filing with, any court or governmental authority (other than such authorizations, approvals, actions, notices or filings which shall have been obtained or made, as the case may be, and which shall be in full force and effect); and

 

(iii) the authorization thereof by the applicable Issuer will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability thereof.

 

We have further assumed that the Aon plc Indentures and the Aon Corporation Indentures and each indenture supplement thereto, each Share Purchase Contract Agreement and each of the Securities will be governed by the laws of the State of New York.

 

With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “ Instrument ”), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed and delivered by each party thereto; and (iii) except as set forth above, such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, each party thereto.

 

This opinion letter is limited to the General Corporation Law of the State of Delaware and the laws of the State of New York (excluding the securities laws of the State of New York).  We express no opinion as to the laws, rules or regulations of any other jurisdiction, including,

 

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without limitation, the federal laws of the United States of America or any state securities or blue sky laws.

 

We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

 

 

Very truly yours,

 

/s/ Sidley Austin LLP

 



Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption “Experts” in the Registration Statement Form S-3 and related Prospectus of Aon plc and to the incorporation by reference therein of our reports dated February 23, 2015, with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting of Aon plc, included in its Annual Report Form 10-K for the year ended December 31, 2014, filed with the Securities and Exchange Commission.

 

 

/s/ Ernst & Young LLP

 

 

 

Chicago, Illinois

 

 

 

September 3, 2015

 

 



Exhibit 24.1

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Gregory C. Case

 

 

Gregory C. Case

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Lester B. Knight

 

 

Lester B. Knight

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Fulvio Conti

 

 

Fulvio Conti

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Cheryl A. Francis

 

 

Cheryl A. Francis

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ James W. Leng

 

 

James W. Leng

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ J. Michael Losh

 

 

J. Michael Losh

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Robert S. Morrison

 

 

Robert S. Morrison

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Richard B. Myers

 

 

Richard B. Myers

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Richard C. Notebaert

 

 

Richard C. Notebaert

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Gloria Santona

 

 

Gloria Santona

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 


 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a director or officer of Aon plc, a public limited company incorporated under the laws of England and Wales (the “Company”), hereby severally constitutes and appoints Gregory C. Case, Christa Davies and Peter M. Lieb, and each of them, with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time by the Company of debt securities, preference shares, Class A Ordinary Shares, convertible securities, share purchase contracts, share purchase units and guarantees, any and all amendments and supplements thereto or to the prospectus contained therein (including all pre-effective and post-effective amendments) and any additional registration statement pursuant to Rule 462(b) of the Securities Act and any and all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done to the end that such Registration Statement or additional registration statement comply with the Securities Act, and the applicable rules and regulations adopted or issued pursuant thereto, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

This power of attorney shall be valid for a period of 90 days from the date specified below.

 

This power of attorney shall be governed by and construed in accordance with English law.

 

IN WITNESS WHEREOF, this power of attorney has been executed as a deed by the  undersigned and is intended to be and is hereby delivered on June 17, 2015.

 

 

Signed as a deed by:

 

 

 

 

/s/ Carolyn Y. Woo

 

 

Carolyn Y. Woo

 

In the presence of:

 

 

 

 

 

/s/ Matthew M. Rice

 

 

Signature of witness

 

 

 

 

 

Matthew M. Rice

 

 

Name of witness

 

 

 

 

 

200 East Randolph St.

 

 

 

 

 

Chicago, IL 60601

 

 

Address:

 

 

 

 

 

Attorney

 

 

Occupation:

 

 

 



Exhibit 25.1

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)      o

 

 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

 

 

95-3571558

(Jurisdiction of incorporation
if not a U.S. national bank)

 

(I.R.S. employer
identification no.)

 

400 South Hope Street
Suite 400
Los Angeles, California

 

90071

(Address of principal executive offices)

 

(Zip code)

 

 

Aon plc

(Exact name of obligor as specified in its charter)

 

England and Wales

 

98-1030901

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. employer
identification no.)

 

The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN

 

 

(Address of principal executive offices)

 

(Zip code)

 

Aon Corporation

(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

36-3051915
(I.R.S. employer
identification no.)

