Aon plc S-3ASR, filed Jun 22, 2023
Aon plc (AON)
Table of Contents
As filed with the Securities and Exchange Commission on June 22, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| Aon plc Aon Global Limited Aon Global Holdings plc Aon Corporation Aon North America, Inc. |
Ireland England and Wales England and Wales Delaware Delaware |
98-1539969 98-1030901 98-1199820 36-3051915 52-1245792 | ||
| (Exact name of registrant as specified in its charter) |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
c/o Aon plc
Metropolitan Building
James Joyce Street
Dublin 1, Ireland D01 K0Y8
+353 1 266 6000
(Address, including zip code, and telephone number, including area code, of registrants’ principal executive offices)
Darren Zeidel
Executive Vice President, General Counsel and Company Secretary
200 East Randolph Street
Chicago, Illinois 60601
+1 (312) 381-1000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Robert A. Ryan, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
(212) 839-5300
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
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. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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. ☒
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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Aon plc | ||||||||
| Large accelerated filer ☒ |
Accelerated filer ☐ | Non-accelerated filer ☐ (Do not check if a smaller reporting company) | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
| Aon Global Limited | ||||||||
| Large accelerated filer ☐ |
Accelerated filer ☐ | Non-accelerated filer ☒ (Do not check if a smaller reporting company) | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
| Aon Global Holdings plc | ||||||||
| Large accelerated filer ☐ |
Accelerated filer ☐ | Non-accelerated filer ☒ (Do not check if a smaller reporting company) | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
| Aon Corporation | ||||||||
| Large accelerated filer ☐ |
Accelerated filer ☐ | Non-accelerated filer ☒ (Do not check if a smaller reporting company) | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
| Aon North America, Inc. | ||||||||
| Large accelerated filer ☐ |
Accelerated filer ☐ | Non-accelerated filer ☒ (Do not check if a smaller reporting company) | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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PROSPECTUS
| Aon plc Debt Securities Guarantees Class A Ordinary Shares Preference Shares Share Purchase Contracts Share Purchase Units |
Aon Global Limited Guarantees |
Aon Global Holdings plc Debt Securities Guarantees |
Aon Corporation Debt Securities Guarantees |
Aon North America, Inc. Debt Securities Guarantees |
We or our subsidiaries identified above may from time to time offer and sell any of the securities identified above, or any combination thereof, in each case, in one or more series and in one or more offerings. This prospectus provides you with a general description of the securities and the general manner in which they may be offered.
We or our subsidiaries identified above may offer and sell the securities to or through one or more underwriters, dealers and agents or directly to purchasers, or through a combination of these methods, on a continuous or delayed basis. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See “About this Prospectus” and “Plan of Distribution” for more information. None of the securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
Each time we or our subsidiaries identified above offer and sell securities, a supplement to this prospectus will be provided that contains specific information about the offering and the amounts, prices and terms of the securities. The prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of the securities, as well as the documents incorporated or deemed to be incorporated by reference herein and therein.
INVESTING IN THE SECURITIES DESCRIBED IN THIS PROSPECTUS INVOLVES RISK. YOU SHOULD CAREFULLY REVIEW THE RISKS AND UNCERTAINTIES DESCRIBED UNDER “RISK FACTORS” BEGINNING ON PAGE 8 OF THIS PROSPECTUS AND ANY RISK FACTORS SET FORTH IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND IN THE DOCUMENTS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN OR THEREIN.
Our executive offices are located at Metropolitan Building, James Joyce Street, Dublin 1, Ireland D01 K0Y8, and our telephone number is +353 1 266 6000.
The Class A ordinary shares of Aon plc 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 passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 22, 2023.
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| DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS OF AON PLC |
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This prospectus is part of an automatic shelf registration statement that we have filed with the U.S. Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”)) using an automatic “shelf” registration process. By using a shelf registration statement, we or our subsidiaries identified on the cover page of this prospectus may, over time, offer any combination of the securities described in this prospectus in one or more offerings.
Unless otherwise stated or the context otherwise requires, in this prospectus we use the terms:
| • | “Aon Corporation” to refer to Aon Corporation, a Delaware corporation; |
| • | “ANA” to refer to Aon North America, Inc., a Delaware corporation; |
| • | “AGL” to refer to Aon Global Limited, a limited company incorporated under the laws of England and Wales; |
| • | “Aon plc” to refer to Aon plc, an Irish public limited company; |
| • | “AGH” to refer to Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales; |
| • | “Aon,” “we,” “us” or “our” to refer to Aon plc, together with its consolidated subsidiaries, including Aon Corporation, ANA, AGL and AGH; and |
| • | the “securities” to refer collectively to the debt securities, guarantees, Class A ordinary shares, preference shares, share purchase contracts and share purchase units offered by Aon plc, the guarantees offered by AGL, the debt securities and guarantees offered by AGH, the debt securities and guarantees offered by Aon Corporation and the debt securities and guarantees offered by ANA. |
This prospectus provides you with a general description of the securities that Aon plc, AGL, AGH, Aon Corporation or ANA may offer. Each time that Aon plc, AGL, AGH, Aon Corporation or ANA offer and sell securities, a prospectus supplement to this prospectus will be provided that contains specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read this prospectus, any applicable prospectus supplement and any applicable free writing prospectuses, together with the additional information described under “Where You Can Find More Information” and “Incorporation by Reference.”
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 such registration statement. For further information, we refer you to such registration statement, 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, incorporated or deemed to be incorporated by reference in this prospectus and any 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, 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. The business, financial condition, results of operations and prospects of Aon plc, AGL, AGH, Aon Corporation and/or ANA may have changed since that date. Neither this prospectus
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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.
We have not authorized anyone to provide you with any information or to make any representations other than those contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any free writing prospectuses to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any applicable prospectus supplement is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless otherwise indicated. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference in such documents. Accordingly, you should not place undue reliance on this information.
Notice to Prospective Investors in the European Economic Area
This prospectus is not a prospectus for the purposes of Regulation (EU) 2017/1129 of the European Parliament and of the Council of June 14, 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (as amended, the “EU Prospectus Regulation”) or any legislation, regulations or rules of the European Union, Ireland or any other member state of the European Economic Area (the “EEA”) implementing the EU Prospectus Regulation, and has not been, and will not be, reviewed or approved by the Central Bank of Ireland nor by any other competent or supervisory authority of any other member state of the EEA for the purposes of the EU Prospectus Regulation. This prospectus has been prepared on the basis that any offer of securities in any member state of the EEA will only be made to a legal entity which is a qualified investor under the EU Prospectus Regulation (an “EEA Qualified Investor”). Accordingly, any person making or intending to make an offer of securities in any member state of the EEA may only do so to EEA Qualified Investors.
PROHIBITION OF SALES TO EEA RETAIL INVESTORS – No securities are intended to be offered, sold or otherwise made available to or should be offered, sold or otherwise made available to any retail investor in the EEA. For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not an EEA Qualified Investor. Consequently, no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling any securities or otherwise making them available to retail investors in the EEA has been, or will be, prepared, and therefore offering or selling any securities or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
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Notice to Prospective Investors in the United Kingdom
This prospectus is not a prospectus for the purposes of Regulation (EU) 2017/1129 as it forms part of domestic law in the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020 (the “EUWA”) (the “UK Prospectus Regulation”) and has not been, and will not be, reviewed or approved by the Financial Conduct Authority of the United Kingdom nor by any other competent or supervisory authority of the United Kingdom for the purposes of the UK Prospectus Regulation. This prospectus has been prepared on the basis that any offer of securities in the United Kingdom will only be made to a legal entity which is a qualified investor under the UK Prospectus Regulation (“UK Qualified Investors”). Accordingly, any person making or intending to make an offer of securities in the United Kingdom may only do so with respect to UK Qualified Investors.
PROHIBITION OF SALES TO UK RETAIL INVESTORS – No securities are intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the United Kingdom. For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law in the United Kingdom by virtue of the EUWA; or (ii) a customer within the meaning of the provisions of the United Kingdom’s Financial Services and Markets Act 2000, as amended (the “FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law in the United Kingdom by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of the UK Prospectus Regulation. Consequently, no key information document required by Regulation (EU) No 1286/2014 as it forms part of domestic law in the United Kingdom by virtue of the EUWA (the “UK PRIIPs Regulation”) for offering or selling any securities or otherwise making them available to retail investors in the United Kingdom has been, or will be, prepared and therefore offering or selling any securities or otherwise making them available to any retail investor in the United Kingdom may be unlawful under the UK PRIIPs Regulation.
The communication of this prospectus and any other document or materials relating to the issue of any securities is not being made, and such documents and/or materials have not been or will not be approved, by an authorized person for the purposes of section 21 of the FSMA. Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. The communication of such documents and/or materials as a financial promotion is only being and will only be made to those persons in the United Kingdom who have professional experience in matters relating to investments and who fall within the definition of investment professionals (as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Financial Promotion Order”)), or who fall within Article 49(2)(a) to (d) of the Financial Promotion Order, or who are any other persons to whom it may otherwise lawfully be made under the Financial Promotion Order (all such persons together being referred to as “relevant persons”). In the United Kingdom, any securities will only be available to, and any investment or investment activity to which this prospectus relates will be engaged in only with, relevant persons. Any person in the United Kingdom that is not a relevant person should not act or rely on this prospectus or its contents.
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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 reports, proxy statements and other information with the SEC. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC.
Our website address is www.aon.com. The information on our website is not, and should not be deemed to be, a part of this prospectus.
You will find additional information about us in the registration statement of which this prospectus forms a part. This prospectus and any prospectus supplement do not contain all of the information in the registration statement. Other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference therein. Statements in this prospectus or any prospectus supplement about these documents are summaries, and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. The full registration statement may be obtained through the SEC’s website as provided above, or through us as provided under “Incorporation by Reference.”
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The SEC’s rules allow us to “incorporate by reference” information in this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference, as the case may be, modifies or replaces that statement.