 

 

 

200 East Randolph Street
Chicago, Illinois
(Address of principal executive offices)

 

60601
(Zip code)

 

 

Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)

 

 

 

 

1.                                       General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

 

Comptroller of the Currency

United States Department of the Treasury

 

Washington, DC 20219

 

 

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 


 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 


 

SIGNATURE

 

Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 21st day of August, 2015.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

 

By:

/s/

Jonathan Glover

 

Name:

 

Jonathan Glover

 

Title:

 

Vice President

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 400, Los Angeles, CA 90071

 

At the close of business June 30, 2015, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

 

 

Dollar amounts

 

 

 

 

 

 

 

in thousands

 

 

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

 

 

25,706

 

Interest-bearing balances

 

 

 

 

 

215,394

 

Securities:

 

 

 

 

 

 

 

Held-to-maturity securities

 

 

 

 

 

0

 

Available-for-sale securities

 

 

 

 

 

661,987

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

 

 

Federal funds sold

 

 

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

 

 

Loans and leases held for sale

 

 

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

 

 

0

 

Trading assets

 

 

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

 

 

12,228

 

Other real estate owned

 

 

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies

 

 

 

 

 

0

 

Direct and indirect investments in real estate ventures

 

 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

856,313

 

Other intangible assets

 

 

 

 

 

90,615

 

Other assets

 

 

 

 

 

126,234

 

Total assets

 

 

 

 

 

$

1,988,477

 

 

1


 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deposits:

 

 

 

 

 

 

 

In domestic offices

 

 

 

 

 

520

 

Noninterest-bearing

 

 

 

520

 

 

 

Interest-bearing

 

 

 

0

 

 

 

Not applicable

 

 

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

 

 

Federal funds purchased

 

 

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

 

 

0

 

Trading liabilities

 

 

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

 

 

0

 

Not applicable

 

 

 

 

 

 

 

Not applicable

 

 

 

 

 

 

 

Subordinated notes and debentures

 

 

 

 

 

0

 

Other liabilities

 

 

 

 

 

279,598

 

Total liabilities

 

 

 

 

 

280,118

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

 

 

0

 

Common stock

 

 

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

 

 

1,122,352

 

Not available

 

 

 

 

 

 

 

Retained earnings

 

 

 

 

 

584,561

 

Accumulated other comprehensive income

 

 

 

 

 

446

 

Other equity capital components

 

 

 

 

 

0

 

Not available

 

 

 

 

 

 

 

Total bank equity capital

 

 

 

 

 

1,708,359

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

 

 

0

 

Total equity capital

 

 

 

 

 

1,708,359

 

Total liabilities and equity capital

 

 

 

 

 

1,988,477

 

 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty           )               CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

 

)

 

 

William D. Lindelof, Director

 

)

 

Directors (Trustees)

Alphonse J. Briand, Director

 

)

 

 

 

2



Exhibit 25.2

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)      o

 

 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

 

 

95-3571558

(Jurisdiction of incorporation
if not a U.S. national bank)

 

(I.R.S. employer
identification no.)

 

400 South Hope Street
Suite 400
Los Angeles, California

 

90071

(Address of principal executive offices)

 

(Zip code)

 

 

Aon plc

(Exact name of obligor as specified in its charter)

 

England and Wales

 

98-1030901

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. employer
identification no.)

 

The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN

 

 

(Address of principal executive offices)

 

(Zip code)

 

Aon Corporation

(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

36-3051915
(I.R.S. employer
identification no.)

 

 

 

200 East Randolph Street
Chicago, Illinois
(Address of principal executive offices)

 

60601
(Zip code)

 

 

Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture securities)

 

 

 

 

1.                                       General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

 

Comptroller of the Currency

United States Department of the Treasury

 

Washington, DC 20219

 

 

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 


 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 


 

SIGNATURE

 

Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 21st day of August, 2015.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

 

By:

/s/

Jonathan Glover

 

Name:

 

Jonathan Glover

 

Title:

 

Vice President

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 400, Los Angeles, CA 90071

 

At the close of business June 30, 2015, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

 

 

Dollar amounts

 

 

 

 

 

 

 

in thousands

 

 

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

 

 

25,706

 

Interest-bearing balances

 

 

 

 

 

215,394

 

Securities:

 

 

 

 

 

 

 