This prospectus and any accompanying prospectus supplement incorporate by reference (i) the documents set forth below and (ii) any future filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of this offering, other than, in each case, those documents or the portions thereof that are furnished and not filed:
| • | our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 17, 2023; |
| • | the information specifically incorporated by reference in our Annual Report on Form 10-K for the year ended December 31, 2022 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 28, 2023; |
| • | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on April 28, 2023; |
| • | our Current Reports on Form 8-K, filed with the SEC on February 28, 2023 and April 12, 2023; and |
| • | the description of the Class A ordinary shares of Aon plc contained in Exhibit 4.25 to our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 17, 2023, including any amendment or report filed for the purposes of updating such description. |
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
Aon Corporation
Attention: Company Secretary
200 East Randolph Street
Chicago, Illinois 60601
United States of America
Telephone: +1 312 381 1000
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
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INFORMATION CONCERNING FORWARD LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated or deemed to be incorporated by reference herein or therein may contain certain statements related to future results, or state our intentions, beliefs and expectations or predictions for the future, all of which are forward-looking statements as that term is defined in the Private Securities Litigation Reform Act of 1995. Forward-looking statements represent management’s expectations or forecasts of future events. Forward-looking statements are typically identified by words such as “anticipate,” “believe,” “estimate,” “expect,” “forecast,” “project,” “intend,” “plan,” “probably,” “potential,” “looking forward,” “continue” 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, dispositions and other significant transactions or the termination thereof; litigation and regulatory matters; pension obligations; cash flow and liquidity; expected effective tax rate; expected foreign currency translation impacts; potential changes in laws or 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, which may be revised or supplemented in subsequent reports filed or furnished with the SEC, that could impact results include:
| • | changes in the competitive environment, due to macroeconomic conditions (including impacts from instability in the banking or commercial real estate sectors) or otherwise, or damage to our reputation; |
| • | fluctuations in currency exchange, interest, or inflation rates that could impact our financial condition or results; |
| • | changes in global equity and fixed income markets that could affect the return on invested assets; |
| • | changes in the funded 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 and the terms thereof reducing our flexibility or increasing borrowing costs; |
| • | rating agency actions that could limit our access to capital and our competitive position; |
| • | our global tax rate being subject to a variety of different factors, including the adoption and implementation in the European Union, the United States, the United Kingdom, or other countries of the Organization for Economic Co-operation and Development tax proposals or other pending proposals in those and other countries, which could create volatility in that tax rate; |
| • | changes in our accounting estimates and assumptions on our financial statements; |
| • | limits on our subsidiaries’ ability to pay dividends or otherwise make payments to us; |
| • | the impact of legal proceedings and other contingencies, including those arising from acquisition or disposition transactions, errors and omissions and other claims against us; |
| • | the impact of, and potential challenges in complying with, laws and regulations of the jurisdictions in which we operate, particularly given the global nature of operations and the possibility of differing or conflicting laws and regulations, or the application or interpretation thereof, across such jurisdictions; |
| • | the impact of any regulatory investigations brought in Ireland, the United Kingdom, the United States of America (the “U.S.”) and other countries; |
| • | failure to protect intellectual property rights or allegations that we have infringed on the intellectual property rights of others; |
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| • | general economic and political conditions in the countries in which we do business around the world; |
| • | the failure to retain, attract and develop experienced and qualified personnel; |
| • | international risks associated with our global operations, including impacts from military conflicts or political instability, such as the ongoing Russian war in Ukraine; |
| • | the effects of natural or man-made disasters, including the effects of the COVID-19 pandemic and other health pandemics and the impacts of climate change; |
| • | any system or network disruption or breach resulting in operational interruption or improper disclosure of confidential, personal, or proprietary data, and resulting liabilities or damage to our reputation; |
| • | our ability to develop, implement, update and enhance new technology; |
| • | the actions taken by third parties that perform aspects of our business operations and client services; |
| • | the extent to which we are exposed to certain risks, including lawsuits, related to our actions we may take in being responsible for making decisions on behalf of clients in our investment businesses or in other advisory services that we currently provide, or will provide in the future; |
| • | our ability to continue, and the costs and risks associated with, growing, developing and integrating acquired business, and entering into new lines of business or products; |
| • | our ability to secure regulatory approval and complete transactions, and the costs and risks associated with the failure to consummate proposed transactions; |
| • | changes in commercial property and casualty markets, commercial premium rates or methods of compensation; |
| • | our ability to develop and implement innovative growth strategies and initiatives intended to yield cost savings, and the ability to achieve such growth or cost savings; and |
| • | the effects of Irish law on our operating flexibility and the enforcement of judgments against us. |
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 (and expressly disclaim any) 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 most recent Annual Report on Form 10-K, Part II, Item 1A of any subsequent Quarterly Reports on Form 10-Q and/or any Current Reports on Form 8-K filed after the date of this prospectus. See “Risk Factors.”
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Investment in any securities offered pursuant to this prospectus and any applicable prospectus supplement involves risks. You should carefully consider the risk factors contained under “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K, Part II, Item 1A of any subsequent Quarterly Reports on Form 10-Q and/or any Current Reports on Form 8-K filed after the date of this prospectus, and all other information contained or incorporated by reference in this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in any applicable prospectus supplement and any applicable free writing prospectus, before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
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We are a leading global professional services firm providing a broad range of risk, health, and wealth solutions. Through our experience, global reach, and comprehensive analytics, we are better able to help clients meet rapidly changing, increasingly complex, and interconnected challenges. We are committed to accelerating innovation to address unmet and evolving client needs, so that our clients are better informed, better advised, and able to make better decisions to protect and grow their business. Management is focused on strengthening Aon and uniting the firm with one portfolio of capability enabled by data and analytics and one operating model to deliver additional insight, connectivity, and efficiency. Our principal executive offices are located at Metropolitan Building, James Joyce Street, Dublin 1, Ireland D01 K0Y8, our telephone number is +353 1 266 6000 and our website is www.aon.com. The information on our website is not, and should not be deemed to be, a part of this prospectus.
Aon plc is an Irish public limited company and its Class A ordinary shares are currently traded on the NYSE under the symbol “AON.” AGL is a limited company incorporated under the laws of England and Wales. AGH is a public limited company incorporated under the laws of England and Wales. Aon Corporation is a Delaware corporation. ANA is a Delaware corporation. Each of AGL, AGH, Aon Corporation and ANA is an indirect, wholly owned subsidiary of Aon plc. See “About this Prospectus,” “Where You Can Find More Information” and “Incorporation by Reference.”
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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 any 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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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
In this description, 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 maintains for this purpose, and not those who own beneficial interests in debt securities and the related guarantees registered in “street name” or issued in book-entry form and held through one or more depositaries.
The following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of the senior debt securities that AGH may offer (the “AGH debt securities”), Aon Corporation may offer (the “Aon Corporation debt securities”), ANA may offer (the “ANA debt securities”) or that any combination of Aon plc, AGH, Aon Corporation or ANA may offer as co-issuers (the “co-issued debt securities”) pursuant to this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the applicable prospectus supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of debt securities.
AGH Debt Securities
AGH may issue the AGH debt securities or the co-issued debt securities under an indenture (the “AGH indenture”), among AGH, as issuer or co-issuer, any of Aon plc, Aon Corporation or ANA, as co-issuer, and Aon plc, AGL, Aon Corporation and/or ANA, to the extent not acting as co-issuer, as guarantors (the “AGH guarantors”) in respect of certain series of AGH debt securities or co-issued debt securities, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “trustee”).
Any AGH debt securities that AGH issues or co-issued debt securities that AGH co-issues under the AGH indenture will constitute unsubordinated debt of AGH. Any guarantee that Aon plc, AGL, Aon Corporation and/or ANA, as the AGH guarantors, issues under the AGH indenture will constitute an unsubordinated obligation of Aon plc, AGL, Aon Corporation and/or ANA, as applicable (each, an “AGH debt guarantee”).
Aon Corporation Debt Securities
Aon Corporation may issue the Aon Corporation debt securities or the co-issued debt securities under an indenture (the “Aon Corporation indenture”), among Aon Corporation, as issuer or co-issuer, any of Aon plc, AGH or ANA, as co-issuer, and Aon plc, AGL, AGH and/or ANA, to the extent not acting as co-issuer, as guarantors (the “Aon Corporation guarantors”) in respect of certain series of Aon Corporation debt securities or co-issued debt securities, and the trustee.
Any Aon Corporation debt securities that Aon Corporation issues or co-issued debt securities that Aon Corporation co-issues under the Aon Corporation indenture will constitute unsubordinated debt of Aon Corporation. Any guarantee that Aon plc, AGL, AGH and/or ANA, as the Aon Corporation guarantors, issues under the Aon Corporation indenture will constitute an unsubordinated obligation of Aon plc, AGL, AGH and/or ANA, as applicable (each, an “Aon Corporation debt guarantee”).
ANA Debt Securities
ANA may issue the ANA debt securities or the co-issued debt securities under an indenture (the “ANA indenture”), among ANA, as issuer or co-issuer, any of Aon plc, AGH or Aon Corporation, as co-issuer, and Aon plc, AGL, AGH and/or Aon Corporation, to the extent not acting as co-issuer, as guarantors (the “ANA guarantors”) in respect of certain series of ANA debt securities or co-issued debt securities, and the trustee.
Any ANA debt securities that ANA issues or co-issued debt securities that ANA co-issues under the ANA indenture will constitute unsubordinated debt of ANA. Any guarantee that Aon plc, AGL, AGH and/or Aon Corporation, as the ANA guarantors, issues under the ANA indenture will constitute an unsubordinated obligation of Aon plc, AGL, AGH and/or Aon Corporation, as applicable (each, an “ANA debt guarantee”).
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In this description:
| • | the AGH debt securities, the Aon Corporation debt securities, the ANA debt securities and the co-issued debt securities are sometimes referred to collectively as the “debt securities”; |
| • | the AGH indenture, the Aon Corporation indenture and the ANA indenture are sometimes referred to collectively as the “indentures”; |
| • | the AGH debt guarantees, the Aon Corporation debt guarantees and the ANA debt guarantees are sometimes referred to collectively as the “guarantees”; |
| • | each of AGH, Aon Corporation and ANA, in each case in its capacity as issuer or co-issuer of debt securities, and Aon plc, in its capacity as co-issuer of debt securities, is sometimes referred to as an “issuer”; and |
| • | each of the AGH guarantors, the Aon Corporation guarantors and the ANA guarantors is sometimes referred to as a “guarantor.” |
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution of our board of directors, in an officers’ certificate or by a supplemental 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 (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 debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
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 co-issuer, if any, the guarantors, if any, and whether the debt securities are to be guaranteed. The debt securities may be issued as part of units consisting of debt securities and other securities that may be offered under this prospectus. If debt securities are issued as part of units of debt securities and other securities that may be issued 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 debt securities and any debt guarantees will be unsecured and unsubordinated obligations of the applicable issuer and will rank equally in right of payment with such issuer’s other unsecured and unsubordinated obligations. Because each of Aon plc, AGL, AGH, Aon Corporation and ANA is a holding company, the holders of debt securities and debt guarantees may not receive assets of the applicable issuer’s or guarantor’s subsidiaries in a liquidation or recapitalization until the claims of such subsidiaries’ creditors and any insurance policyholders (in the case of insurance subsidiaries) are paid, except to the extent that the applicable issuer or guarantor may have recognized claims against such subsidiaries. In addition, certain regulatory laws limit some of such subsidiaries from making payments to the applicable issuer of dividends and on loans and other transfers of funds.
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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 and, if applicable, the names of the co-issuers of those debt securities and, if applicable, the name of any guarantor; |
| • | the title of the debt securities; |
| • | 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 or rates; |
| • | 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; |
| • | whether the 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 and/or any co-issuer, if applicable, at its and/or their option or at the option of the holders; |
| • | whether there will be a sinking fund; |
| • | if other than U.S. dollars and denominations of $2,000 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 debt securities will be exchangeable for or convertible into Class A ordinary shares of Aon plc or any other securities or property and the terms and conditions governing such exchange or conversion; and |
| • | any other terms of the debt securities. |
If an issuer denominates the purchase price of a series of debt securities in a non-U.S. dollar currency or currencies or a non-U.S. dollar currency unit or units, or if the principal of, or any premium and interest on, any series of debt securities is payable in a non-U.S. dollar currency or currencies or a non-U.S. dollar currency unit or units, an applicable prospectus supplement will describe any special U.S. 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.
Unless otherwise indicated in an applicable prospectus supplement, each issuer will issue debt securities in fully registered form, without coupons, in denominations of $2,000 or multiples of $1,000 in excess thereof.
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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 U.S. 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.
The indentures do not restrict the issuers’ 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 the issuers’ 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 issuers or, if applicable, the guarantors incurring unsecured indebtedness or engaging in certain reorganizations or transactions. As a result, any of the issuers 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 the continuation of that failure for 30 days; |
| • | if that series of debt securities is guaranteed, the cessation of any guarantee of any debt security of that series to be in full force and effect, the declaration that any guarantee of such debt securities is null and void and unenforceable, the finding that any guarantee of such debt securities is invalid or the denial by any guarantor of its liability under its guarantee of such debt securities (other than by reason of the release of such guarantor in accordance with the terms of the applicable indenture); |
| • | failure by the issuer or, if applicable, a 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 such issuer or, if applicable, guarantor from the applicable trustee (or to such issuer and, if applicable, 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, a guarantor; |
| • | if that series of debt securities is convertible or exchangeable into Class A ordinary shares of Aon plc or any other securities or property, default in the delivery of any such Class A ordinary shares, together with cash in lieu of fractional shares, or other securities or property, as applicable, when required to be delivered upon conversion or exchange of any debt security of that series, and the continuation of such default for 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. |
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
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series may require the issuer or, if applicable, the guarantors 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 an 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 such debt securities have been cured or (ii) all such events of default have been waived, each as provided in the applicable indenture. 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. 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.
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 thereunder unless:
| • | the applicable trustee has failed to institute the proceeding for 60 days after the holder has previously given such 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. |
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.
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 such debt securities known to such trustee, except that the trustee need not provide holders of such debt securities 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 such trustee considers it in the interest of the holders of such debt securities not to provide that notice.
Consolidation and Merger
Each indenture provides that each of the issuer and the guarantors may consolidate with or merge or convert into, or convey, transfer or lease its or their 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 such guarantor, as the case may be, is the successor person; or |
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| • | the successor person (if other than the issuer or such guarantor, as the case may be) formed by such consolidation or conversion or into which the issuer or such guarantor, as the case may be, merges or converts or which acquires or leases the assets of the issuer or such guarantor, as the case may be, substantially as an entirety: |
| • | in the case of Aon Corporation or ANA, is a corporation or other entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; |
| • | in the case of Aon plc, AGL, AGH, Aon Corporation or ANA, expressly assumes by supplemental indenture the obligations of the issuer or such guarantor, as the case may be, in relation to the debt securities or such guarantee, 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, AGL, AGH, Aon Corporation or ANA, 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. |
It is possible that a merger, transfer, lease or other transaction could be treated for U.S. 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 U.S. 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 in Respect of Guarantees
Payments made by a guarantor in respect of its guarantee 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 Ireland or the United Kingdom, as applicable, or, in each case, by any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), unless such guarantor is required to withhold or deduct Taxes by law.
If a guarantor is required to withhold or deduct any amount for or on account of Taxes from any payment made with respect to its guarantee, such guarantor will pay such additional amounts as may be necessary so that the net amount received by each holder or beneficial owner (including additional amounts) after such withholding or deduction will not be less than the amount the holder or 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 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 the United Kingdom or Ireland, as applicable, or, in each case, 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, domicile or 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 in respect of a guarantee; |
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| • | 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 or Taxes shall be payable, such guarantor 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 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 debt 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; |
| • | that would not have been imposed if presentation for payment of the relevant debt security or guarantee (where presentation is required) 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 in respect of a guarantee to any such holder who is a fiduciary or a partnership or 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.
For avoidance of doubt, no additional amounts shall be paid with respect to 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 States, Ireland, the United Kingdom or any other taxing authority relating to payments by the issuer under the debt securities.
All references in this prospectus, other than under “ —Defeasance,” 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.
Each guarantor’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.
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 of such series of debt securities 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 Ireland or the United Kingdom (or, in |
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| each case, of any political subdivision or taxing authority thereof), 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 Ireland or the United Kingdom is a party, which change, execution or amendment becomes effective on or after the issue date of the applicable debt securities and the guarantor would be required to pay additional amounts (as described under “ —Payment of Additional Amounts”) with respect to its guarantee 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 such guarantor; 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 Ireland or the United Kingdom (or, in each case, any political subdivision or taxing authority thereof), which action is taken or brought on or after the issue date of the applicable debt securities, 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 a guarantor would be obligated to pay any additional amounts.
Prior to the delivery of any notice of redemption, the issuer will deliver to the trustee an officers’ 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 officers’ 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 guarantors 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 applicable 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 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 guarantors or the issuer together with the guarantors irrevocably deposits or 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 guarantors delivers or deliver to the applicable trustee an opinion of counsel confirming that the beneficial owners of the debt securities of that series will not recognize |
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| income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. 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 guarantors has or have received from the U.S. Internal Revenue Service a ruling or, since the date of execution of the applicable indenture, there has been a change in the applicable U.S. federal income tax law, in any case, in support of that opinion.
In addition, the issuer or, if applicable, the guarantors or the issuer together with the guarantors 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.
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 guarantors 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”). |
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 beneficial owners of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the covenant defeasance and will be subject to U.S. 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. |
Covenant Defeasance and Certain Other Events of Default. If the issuer or, if applicable, the guarantors or the issuer together with the guarantors exercises or 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
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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 guarantors would remain liable for any shortfall.
Modification and Waiver
Each indenture provides that the issuer and, if applicable, the guarantors 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, a guarantor’s obligations; |
| • | add covenants or events of default or to surrender any right or power conferred upon the issuer or, if applicable, a 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. |
The issuer and, if applicable, the guarantors 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, the issuer and, if applicable, the guarantors 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. |
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.
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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 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.
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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.
Guarantees
Under each guarantee, the applicable guarantor will fully and 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 full and unconditional, joint and several, 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 a 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 of Aon plc or other securities. Such terms will include the conversion price, the conversion period, provisions as to whether conversion will be at the option of the issuer or the holder, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of such debt securities.
Regarding the Trustee
The issuers have commercial deposits and custodial arrangements with The Bank of New York Mellon Trust Company, N.A. (“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 more of the issuers have issued.
BNYM will be serving as the trustee under the indentures. Consequently, if an actual or potential event of default occurs with respect to the 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 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.
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DESCRIPTION OF PREFERENCE SHARES OF AON PLC
In this description, references to “holders” mean those who own preference shares of Aon plc registered in their own names, on the books that the registrar maintains for this purpose, and not those who own beneficial interests in preference shares of Aon plc registered in “street name” or 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 of Aon plc which may be offered by this prospectus, see the documents incorporated by reference in this prospectus, the applicable prospectus supplement, Aon plc’s Constitution (the “Aon plc Constitution”), which is 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 such registration statement at or prior to the time of the issuance of that series of preference shares.
The Aon plc Constitution authorizes Aon plc to issue preference shares, in one or more classes or series, with or without voting rights attached to them, with the number of shares of each class or series and the powers, preferences, rights and limitations thereof (which may include preferences regarding dividends and liquidation rights over the Class A ordinary shares of Aon plc) to be determined by Aon plc’s board of directors at the time of issuance of the relevant preference shares. Aon plc’s board of directors has been authorized to issue up to 50,000,000 preference shares, all of which remain authorized for allotment and issuance. This authority will expire five years from the date of adoption of the Aon plc Constitution (which occurred on March 31, 2020).
We will include the specific terms of each series of the preference shares of Aon plc being offered in an applicable prospectus supplement.
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DESCRIPTION OF CLASS A ORDINARY SHARES OF AON PLC
In this description, references to “holders” mean those who own Class A ordinary shares of Aon plc registered in their own names, on the books that the registrar maintains for this purpose, and not those who own beneficial interests in Class A ordinary shares of Aon plc registered in street name or issued in book-entry form and held through one or more depositaries.
The description of the Class A ordinary shares of Aon plc is incorporated in this prospectus by reference to Exhibit 4.25 to our Annual Report on Form 10-K filed with the SEC on February 17, 2023, including any amendment or report filed for the purposes of updating such description. The Class A ordinary shares of Aon plc 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 of Aon plc which may be offered by this prospectus, see the applicable prospectus supplement, the Aon plc Constitution, which is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part, and any other instrument relating to the Class A ordinary shares of Aon plc filed with the SEC as an exhibit to or incorporated by reference in such registration statement at or prior to the time of the issuance of the Class A ordinary shares of Aon plc.
The Aon plc Constitution authorizes Aon plc to allot and issue, and to grant rights to subscribe for or to convert or exchange any security into or for, its Class A ordinary shares, which shall have the same rights, preferences and limitations as its existing Class A ordinary shares. Aon plc’s board of directors has been authorized to issue up to 500,000,000 Class A ordinary shares. Of this amount, as of June 15, 2023, 290,585,616 Class A ordinary shares remained authorized for allotment and issuance. This authority will expire five years from the date of adoption of the Aon plc Constitution (which occurred on March 31, 2020).
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DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS OF AON PLC
Aon plc may issue share purchase contracts, representing contracts obligating holders to purchase from Aon plc, and obligating Aon plc to sell to the holders, a specified number of its Class A ordinary shares at a future date or dates. The price per share and the number of Class A Ordinary Shares of Aon plc 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 the Class A Ordinary Shares of Aon plc:
| • | co-issued debt securities; |
| • | preference shares of Aon plc; or |
| • | debt obligations of third parties, including AGH debt securities, Aon Corporation debt securities, ANA debt securities and U.S. Treasury securities. |
Subject to applicable law, the share purchase contracts may require Aon plc 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, Aon plc 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.