Held-to-maturity securities

 

 

 

 

 

0

 

Available-for-sale securities

 

 

 

 

 

661,987

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

 

 

Federal funds sold

 

 

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

 

 

Loans and leases held for sale

 

 

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

 

 

0

 

Trading assets

 

 

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

 

 

12,228

 

Other real estate owned

 

 

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies

 

 

 

 

 

0

 

Direct and indirect investments in real estate ventures

 

 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

856,313

 

Other intangible assets

 

 

 

 

 

90,615

 

Other assets

 

 

 

 

 

126,234

 

Total assets

 

 

 

 

 

$

1,988,477

 

 

1


 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deposits:

 

 

 

 

 

 

 

In domestic offices

 

 

 

 

 

520

 

Noninterest-bearing

 

 

 

520

 

 

 

Interest-bearing

 

 

 

0

 

 

 

Not applicable

 

 

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

 

 

Federal funds purchased

 

 

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

 

 

0

 

Trading liabilities

 

 

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

 

 

0

 

Not applicable

 

 

 

 

 

 

 

Not applicable

 

 

 

 

 

 

 

Subordinated notes and debentures

 

 

 

 

 

0

 

Other liabilities

 

 

 

 

 

279,598

 

Total liabilities

 

 

 

 

 

280,118

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

 

 

0

 

Common stock

 

 

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

 

 

1,122,352

 

Not available

 

 

 

 

 

 

 

Retained earnings

 

 

 

 

 

584,561

 

Accumulated other comprehensive income

 

 

 

 

 

446

 

Other equity capital components

 

 

 

 

 

0

 

Not available

 

 

 

 

 

 

 

Total bank equity capital

 

 

 

 

 

1,708,359

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

 

 

0

 

Total equity capital

 

 

 

 

 

1,708,359

 

Total liabilities and equity capital

 

 

 

 

 

1,988,477

 

 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty           )               CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

 

)

 

 

William D. Lindelof, Director

 

)

 

Directors (Trustees)

Alphonse J. Briand, Director

 

)

 

 

 

2



Exhibit 25.3

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)      o

 

 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

 

(Jurisdiction of incorporation
if not a U.S. national bank)

 

95-3571558
(I.R.S. employer
identification no.)

 

 

 

400 South Hope Street
Suite 400
Los Angeles, California
(Address of principal executive offices)

 

90071
(Zip code)

 

 

Aon Corporation

(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

36-3051915
(I.R.S. employer
identification no.)

 

 

 

200 East Randolph Street
Chicago, Illinois
(Address of principal executive offices)

 

60601
(Zip code)

 

Aon plc

(Exact name of obligor as specified in its charter)

 

England and Wales
(State or other jurisdiction of
incorporation or organization)

 

98-1030901
(I.R.S. employer
identification no.)

 

 

 

The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN
(Address of principal executive offices)

 

(Zip code)

 

 

Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)

 

 

 

 

1.                                       General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

 

Comptroller of the Currency

United States Department of the Treasury

 

Washington, DC 20219

 

 

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 


 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 


 

SIGNATURE

 

Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 21st day of August, 2015.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

 

By:

/s/

Jonathan Glover

 

Name:

 

Jonathan Glover

 

Title:

 

Vice President

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 400, Los Angeles, CA 90071

 

At the close of business June 30, 2015, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

 

 

Dollar amounts

 

 

 

 

 

 

 

in thousands

 

 

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

 

 

25,706

 

Interest-bearing balances

 

 

 

 

 

215,394

 

Securities:

 

 

 

 

 

 

 

Held-to-maturity securities

 

 

 

 

 

0

 

Available-for-sale securities

 

 

 

 

 

661,987

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

 

 

Federal funds sold

 

 

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

 

 

Loans and leases held for sale

 

 

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

 

 

0

 

Trading assets

 

 

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

 

 

12,228

 

Other real estate owned

 

 

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies

 

 

 

 

 

0

 

Direct and indirect investments in real estate ventures

 

 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

856,313

 

Other intangible assets

 

 

 

 

 

90,615

 

Other assets

 

 

 

 

 

126,234

 

Total assets

 

 

 

 

 

$

1,988,477

 

 

1


 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deposits:

 

 

 

 

 