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Aon plc, AGL, AGH, Aon Corporation or ANA 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; |
| • | through agents; |
| • | any combination of the distribution methods above; or |
| • | any other methods of distribution described in an applicable prospectus supplement. |
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, Aon plc, AGL, AGH, Aon Corporation or ANA 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 such applicable prospectus supplement, sell securities covered by this prospectus and such applicable prospectus supplement. If so, the third party may use securities borrowed from Aon plc, AGL, AGH, Aon Corporation, ANA or others to settle such sales and may use such securities to close any related short positions. Aon plc, AGL, AGH, Aon Corporation or ANA 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 such 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; |
| • | 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; |
| • | 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. |
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.
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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 Aon plc, AGL, AGH, Aon Corporation or ANA 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 Aon plc, AGL, AGH, Aon Corporation or ANA, or through agents designated by one of them from time to time. In the case of securities sold directly by Aon plc, AGL, AGH, Aon Corporation or ANA, 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 Aon plc, AGL, AGH, Aon Corporation or ANA 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.
Aon plc, AGL, AGH, Aon Corporation or ANA 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 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 one or more of Aon plc, AGL, AGH, Aon Corporation or ANA, to indemnification by one or more of Aon plc, AGL, AGH, Aon Corporation or ANA 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 the Class A ordinary shares of Aon plc, which are listed on the New York Stock Exchange, will be new issues with no established trading market. Aon plc, AGL, AGH, Aon Corporation or ANA, as applicable, may elect to list any of the securities on one or more exchanges, but unless otherwise specified in an applicable prospectus supplement, shall not be obligated to do so. In addition, 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.
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Unless otherwise indicated in an applicable prospectus supplement, the validity of the securities will be passed upon for us as to U.S. law by Sidley Austin LLP, as to Irish law by Matheson LLP and as to English law by Freshfields Bruckhaus Deringer LLP. Any underwriters, dealers or agents may be advised about other issues relating to any offering by their own legal counsel.
The consolidated financial statements of Aon plc appearing in Aon plc’s Annual Report on Form 10-K for the year ended December 31, 2022 and the effectiveness of Aon plc’s internal control over financial reporting as of December 31, 2022, 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 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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Aon plc
Debt Securities
Guarantees
Class A Ordinary Shares
Preference Shares
Share Purchase Contracts
Share Purchase Units
Aon Global Limited
Guarantees
Aon Global Holdings plc
Debt Securities
Guarantees
Aon Corporation
Debt Securities
Guarantees
Aon North America, Inc.
Debt Securities
Guarantees
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with the offering described in this registration statement:
| SEC registration fee |
$ | * | ||
| Printing fees and expenses |
* | * | ||
| Legal fees and expenses |
* | * | ||
| Trustee fees and expenses |
* | * | ||
| Rating agencies’ fees and expenses |
* | * | ||
| Accountants’ fees and expenses |
* | * | ||
| Miscellaneous expenses |
* | * | ||
| Total |
$ | * | * |
| * | In accordance with Rules 456(b) and 457(r) under the Securities Act, we are deferring payment of the registration fee for the securities described in this registration statement. |
| ** | These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Aon plc
Subject to exceptions, the Companies Act 2014 of Ireland, as amended, (the “Irish Companies Act”) does not permit a company to exempt a director or certain officers from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director in relation to the company.
The exceptions allow a company to: (a) purchase and maintain directors and officers insurance against any liability attaching in connection with any negligence, default, breach of duty or breach of trust owed to the company; and (b) indemnify a director or such other officer against any liability incurred in defending proceedings, whether civil or criminal, (i) in which judgment is given in his or her favor or in which he or she is acquitted or (ii) in respect of which an Irish court grants him or her relief from any such liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.
The Aon plc Constitution includes a provision which, subject to the provisions of the Irish Companies Act as aforesaid, entitles every present and former director and other officer of Aon plc to be indemnified out of the assets of Aon plc (other than any person (whether an officer or not) engaged by Aon plc as auditor) against any loss or liability incurred by him or her for negligence, default, breach of duty or breach of trust in relation to the affairs of Aon plc or otherwise incurred by him or her in the execution and discharge of his or her duties to Aon plc.
Under the Irish Companies Act, Aon plc may purchase and maintain directors’ and officers’ liability insurance, at the expense of Aon plc, for the benefit of any of its present and former directors and other officers. The directors of Aon plc will be entitled to cover pursuant to the Aon group’s directors’ and officers’ liability insurance.
In addition to the provisions of the Aon plc Constitution, it is common for a public limited company to enter into a separate deed of indemnity with a director or officer which essentially indemnifies the director or officer
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against claims brought by third parties to the fullest extent permitted under Irish law. Aon plc has entered and will enter into such deeds of indemnity with its directors.
Aon Global Limited and Aon Global Holdings plc
Each of Aon Global Limited and Aon Global Holdings plc (together, the “English Entities”) is incorporated under the laws of England and Wales. Aon Global Limited is a limited company incorporated under the laws of England and Wales, and Aon Global Holdings plc is a public limited company incorporated under the laws of England and Wales. Chapter 7 of Part 10 of the UK Companies Act 2006 (as amended from time to time, the “UK 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 UK 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 the 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 falling 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 (or an associated company) against liability for negligence, default, breach of duty or breach of trust in relation to the company.
Section 234 allows for a company to provide an indemnity against liability incurred by a director to someone other than the company 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 UK Companies Act.
Section 235 allows a company 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 the English Entities.
Any indemnity provided under Section 234 or Section 235 must be disclosed in each English Entity’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 of each English Entity 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 a company can be ratified, in accordance with Section 239, by a resolution of the members of the company, disregarding the votes of the director (if a member of the company) and any connected member. This, however, does not prevent the director or any such connected member from attending, being counted towards the quorum and taking part in the proceedings at any meeting at which the decision is considered.
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To the extent permitted by the UK Companies Act and without prejudice to any indemnity to which any person may otherwise be entitled, the articles of association of each English Entity provide for the indemnification of every director or other officer of that English Entity (other than any person (whether an officer or not) engaged by that English Entity as auditor) out of the assets of that English Entity against any liability incurred by him for negligence, default, breach of duty or breach of trust in relation to the affairs of that English Entity.
Where a person is indemnified against any liability as described in this Item 15, such indemnity shall extend, to the extent permitted by the UK Companies Act, to all costs, charges, losses, expenses and liabilities incurred by him in relation thereto.
In addition, without prejudice to any other indemnity to which the director may otherwise be entitled, each English Entity has from time to time entered into and, in the future, may enter into deeds of indemnity with its directors and certain of its officers. Under the deeds of indemnity, each English Entity may indemnify such directors and officers up to the fullest extent permitted or authorized by the UK Companies Act or by any other statutory provisions authorizing or permitting such indemnification.
The English Entities expect that any underwriting agreement or distribution agreement relating to the securities will provide for indemnification of directors and officers of the English Entities by the underwriters or agents, as the case may be, against certain liabilities.
The directors of each English Entity will also be entitled to cover pursuant to the Aon group’s directors’ and officers’ liability insurance.
Aon Corporation and Aon North America, Inc.
Each of Aon Corporation and Aon North America, Inc. (together, the “Delaware Entities”) 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. 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 Sixth of Aon Corporation’s Amended and Restated Certificate of Incorporation, as amended (the “Aon Corporation Certificate of Incorporation”), provides that no person who is or was a director of Aon Corporation shall be personally liable to Aon Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for, and only to the extent of, liability (i) for any breach of the director’s duty of loyalty to Aon Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of Aon Corporation, in addition to the limitation on personal liability provided above, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law.
Article Sixth of Aon Corporation’s Amended and Restated By-laws (the “Aon Corporation By-laws”) provides that Aon Corporation will indemnify its officers and directors (including such persons serving as officers and directors of certain subsidiaries) to the fullest extent authorized by Delaware law.
Article Tenth of Aon North America, Inc.’s Certificate of Incorporation, as amended (together with the Aon Corporation Certificate of Incorporation, the “Delaware Charters”), provides that Aon North America, Inc. will
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indemnify its officers and directors (including such persons serving as officers and directors of certain subsidiaries) to the extent not prohibited by Delaware law.
Furthermore, each Delaware Entity 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 law, the Delaware Charters and the Aon Corporation By-laws.
The Delaware Entities expect that any underwriting agreement or distribution agreement relating to the securities will provide for indemnification of directors and officers of the Delaware Entities, as applicable, by the underwriters or agents, as the case may be, against certain liabilities.
Each Delaware Entity has from time to time also entered into separate indemnification agreements with certain of its officers, which agreements provide specific contractual assurance with respect to the existing indemnification and expense advancement rights extended to such officers and directors under the Delaware Charters and the Aon Corporation By-laws.
The directors of the Delaware Entities will also be entitled to cover pursuant to the Aon group’s directors’ and officers’ liability insurance.
Item 16. Exhibits.
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| * | To be filed as an exhibit to a Current Report on Form 8-K and incorporated by reference or by post-effective amendment to this registration statement. |
Item 17. Undertakings.
Each undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made of the securities registered hereby, 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, as amended (the “Securities Act”); |
| (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 Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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, as amended (the “Exchange Act”), 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.
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| (2) | That, for the purpose of determining any liability under the Securities Act, 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 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 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 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 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, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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. |
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| (7) | Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities Act 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 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 of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act of 1939. |
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Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing 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 June 22, 2023.
| AON PLC | ||
| By: | /s/ Christa Davies | |
| Name: Christa Davies | ||
| Title: Chief Financial Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christa Davies, Paul Hagy, Michael Neller, Julie Cho and Darren Zeidel, or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, as amended, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated as of June 22, 2023.
| Signature | Title | |
| /s/ Gregory C. Case Gregory C. Case |
Chief Executive Officer and Director (Principal Executive Officer) | |
| /s/ Lester B. Knight Lester B. Knight |
Non-Executive Chairman and Director | |
| /s/ Jin-Yong Cai Jin-Yong Cai |
Director | |
| /s/ Jeffrey C. Campbell Jeffrey C. Campbell |
Director | |
| /s/ Fulvio Conti Fulvio Conti |
Director | |
| /s/ Cheryl A. Francis Cheryl A. Francis |
Director | |
| /s/ Adriana Karaboutis Adriana Karaboutis |
Director | |
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| Signature | Title | |
| /s/ Richard C. Notebaert Richard C. Notebaert |
Director | |
| /s/ Gloria Santona Gloria Santona |
Director | |
| /s/ Sarah E. Smith Sarah E. Smith |
Director | |
| /s/ Byron Spruell Byron Spruell |
Director | |
| /s/ Carolyn Y. Woo Carolyn Y. Woo |
Director | |
| /s/ Christa Davies Christa Davies |
Chief Financial Officer (Principal Financial Officer) | |
| /s/ Michael Neller Michael Neller |
Global Controller (Principal Accounting Officer) | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing 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 June 22, 2023.
| AON GLOBAL LIMITED | ||
| By: | /s/ Alistair Boyd | |
| Name: Alistair Boyd | ||
| Title: Director | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christa Davies, Paul Hagy, Michael Neller, Julie Cho and Darren Zeidel, or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, as amended, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated as of June 22, 2023.
| Signature | Title | |
| /s/ Alistair Boyd Alistair Boyd |
Director | |
| /s/ Rogier Sparreboom Rogier Sparreboom |
Director | |
| /s/ Pelagia Katsaouni-Dodd Pelagia Katsaouni-Dodd |
Director | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing 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 June 22, 2023.
| AON GLOBAL HOLDINGS PLC | ||
| By: | /s/ Gardner Mugashu | |
| Name: Gardner Mugashu | ||
| Title: Director | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christa Davies, Paul Hagy, Michael Neller, Julie Cho and Darren Zeidel, or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, as amended, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated as of June 22, 2023.
| Signature | Title | |
| /s/ Alistair Boyd Alistair Boyd |
Director | |
| /s/ Pelagia Katsaouni-Dodd Pelagia Katsaouni-Dodd |
Director | |
| /s/ Gardner Mugashu Gardner Mugashu |
Director | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing 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 June 22, 2023.
| AON CORPORATION | ||
| By: | /s/ Julie Cho | |
| Name: Julie Cho | ||
| Title: Vice President & Secretary | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christa Davies, Paul Hagy, Michael Neller, Julie Cho and Darren Zeidel, or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, as amended, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated as of June 22, 2023.
| Signature | Title | |
| /s/ Gregory C. Case 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/ Michael Neller Michael Neller |
Senior Vice President and Global Controller (Principal Accounting Officer) | |
| /s/ Julie Cho Julie Cho |
Director | |
| /s/ Michelle S. Ley Michelle S. Ley |
Director | |
| /s/ Maureen Paramore Maureen Paramore |
Director | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing 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 June 22, 2023.
| AON NORTH AMERICA, INC. | ||
| By: | /s/ Paul Hagy | |
| Name: Paul Hagy | ||
| Title: President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christa Davies, Paul Hagy, Michael Neller, Julie Cho and Darren Zeidel, or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, as amended, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated as of June 22, 2023.
| Signature | Title | |
| /s/ Paul Hagy Paul Hagy |
President and Treasurer (Principal Executive Officer, Principal Financial Officer, and Principal Accounting Officer) | |
| /s/ Robert E. Lee, III Robert E. Lee, III |
Director | |
| /s/ Julie Cho Julie Cho |
Director | |
| /s/ Michelle S. Ley Michelle S. Ley |
Director | |
Exhibit 4.2
THE COMPANIES ACT 2006
PRIVATE COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
Aon Global Limited
(Company No. 07876075)
PART 1 - PRELIMINARY
| 1. | Articles of association |
These articles constitute the articles of association of the company. No regulations contained in any statute or subordinate legislation, including the regulations contained in Schedule 1 to The Companies (Model Articles) Regulations 2008, apply to the company.
INTERPRETATION AND LIMITATION OF LIABILITY
| 2. | Defined terms |
| (1) | In the articles, unless the context requires otherwise: |
| alternate or alternate director | has the meaning given in article 24; | |||
| Aon Ireland | has the meaning given in article 77; | |||
| Aon Share Plans | has the meaning given in article 77; | |||
| appointor | has the meaning given in article 24; | |||
| articles | means the company’s articles of association; | |||
| auditors | means the auditors of the company; | |||
| bankruptcy | includes individual insolvency proceedings in a jurisdiction other than England and Wales or Northern Ireland which have an effect similar to that of bankruptcy; | |||
| call | has the meaning given in article 36; | |||
| call notice | has the meaning given in article 36; | |||
| chairman | has the meaning given in article 13; | |||
| chairman of the meeting | has the meaning given in article 61; | |||
| Companies Acts | means the Companies Acts (as defined in section 2 of the Companies Act 2006), in so far as they apply to the company; | |||
| company’s lien | has the meaning given in article 34; | |||
| director | means a director of the company, and includes any person occupying the position of director, by whatever name called and “directors” means the directors or any of them acting as the board of directors of the company; | |||
| distribution recipient | has the meaning given in article 52; | |||
| document | includes, unless otherwise specified, any document sent or supplied in electronic form; | |||
| electronic form | has the meaning given in section 1168 of the Companies Act 2006; | |||
| fully paid | in relation to a share, means that the nominal value and any premium to be paid to the company in respect of that share have been paid to the company; | |||
| hard copy form | has the meaning given in section 1168 of the Companies Act 2006; | |||
| holder | in relation to shares means the person whose name is entered in the register of members as the holder of the shares; | |||
| instrument | means a document in hard copy form; | |||
| lien enforcement notice | has the meaning given in article 35; | |||
| member | has the meaning given in section 112 of the Companies Act 2006; | |||
| New Member | has the meaning given in article 77; | |||
| office | means the registered office of the company; | |||
| ordinary resolution | has the meaning given in section 282 of the Companies Act 2006; | |||
| paid | means paid or credited as paid; | |||
| parent company | means a company (wherever incorporated) which is the holder of not less than ninety per cent of the issued shares of the company; | |||
| participate | in relation to a directors’ meeting, has the meaning given in article 11; | |||
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| partly paid | in relation to a share means that part of that share’s nominal value or any premium at which it was issued has not been paid to the company; | |||
| Post-Scheme Share | has the meaning given in article 77; | |||
| proxy notice | has the meaning given in article 67; | |||
| Purchaser | has the meaning given in article 77; | |||
| Return of Capital | has the meaning given in article 77; | |||
| Scheme | has the meaning given in article 77; | |||
| secretary | means the secretary of the company or any other person appointed to perform the duties of the secretary of the company, including a joint, assistant or deputy secretary; | |||
| shares | means shares in the company; | |||
| special resolution | has the meaning given in section 283 of the Companies Act 2006; | |||
| subsidiary | has the meaning given in section 1159 of the Companies Act 2006; | |||
| transmittee | means a person entitled to a share by reason of the death or bankruptcy of a member, or in consequence of the merger or consolidation of any member, being a corporation, or otherwise by operation of law; and | |||
| writing | means the representation or reproduction of words, symbols or other information in a visible form by any method or combination of methods, whether sent or supplied in electronic form or otherwise. | |||
| (2) | Unless the context otherwise requires, other words or expressions contained in these articles bear the same meaning as in the Companies Act 2006 as in force on the date when these articles become binding on the company. |
| (3) | Unless expressly provided otherwise, a reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, taking account of: |
| (a) | any subordinate legislation from time to time made under it; and |
| (b) | any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts. |
| (4) | Clause and paragraph headings are inserted for ease of reference only and shall not affect construction. |
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| 3. | Liability of members |
The liability of the members is limited to the amount, if any, unpaid on the shares held by them.
PART 2 - DIRECTORS
DIRECTORS’ POWERS AND RESPONSIBILITIES
| 4. | Directors’ general authority |
Subject to the articles, the directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company and for the avoidance of doubt and in accordance with the provisions of articles 8 and 12, any sole director may exercise all the powers and discretions expressed by these articles to be vested in the directors generally.
| 5. | Directors may delegate |
| (1) | Subject to the articles, the directors may delegate any of the powers which are conferred on them under the articles: |
| (a) | to such person or committee; |
| (b) | by such means (including by power of attorney); |
| (c) | to such an extent; |
| (d) | in relation to such matters or territories; and |
| (e) | on such terms and conditions; as they think fit. |
| (2) | Any such delegation shall, in the absence of express provision to the contrary in the terms of delegation, be deemed to include authority to sub-delegate all or any of the powers delegated. |
| (3) | The directors may revoke any delegation in whole or part, or alter its terms and conditions. |
| 6. | Committees |
| (1) | Committees to which the directors delegate any of their powers must follow procedures which are based as far as they are applicable on those provisions of the articles which govern the taking of decisions by directors. |
| (2) | The directors may co-opt persons other than directors onto any such committee. Any such co-opted persons may enjoy voting rights in the committee. |
| (3) | The directors may make rules of procedure for all or any committees, which prevail over rules derived from the articles if they are not consistent with them. |
Except as any such rules made by the directors otherwise require, the members of a committee shall regulate the proceedings of the committee.
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| 7. | Associate directors |
The directors may appoint any person to any office or employment having a designation or title including the word “director” and/or may attach such a designation or title to any existing office or employment with the company and may terminate any such appointment or the use of any such designation or title. The inclusion of the word “director” in the designation or title of any such office or employment shall in no way imply that the holder is a director of the company, and the holder shall not thereby be empowered in any respect to act as, or be deemed to be, a director of the company for any of the purposes of the articles.