 

 

In domestic offices

 

 

 

 

 

520

 

Noninterest-bearing

 

 

 

520

 

 

 

Interest-bearing

 

 

 

0

 

 

 

Not applicable

 

 

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

 

 

Federal funds purchased

 

 

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

 

 

0

 

Trading liabilities

 

 

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

 

 

0

 

Not applicable

 

 

 

 

 

 

 

Not applicable

 

 

 

 

 

 

 

Subordinated notes and debentures

 

 

 

 

 

0

 

Other liabilities

 

 

 

 

 

279,598

 

Total liabilities

 

 

 

 

 

280,118

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

 

 

0

 

Common stock

 

 

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

 

 

1,122,352

 

Not available

 

 

 

 

 

 

 

Retained earnings

 

 

 

 

 

584,561

 

Accumulated other comprehensive income

 

 

 

 

 

446

 

Other equity capital components

 

 

 

 

 

0

 

Not available

 

 

 

 

 

 

 

Total bank equity capital

 

 

 

 

 

1,708,359

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

 

 

0

 

Total equity capital

 

 

 

 

 

1,708,359

 

Total liabilities and equity capital

 

 

 

 

 

1,988,477

 

 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty           )               CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

 

)

 

 

William D. Lindelof, Director

 

)

 

Directors (Trustees)

Alphonse J. Briand, Director

 

)

 

 

 

2



Exhibit 25.4

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)      o

 

 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

 

(Jurisdiction of incorporation
if not a U.S. national bank)

 

95-3571558
(I.R.S. employer
identification no.)

 

 

 

400 South Hope Street
Suite 400
Los Angeles, California
(Address of principal executive offices)

 

90071
(Zip code)

 

 

Aon Corporation

(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

36-3051915
(I.R.S. employer
identification no.)

 

 

 

200 East Randolph Street
Chicago, Illinois
(Address of principal executive offices)

 

60601
(Zip code)

 

Aon plc

(Exact name of obligor as specified in its charter)

 

England and Wales
(State or other jurisdiction of
incorporation or organization)

 

98-1030901
(I.R.S. employer
identification no.)

 

 

 

The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN
(Address of principal executive offices)

 

(Zip code)

 

 

Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture securities)

 

 

 

 

1.                                       General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

 

Comptroller of the Currency

United States Department of the Treasury

 

Washington, DC 20219

 

 

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 


 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 


 

SIGNATURE

 

Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 21st day of August, 2015.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

 

By:

/s/

Jonathan Glover

 

Name:

 

Jonathan Glover

 

Title:

 

Vice President

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 400, Los Angeles, CA 90071

 

At the close of business June 30, 2015, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

 

 

Dollar amounts

 

 

 

 

 

 

 

in thousands

 

 

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

 

 

25,706

 

Interest-bearing balances

 

 

 

 

 

215,394

 

Securities:

 

 

 

 

 

 

 

Held-to-maturity securities

 

 

 

 

 

0

 

Available-for-sale securities

 

 

 

 

 

661,987

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

 

 

Federal funds sold

 

 

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

 

 

Loans and leases held for sale

 

 

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

 

 

0

 

Trading assets

 

 

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

 

 

12,228

 

Other real estate owned

 

 

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies

 

 

 

 

 

0

 

Direct and indirect investments in real estate ventures

 

 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

856,313

 

Other intangible assets

 

 

 

 

 

90,615

 

Other assets

 

 

 

 

 

126,234

 

Total assets

 

 

 

 

 

$

1,988,477

 

 

1


 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deposits:

 

 

 

 

 

 

 

In domestic offices

 

 

 

 

 

520

 

Noninterest-bearing

 

 

 

520

 

 

 

Interest-bearing

 

 

 

0

 

 

 

Not applicable

 

 

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

 

 

Federal funds purchased

 

 

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

 

 

0

 

Trading liabilities

 

 

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

 

 

0

 

Not applicable

 

 

 

 

 

 

 

Not applicable

 

 

 

 

 

 

 

Subordinated notes and debentures

 

 

 

 

 

0

 

Other liabilities

 

 

 

 

 

279,598

 

Total liabilities

 

 

 

 

 

280,118

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

 

 

0

 

Common stock

 

 