DECISION-MAKING BY DIRECTORS
| 8. | Directors to take decisions collectively |
| (1) | The general rule about decision-making by directors is that any decision of the directors must be either a majority decision at a meeting or a decision taken in accordance with article 9. |
| (2) | If: |
| (a) | the company only has one director; and |
| (b) | no provision of the articles requires it to have more than one director, |
the general rule does not apply, and the director may take decisions without regard to any of the provisions of the articles relating to directors’ decision- making, save that he shall comply with the requirements of article 18.
| 9. | Unanimous decisions |
| (1) | A decision of the directors is taken in accordance with this article when all eligible directors indicate to each other by any means that they share a common view on a matter. |
| (2) | Such a decision may take the form of a resolution in writing where each eligible director has signed one or more copies of it, or to which each eligible director has otherwise indicated agreement in writing. |
| (3) | References in this article to eligible directors are to directors who would have been entitled to vote on the matter had it been proposed as a resolution at a directors’ meeting (but excluding any director whose vote is not to be counted in respect of the particular matter). |
| (4) | A decision may not be taken in accordance with this article if the eligible directors would not have formed a quorum at such a meeting. |
| 10. | Calling a directors’ meeting |
| (1) | Any director may call a directors’ meeting by giving notice of the meeting to the directors or by authorising the secretary (if any) to give such notice. |
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| (2) | Notice of any directors’ meeting must indicate: |
| (a) | its proposed date and time; |
| (b) | where it is to take place; and |
| (c) | if it is anticipated that directors participating in the meeting will not be in the same place, how it is proposed that they should communicate with each other during the meeting. |
| (3) | Notice of a directors’ meeting must be given to each director, but need not be in writing. |
| (4) | Notice of a directors’ meeting need not be given to directors who waive their entitlement to notice of that meeting, by giving notice to that effect to the company not more than 7 days after the date on which the meeting is held. Where such notice is given after the meeting has been held, that does not affect the validity of the meeting, or of any business conducted at it. |
| 11. | Participation in directors’ meetings |
| (1) | Subject to the articles, directors participate in a directors’ meeting, or part of a directors’ meeting, when: |
| (a) | the meeting has been called and takes place in accordance with the articles; and |
| (b) | they can each communicate to the others any information or opinions they have on any particular item of the business of the meeting. |
| (2) | In determining whether directors are participating in a directors’ meeting, it is irrelevant where any director is or how they communicate with each other. |
| (3) | If all the directors participating in a meeting are not in the same place, they may decide that the meeting is to be treated as taking place wherever any of them is. In default of such a decision, the meeting shall be deemed to take place where the largest group of those participating is assembled, or, if there is no such group, where the chairman of the meeting is. |
| 12. | Quorum for directors’ meetings |
| (1) | At a directors’ meeting, unless a quorum is participating, no proposal is to be voted on, except a proposal to call another meeting. |
| (2) | The quorum for directors’ meetings may be fixed from time to time by a decision of the directors, but it must never be less than two, and unless otherwise fixed it is two provided that: |
| (a) | if and so long as there is only one director the quorum shall be one; and |
| (b) | for the purposes of any meeting held pursuant to article 17 to authorise a director’s conflict, if there is only one director besides the director concerned, the quorum shall be one. |
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| (3) | If the total number of directors for the time being is less than the quorum required, the directors must not take any decision other than a decision: |
| (a) | to appoint further directors; or |
| (b) | to call a general meeting so as to enable the members to appoint further directors. |
| 13. | Chairing of directors’ meetings |
| (1) | The directors may appoint a director to chair their meetings. |
| (2) | The person so appointed for the time being is known as the chairman. |
| (3) | The directors may terminate the chairman’s appointment at any time. |
| (4) | If the chairman is not participating in a directors’ meeting within ten minutes of the time at which it was to start, the participating directors must appoint one of themselves to chair it. |
| 14. | Voting at directors’ meetings: general rules |
| (1) | Subject to the articles, each director participating in a directors’ meeting has one vote. |
| (2) | Subject to such disclosure as is required by law and the articles, a director who is interested in an actual or proposed transaction or arrangement with the company is to be counted as participating in the decision-making process (including for this purpose any directors’ meeting or part of a directors’ meeting) for quorum and voting purposes. |
| 15. | Chairman’s casting vote at directors’ meetings |
If the numbers of votes for and against a proposal are equal, the chairman or other director chairing the meeting has a casting vote, but this does not apply if, in accordance with the articles, the chairman or other director chairing the meeting is not to be counted as participating in the decision-making process for quorum or voting purposes.
| 16. | Alternates voting at directors’ meetings |
| (1) | A director who is also an alternate director has an additional vote on behalf of each appointor who is: |
| (a) | not participating in a directors’ meeting; and |
| (b) | would have been entitled to vote if they were participating in it. |
| 17. | Conflicts of interest |
| (1) | Subject to the articles, and provided that he has declared the nature and extent of his interest in accordance with the requirements of the Companies Acts, a director notwithstanding his office: |
| (a) | may be a party to, or otherwise interested in, any transaction or arrangement with the company or in which the company is otherwise interested; |
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| (b) | may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the company or in which the company is otherwise interested; |
| (c) | may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any parent undertaking or subsidiary undertaking of the company, or any subsidiary undertaking of any parent undertaking of the company, or any body corporate in which any such parent undertaking or subsidiary undertaking is interested; and |
| (d) | shall be entitled to participate in the decision making process for quorum and voting purposes on any resolution concerning a matter in which he has directly or indirectly, an interest or duty that conflicts or may conflict with the interest of the company |
and:
| (i) | unless the directors decide otherwise shall not, by reason of his office, be accountable to the company for any remuneration or other benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; |
| (ii) | it shall not infringe his duty to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company as a result of holding any such office or employment with or being a party to any such transaction or arrangement or otherwise being interested in any such body corporate; |
| (iii) | shall not be required to disclose to the company, or use in performing his duties as a director of the company, any information relating to any such office or employment if to make such a disclosure or use would result in a breach of a duty or obligation of confidence owed by him in relation to or in connection with that office, employment, transaction, arrangement or interest; and |
| (iv) | may absent himself from discussions, whether in meetings of the directors or otherwise, and exclude himself from the receipt or use of information, which will or may relate to that office, employment, transaction, arrangement or interest. |
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| (2) | The directors may authorise (subject to such terms and conditions, if any, as they may think fit to impose from time to time, and subject always to their right to vary or terminate such authorisation, to the fullest extent permitted by law): |
| (a) | any matter which would otherwise result in a director infringing his duty to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company and which may reasonably be regarded as likely to give rise to a conflict of interest (including a conflict of interest and duty or conflict of duties); and |
| (b) | a director to accept or continue in any office, employment or position in addition to his office as a director of the company (not being an office, employment or position which the director is authorised to hold pursuant to article 17(1)(b) and/or article 17(1)(c) and may authorise the manner in which a conflict of interest arising out of such matter, office, employment or position may be dealt with, either before or at the time that such a conflict of interest arises. |
| (3) | Any authorisation pursuant to article 17(2) is effective only if: |
| (a) | the matter in question was proposed in writing for consideration at a directors’ meeting, in accordance with normal procedures or in such other manner as the directors may approve; |
| (b) | any requirement as to the quorum at the meeting at which the matter is considered is met without counting the director in question or any other interested director; and |
| (c) | the matter was agreed to without their voting or would have been agreed to if their votes had not been counted. |
| (4) | In relation to any matter, office, employment or position that has been authorised pursuant to article 17(2) (subject to such terms and conditions, if any, as the directors may think fit to impose from time to time, and subject always to their right to vary or terminate such authorisation or the permissions set out below): |
| (a) | the director shall not be required to disclose to the company, or use in performing his duties as a director of the company, any information relating to such matter, or such office, employment or position, if to make such a disclosure or use would result in a breach of a duty or obligation of confidence owed by him in relation to or in connection with that matter, or that office, employment or position; |
| (b) | the director may absent himself from discussions, whether in directors’ meetings or otherwise, and exclude himself from the receipt or use of information, which will or may relate to that matter, or that office, employment or position; and |
| (c) | the director shall not, by reason of his office as a director of the company, be accountable to the company for any remuneration or other benefit which he derives from any such matter, or from any such office, employment or position. |
| (5) | Subject to article 17(6) below, if a question arises at a meeting of directors or of a committee of directors as to the right of a director to participate in the meeting (or part of the meeting) for voting or quorum purposes, the question may, before the conclusion of the meeting, be referred to the chairman, whose ruling in relation to any director other than the chairman is to be final and conclusive. |
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| 18. | Records of decisions to be kept |
The directors must ensure that the company keeps a record, in writing, for at least 10 years from the date of the decision recorded, of every unanimous or majority decision taken by the directors.
| 19. | Directors’ discretion to make further rules |
Subject to the articles, the directors may make any rule which they think fa about how they take decisions, and about how such rules are to be recorded or communicated to directors.
APPOINTMENT OF DIRECTORS
| 20. | Methods of appointing and removing directors |
| (1) | The holder or holders for the time being of more than one half in nominal value of the shares giving the right to attend and vote at a general meeting of the company or the parent company (if any) may at any time and from time to time appoint any person who is willing to act as a director, and is permitted by law to do so, to be a director, either to fill a vacancy or as an additional director, and may remove any director from office. |
| (2) | Any appointment or removal of a director in accordance with article 20(1) must be effected by notice in writing to the company signed by the person making the appointment or removal or in any other manner approved by the directors. |
| (3) | The directors shall also have the power to appoint any person who is willing to act as a director, and is permitted by law to do so, to be a director, either to fill a vacancy or as an additional director. |
| 21. | Termination of director’s appointment |
| (1) | A person ceases to be a director as soon as: |
| (a) | that person ceases to be a director by virtue of any provision of the Companies Act 2006 or is prohibited from being a director by law; |
| (b) | a bankruptcy order is made against that person; |
| (c) | a composition is made with that person’s creditors generally in satisfaction of that person’s debts; |
| (d) | a registered medical practitioner who is treating that person gives a written opinion to the company stating that that person has become physically or mentally incapable of acting as a director and may remain so for more than three months; |
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| (e) | by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have; |
| (f) | notification is received by the company from the director that the director is resigning from office as director, and such resignation has taken effect in accordance with its terms; |
| (g) | that person is convicted of a criminal offence involving fraud or dishonesty and the directors resolve that he shall for that reason cease to be a director; or |
| (h) | that person is removed as a director in accordance with article 20(1). |
| 22. | Directors’ remuneration |
| (1) | Directors may undertake any services for the company that the directors decide. |
| (2) | Directors are entitled to such remuneration as the directors determine: |
| (a) | for their services to the company as directors; and |
| (b) | for any other service which they undertake for the company. |
| (3) | Subject to the articles, a directors remuneration may: |
| (a) | take any form; and |
| (b) | include any arrangements in connection with the payment of a pension, allowance or gratuity, or any death, sickness or disability benefits, to or in respect of that director. |
| (4) | Unless the directors decide otherwise, directors’ remuneration accrues from day to day. |
| 23. | Directors’ expenses |
The company may pay any reasonable expenses which the directors properly incur in connection with their attendance at:
| (a) | meetings of directors or committees of directors; or |
| (b) | general meetings; or |
| (c) | separate meetings of the holders of any class of shares or of debentures of the company; or |
| (d) | otherwise in connection with the exercise of their powers and the discharge of their responsibilities in relation to the company. |
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ALTERNATE DIRECTORS
| 24. | Appointment and removal of alternates |
| (1) | Any director (the “appointor”) may appoint as an alternate any other director, or any other person who is willing to act as a director, and is permitted by law to do so, and who has been approved by decision of the directors, to: |
| (a) | exercise that directors powers; and |
| (b) | carry out that directors responsibilities |
in relation to the taking of decisions by the directors in the absence of the alternate’s appointor.
| (2) | Any appointment or removal of an alternate must be effected by notice in writing to the company signed by the appointor or in any other manner approved by the directors. |
| 25. | Rights and responsibilities of alternate directors |
| (1) | An alternate director may act as alternate director for more than one director and has the same rights in relation to any decision of the directors as the alternate’s appointor. |
| (2) | Except as the articles specify otherwise, alternate directors: |
| (a) | are deemed for all purposes to be directors; |
| (b) | are liable for their own acts and omissions; |
| (c) | are subject to the same restrictions as their appointors; and |
| (d) | are not deemed to be agents of or for their appointors. |
| (3) | A person who is an alternate director and also a director is entitled, in the absence of his appointor, to a separate vote on behalf of his appointor, in addition to his own vote, on any decision of the directors, but shall not be counted as more than one director for the purposes of determining whether a quorum is present. |
| (4) | A person who is an alternate director but not a director: |
| (a) | may be counted as participating for the purposes of determining whether a quorum is present (but only if that person’s appointor is not participating); |
| (b) | may participate in taking a decision in accordance with article 9 (but only if that person’s appointor has not so participated); and |
| (c) | shall not be counted as more than one director for the purposes of 25(4)(a) and 25(4)(b). |
| (5) | An alternate director is not entitled to receive any remuneration from the company for serving as an alternate director except such part of the alternate’s appointor’s remuneration as the appointor may direct by notice in writing made to the company. |
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| 26. | Termination of alternate directorship |
An alternate director’s appointment as an alternate terminates:
| (a) | when the alternate’s appointor revokes the appointment by notice to the company in writing specifying when it is to terminate; |
| (b) | on the occurrence in relation to the alternate of any event which, if it occurred in relation to the alternate’s appointor, would result in the termination of the appointor’s appointment as a director; |
| (c) | on the death of the alternate’s appointor; |
| (d) | when the alternate’s appointor’s appointment as a director terminates; or |
| (e) | when the alternate director resigns his office by notice to the company. |
SECRETARY
| 27. | Appointment and removal of secretary |
| (1) | Subject to the articles, the secretary shall be appointed by the holder or holders for the time being of more than one half in nominal value of the shares giving the right to attend and vote at a general meeting of the company or the parent company (if any) or by the directors for such term, at such remuneration and upon such conditions as they may think fit and any secretary so appointed may be removed by such appointor(s). |
| (2) | Two or more joint secretaries, each of whom shall have full authority to act alone and independently of each other, may be appointed pursuant to the provisions of this article 27. |
PART 3 - SHARES AND DISTRIBUTIONS
ISSUE OF SHARES
| 28. | Powers to allot and issue shares including different classes of shares |
| (1) | Subject to the articles, but without prejudice to the rights attached to any existing share, the company may issue shares with such rights or restrictions as may be determined by ordinary resolution or, subject to and in default of such determination, as the directors may determine. |
| (2) | The company may issue shares which are to be redeemed, or are liable to be redeemed at the option of the company or the holder, and the directors may determine the terms, conditions and manner of redemption of any such shares. |
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| (3) | Subject to the requirements of the Companies Acts and to any resolution of the Company passed in a general meeting pursuant to those provisions: |
| (a) | all shares for the time being in the capital of the company (whether forming part of the original or any increased share capital) shall be at the disposal of the directors; and |
| (b) | the directors may allot (with or without conferring a right of renunciation), grant options over, or otherwise dispose of them to such persons on such terms and conditions and at such times as they think fit. |
| (4) | The pre-emption provisions in section 561 of the Companies Acts and the provisions of sub-sections 562(1) to 562(5) inclusive of the Companies Acts shall not apply to any allotment of the Company’s equity securities. |
| 29. | Payment of commissions on subscription for shares |
| (1) | The company may pay any person a commission in consideration for that person: |
| (a) | subscribing, or agreeing to subscribe, for shares; or |
| (b) | procuring, or agreeing to procure, subscriptions for shares. |
| (2) | Any such commission may be paid: |
| (a) | in cash, or in fully paid or partly paid shares or other securities, or partly in one way and partly in the other; and |
| (b) | in respect of a conditional or an absolute subscription. |
INTERESTS IN SHARES
| 30. | Company not bound by less than absolute interests |
Except as required by law, no person is to be recognised by the company as holding any share upon any trust, and except as otherwise required by law or the articles, the company is not in any way to be bound by or recognise any interest in a share other than the holders absolute ownership of it and all the rights attaching to it.
SHARE CERTIFICATES
| 31. | Certificates to be issued |
| (1) | The company must issue each member with one or more certificates in respect of the shares which that member holds. |
| (2) | Except as otherwise specified in the articles, all certificates must be issued free of charge. |
| (3) | No certificate may be issued in respect of shares of more than one class. |
| (4) | If more than one person holds a share, only one certificate may be issued in respect of it. |
| 32. | Contents and execution of share certificates |
| (1) | Every certificate must specify: |
| (a) | in respect of how many shares, of what class, it is issued; |
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| (b) | the nominal value of those shares; |
| (c) | the amount paid up on them; and |
| (d) | any distinguishing numbers assigned to them. |
| (2) | Certificates must: |
| (a) | have affixed to them the company’s common seal; or |
| (b) | be otherwise executed in accordance with the Companies Acts. |
| 33. | Replacement share certificates |
| (1) | If a certificate issued in respect of a members shares is: |
| (a) | damaged or defaced; |
| (b) | said to be lost, stolen or destroyed; or |
| (c) | that member is entitled to be issued with a replacement certificate in respect of the same shares. |
| (2) | A member exercising the right to be issued with such a replacement certificate: |
| (a) | may at the same time exercise the right to be issued with a single certificate or separate certificates; |
| (b) | must return the certificate which is to be replaced to the company if it is damaged or defaced; and |
| (c) | must comply with such conditions as to evidence, indemnity and the payment of a reasonable fee as the directors decide. |
PARTLY PAID SHARES
| 34. | Company’s lien over partly paid shares |
| (1) | The company has a lien (the “company’s lien”) over every share which is partly paid for any part of: |
| (a) | that share’s nominal value; and |
| (b) | any premium at which it was issued |
which has not been paid to the company, and which is payable immediately or at some time in the future, whether or not a call notice has been sent in respect of it.
| (2) | The company’s lien over a share: |
| (a) | takes priority over any third party’s interest in that share; and |
| (b) | extends to any dividend or other money payable by the company in respect of that share and (if the lien is enforced and the share is sold by the company) the proceeds of sale of that share. |
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| (3) | The directors may at any time decide that a share which is or would otherwise be subject to the company’s lien shall not be subject to it, either wholly or in part. |
| 35. | Enforcement of the company’s lien |
| (1) | Subject to the provisions of this article, if: |
| (a) | a lien enforcement notice has been given in respect of a share; and |
| (b) | the person to whom the notice was given has failed to comply with it the company may sell that share in such manner as the directors decide. |
| (2) | A lien enforcement notice: |
| (a) | may only be given in respect of a share which is subject to the company’s lien, in respect of which a sum is payable and the due date for payment of that sum has passed; |
| (b) | must specify the share concerned; |
| (c) | must require payment of the sum payable within 14 days of the notice; |
| (d) | must be addressed either to the holder of the share or to a transmittee of that holder; and |
| (e) | must state the company’s intention to sell the share if the notice is not complied with. |
| (3) | Where shares are sold under this article: |
| (a) | the directors may authorise any person to execute an instrument of transfer of the shares to the purchaser or to a person nominated by the purchaser; and |
| (b) | the transferee is not bound to see to the application of the consideration, and the transferee’s title is not affected by any irregularity in or invalidity of the process leading to the sale. |
| (4) | The net proceeds of any such sale (after payment of the costs of sale and any other costs of enforcing the lien) must be applied: |
| (a) | first, in payment of so much of the sum for which the lien exists as was payable at the date of the lien enforcement notice; |
| (b) | second, to the person entitled to the shares at the date of the sale, but only after the certificate for the shares sold has been surrendered to the company for cancellation or a suitable indemnity has been given for any lost certificates, and subject to a lien equivalent to the company’s lien over the shares before the sale for any money payable in respect of the shares after the date of the lien enforcement notice. |
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| (5) | A statutory declaration by a director or the secretary (if any) that the declarant is a director or the secretary and that a share has been sold to satisfy the company’s lien on a specified date: |
| (a) | is conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share; and |
| (b) | subject to compliance with any other formalities of transfer required by the articles or by law, constitutes a good title to the share. |
| 36. | Call notices |
| (1) | Subject to the articles and the terms on which shares are allotted, the directors may send a notice (a “call notice”) to a member requiring the member to pay the company a specified sum of money (a “call”) which is payable in respect of shares which that member holds at the date when the directors decide to send the call notice. |
| (2) | A call notice: |
| (a) | may not require a member to pay a call which exceeds the total sum unpaid on that members shares (whether as to the share’s nominal value or any amount payable to the company by way of premium); |
| (b) | must state when and how any call to which it relates it is to be paid; and |
| (c) | may permit or require the call to be paid by instalments. |
| (3) | A member must comply with the requirements of a call notice, but no member is obliged to pay any call before 14 days have passed since the notice was sent. |
| (4) | Before the company has received any call due under a call notice the directors may: |
| (a) | revoke it wholly or in part; or |
| (b) | specify a later time for payment than is specified in the notice by a further notice in writing to the member in respect of whose shares the call is made. |
| 37. | Liability to pay calls |
| (1) | Liability to pay a call is not extinguished or transferred by transferring the shares in respect of which it is required to be paid. |
| (2) | Joint holders of a share are jointly and severally liable to pay all calls in respect of that share. |
| (3) | Subject to the terms on which shares are allotted, the directors may, when issuing shares, provide that call notices sent to the holders of those shares may require them: |
| (a) | to pay calls which are not the same; or |
| (b) | to pay calls at different times. |
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| 38. | When call notice need not be issued |
| (1) | A call notice need not be issued in respect of sums which are specified, in the terms on which a share is issued, as being payable to the company in respect of that share (whether in respect of nominal value or premium): |
| (a) | on allotment; |
| (b) | on the occurrence of a particular event; or |
| (c) | on a date fixed by or in accordance with the terms of issue. |
| (2) | But if the due date for payment of such a sum has passed and it has not been paid, the holder of the share concerned is treated in all respects as having failed to comply with a call notice in respect of that sum, and is liable to the same consequences as regards the payment of interest and forfeiture. |
| 39. | Failure to comply with call notice: automatic consequences |
| (1) | If a person is liable to pay a call and fails to do so by the call payment date: |
| (a) | the directors may issue a notice of intended forfeiture to that person; and |
| (b) | until the call is paid, that person must pay the company interest on the call from the call payment date at the relevant rate. |
| (2) | For the purposes of this article: |
| (a) | the “call payment date” is the time when the call notice states that a call is payable, unless the directors give a notice specifying a later date, in which case the “call payment date” is that later date; |
| (b) | the “relevant rate” is: |
| (i) | the rate fixed by the terms on which the share in respect of which the call is due was allotted; |
| (ii) | such other rate as was fixed in the call notice which required payment of the call, or has otherwise been determined by the directors; or |
| (iii) | if no rate is fixed in either of these ways, 5 per cent per annum |
| (3) | The relevant rate must not exceed by more than 5 percentage points the base lending rate most recently set by the Monetary Policy Committee of the Bank of England in connection with its responsibilities under Part 2 of the Bank of England Act 1998. |
| (4) | The directors may waive any obligation to pay interest on a call wholly or in part. |
| 40. | Notice of intended forfeiture |
| (1) | A notice of intended forfeiture: |
| (a) | may be sent in respect of any share in respect of which a call has not been paid as required by a call notice; |
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| (b) | must be sent to the holder of that share or to a transmittee of that holder; |
| (c) | must require payment of the call and any accrued interest and all expenses that may have been incurred by the company by reason of such non-payment by a date which is not less than 14 days after the date of the notice; |
| (d) | must state how the payment is to be made; and |
| (e) | must state that if the notice is not complied with, the shares in respect of which the call is payable will be liable to be forfeited. |
| 41. | Directors’ power to forfeit shares |
If a notice of intended forfeiture is not complied with before the date by which payment of the call is required in the notice of intended forfeiture, the directors may decide that any share in respect of which it was given is forfeited, and the forfeiture is to include all dividends or other moneys payable in respect of the forfeited shares and not paid before the forfeiture.