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

 

 

1,122,352

 

Not available

 

 

 

 

 

 

 

Retained earnings

 

 

 

 

 

584,561

 

Accumulated other comprehensive income

 

 

 

 

 

446

 

Other equity capital components

 

 

 

 

 

0

 

Not available

 

 

 

 

 

 

 

Total bank equity capital

 

 

 

 

 

1,708,359

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

 

 

0

 

Total equity capital

 

 

 

 

 

1,708,359

 

Total liabilities and equity capital

 

 

 

 

 

1,988,477

 

 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty           )               CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

 

)

 

 

William D. Lindelof, Director

 

)

 

Directors (Trustees)

Alphonse J. Briand, Director

 

)

 

 

 

2



Exhibit 25.5

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)      o

 

 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

 

 

95-3571558

(Jurisdiction of incorporation
if not a U.S. national bank)

 

(I.R.S. employer
identification no.)

 

400 South Hope Street
Suite 400
Los Angeles, California

 

90071

(Address of principal executive offices)

 

(Zip code)

 

 

Aon plc

(Exact name of obligor as specified in its charter)

 

England and Wales

 

98-1030901

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. employer
identification no.)

 

The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England EC3V 4AN

 

 

(Address of principal executive offices)

 

(Zip code)

 

Aon Corporation

(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

36-3051915
(I.R.S. employer
identification no.)

 

 

 

200 East Randolph Street
Chicago, Illinois
(Address of principal executive offices)

 

60601
(Zip code)

 

 

Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)

 

 

 

 

1.                                       General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

 

Comptroller of the Currency

United States Department of the Treasury

 

Washington, DC 20219

 

 

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 


 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 


 

SIGNATURE

 

Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 21st day of August, 2015.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

 

By:

/s/

Jonathan Glover

 

Name:

 

Jonathan Glover

 

Title:

 

Vice President

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 400, Los Angeles, CA 90071

 

At the close of business June 30, 2015, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

 

 

Dollar amounts

 

 

 

 

 

 

 

in thousands

 

 

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

 

 

25,706

 

Interest-bearing balances

 

 

 

 

 

215,394

 

Securities:

 

 

 

 

 

 

 

Held-to-maturity securities

 

 

 

 

 

0

 

Available-for-sale securities

 

 

 

 

 

661,987

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

 

 

Federal funds sold

 

 

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

 

 

Loans and leases held for sale

 

 

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

 

 

0

 

Trading assets

 

 

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

 

 

12,228

 

Other real estate owned

 

 

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies

 

 

 

 

 

0

 

Direct and indirect investments in real estate ventures

 

 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

856,313

 

Other intangible assets

 

 

 

 

 

90,615

 

Other assets

 

 

 

 

 

126,234

 

Total assets

 

 

 

 

 

$

1,988,477

 

 

1


 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deposits:

 

 

 

 

 

 

 

In domestic offices

 

 

 

 

 

520

 

Noninterest-bearing

 

 

 

520

 

 

 

Interest-bearing

 

 

 

0

 

 

 

Not applicable

 

 

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

 

 

Federal funds purchased

 

 

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

 

 

0

 

Trading liabilities

 

 

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

 

 

0

 

Not applicable

 

 

 

 

 

 

 

Not applicable

 

 

 

 

 

 

 

Subordinated notes and debentures

 

 

 

 

 

0

 

Other liabilities

 

 

 

 

 

279,598

 

Total liabilities

 

 

 

 

 

280,118

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

 

 

0

 

Common stock

 

 

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

 

 

1,122,352

 

Not available

 

 

 

 

 

 

 

Retained earnings

 

 

 

 

 

584,561

 

Accumulated other comprehensive income

 

 

 

 

 

446

 

Other equity capital components

 

 

 

 

 

0

 

Not available

 

 

 

 

 

 

 

Total bank equity capital

 

 

 

 

 

1,708,359

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

 

 

0

 

Total equity capital

 

 

 

 

 

1,708,359

 

Total liabilities and equity capital

 

 

 

 

 

1,988,477

 

 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty           )               CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

 

)

 

 

William D. Lindelof, Director

 

)

 

Directors (Trustees)

Alphonse J. Briand, Director

 

)

 

 

 

2