| 42. | Effect of forfeiture |
| (1) | Subject to the articles, the forfeiture of a share extinguishes: |
| (a) | all interests in that share, and all claims and demands against the company in respect of it; and |
| (b) | all other rights and liabilities incidental to the share as between the person whose share it was prior to the forfeiture and the company. |
| (2) | Any share which is forfeited in accordance with the articles: |
| (a) | is deemed to have been forfeited when the directors decide that it is forfeited; |
| (b) | is deemed to be the property of the company; and |
| (c) | may be sold, re-allotted or otherwise disposed of as the directors think fit. |
| (3) | If a person’s shares have been forfeited: |
| (a) | the company must send that person notice that forfeiture has occurred and record it in the register of members; |
| (b) | that person ceases to be a member in respect of those shares; |
| (c) | that person must surrender the certificate for the shares forfeited to the company for cancellation; |
| (d) | that person remains liable to the company for all sums payable by that person under the articles at the date of forfeiture in respect of those shares, including any interest (whether accrued before or after the date of forfeiture); and |
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| (e) | the directors may waive payment of such sums wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or for any consideration received on their disposal. |
| (4) | At any time before the company disposes of a forfeited share, the directors may decide to cancel the forfeiture on payment of all calls, interest and expenses due in respect of it and on such other terms as they think fit. |
| 43. | Procedure following forfeiture |
| (1) | If a forfeited share is to be disposed of by being transferred, the company may receive the consideration for the transfer and the directors may authorise any person to execute the instrument of transfer. |
| (2) | A statutory declaration by a director or the secretary (if any) that the declarant is a director or the secretary and that a share has been forfeited on a specified date: |
| (a) | is conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share; and |
| (b) | subject to compliance with any other formalities of transfer required by the articles or by law, constitutes a good title to the share. |
| (3) | A person to whom a forfeited share is transferred is not bound to see to the application of the consideration (if any) nor is that person’s title to the share affected by any irregularity in or invalidity of the process leading to the forfeiture or transfer of the share. |
| (4) | If the company sells a forfeited share, the person who held it prior to its forfeiture is entitled to receive from the company the proceeds of such sale, net of any commission, and excluding any amount which: |
| (a) | was, or would have become, payable; and |
| (b) | had not, when that share was forfeited, been paid by that person in respect of that share but no interest is payable to such a person in respect of such proceeds and the company is not required to account for any money earned on them. |
| 44. | Surrender of shares |
(1) A member may surrender any share:
| (a) | in respect of which the directors may issue a notice of intended forfeiture; |
| (b) | which the directors may forfeit; or |
| (c) | which has been forfeited. |
| (2) | The directors may accept the surrender of any such share. |
| (3) | The effect of surrender on a share is the same as the effect of forfeiture on that share. |
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| (4) | A share which has been surrendered may be dealt with in the same way as a share which has been forfeited. |
TRANSFER AND TRANSMISSION OF SHARES
| 45. | Transfers of shares |
| (1) | Shares may be transferred by means of an instrument of transfer in any usual form or any other form approved by the directors, which is executed by or on behalf of: |
| (a) | the transferor; and |
| (b) | (if any of the shares is partly paid) the transferee. |
| (2) | No fee may be charged for registering any instrument of transfer or other document relating to or affecting the title to any share. |
| (3) | The company may retain any instrument of transfer which is registered. |
| (4) | The transferor remains the holder of a share until the transferee’s name is entered in the register of members as holder of it. |
| (5) | The directors shall register a transfer of shares which is: |
| (a) | lodged at the office or such other place as the directors have appointed; |
| (b) | accompanied by the certificate for the shares to which it relates, or such other evidence as the directors may reasonably require to show the transferor’s right to make the transfer, or evidence of the right of someone other than the transferor to make the transfer on the transferors behalf; and |
| (c) | presented for registration duly stamped or is an exempt transfer within the Stock Transfer Act 1982 and may, in their absolute discretion, refuse to register any other transfer of shares. |
| (6) | If the directors refuse to register the transfer of a share, the instrument of transfer must be returned to the transferee with the notice of refusal unless they suspect that the proposed transfer may be fraudulent. |
| 46. | Transmission of shares |
| (1) | If title to a share passes to a transmittee, the company may only recognise the transmittee as having any title to that share. |
| (2) | Nothing in these articles releases the estate of a deceased member from any liability in respect of a share solely or jointly held by that member. |
| 47. | Transmittees’ rights |
| (1) | A transmittee who produces such evidence of entitlement to shares as the directors may properly require: |
| (a) | may, subject to the articles, choose either to become the holder of those shares or to have them transferred to another person; and |
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| (b) | subject to the articles, and pending any transfer of the shares to another person, has the same rights as the holder had. |
| (2) | But transmittees do not have the right to attend or vote at a general meeting, or agree to a proposed written resolution, in respect of shares to which they are entitled, by reason of the holders death or bankruptcy or otherwise, unless they become the holders of those shares. |
| 48. | Exercise of transmittees’ rights |
| (1) | Transmittees who wish to become the holders of shares to which they have become entitled must notify the company in writing of that wish. |
| (2) | If the transmittee wishes to have a share transferred to another person, the transmittee must execute an instrument of transfer in respect of it. |
| (3) | Any transfer made or executed under this article is to be treated as if it were made or executed by the person from whom the transmittee has derived rights in respect of the share, and as if the event which gave rise to the transmission had not occurred. |
| 49. | Transmittees bound by prior notices |
| (1) | If a notice is given to a member in respect of shares and a transmittee is entitled to those shares, the transmittee is bound by the notice if it was given to the member before the transmittee’s name has been entered in the register of members. |
DISTRIBUTIONS
| 50. | Procedure for declaring dividends |
| (1) | The company may by ordinary resolution declare dividends, and the directors may decide to pay interim dividends. |
| (2) | A dividend must not be declared unless the directors have made a recommendation as to its amount. Such a dividend must not exceed the amount recommended by the directors. |
| (3) | No dividend may be declared or paid unless it is in accordance with members’ respective rights. |
| (4) | Unless the members’ resolution to declare or directors’ decision to pay a dividend, or the terms on which shares are issued, specify otherwise, it must be paid by reference to each member’s holding of shares on the date of the resolution or decision to declare or pay it. |
| (5) | If the company’s share capital is divided into different classes, no interim dividend may be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. |
| (6) | The directors may pay at intervals any dividend payable at a fixed rate if it appears to them that the profits available for distribution justify the payment. |
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| (7) | If the directors act in good faith, they do not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of an interim dividend on shares with deferred or non-preferred rights. |
| 51. | Calculation of dividends |
| (1) | Except as otherwise provided by the articles or the rights attached to shares, all dividends must be: |
| (a) | declared and paid according to the amounts paid up on the shares on which the dividend is paid; and |
| (b) | apportioned and paid proportionately to the amounts paid up on the shares during any portion or portions of the period in respect of which the dividend is paid. |
| (2) | If any share is issued on terms providing that it ranks for dividend as from a particular date, that share ranks for dividend accordingly. |
| 52. | Payment of dividends and other distributions |
| (1) | Where a dividend or other sum which is a distribution is payable in respect of a share, it must be paid by one or more of the following means: |
| (a) | transfer to a bank or building society account specified by the distribution recipient either in writing or as the directors may otherwise decide; |
| (b) | sending a cheque made payable to the distribution recipient by post to the distribution recipient at the distribution recipient’s registered address (if the distribution recipient is a holder of the share), or (in any other case) to an address specified by the distribution recipient either in writing or as the directors may otherwise decide; |
| (c) | sending a cheque made payable to such person by post to such person at such address as the distribution recipient has specified either in writing or as the directors may otherwise decide; or |
| (d) | any other means of payment as the directors agree with the distribution recipient either in writing; or |
| (e) | by such other means as the directors decide. |
| (2) | In the articles, the “distribution recipient” means, subject to article 77, in respect of a share in respect of which a dividend or other sum is payable: |
| (a) | the holder of the share; or |
| (b) | if the share has two or more joint holders, whichever of them is named first in the register of members; or |
| (c) | if the holder is no longer entitled to the share by reason of death or bankruptcy, or in consequence of the merger or consolidation of any holder being a corporation, or otherwise by operation of law, the transmittee. |
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| 53. | Deductions from distributions in respect of sums owed to the company |
| (1) | If: |
| (a) | a share is subject to the company’s lien; and |
| (b) | the directors are entitled to issue a lien enforcement notice in respect of it they may, instead of issuing a lien enforcement notice, deduct from any dividend or other sum payable in respect of the share any sum of money which is payable to the company in respect of that share to the extent that they are entitled to require payment under a lien enforcement notice. |
| (2) | Money so deducted must be used to pay any of the sums payable in respect of that share. |
| (3) | The company must notify the distribution recipient in writing of: |
| (a) | the fact and amount of any such deduction; |
| (b) | any non-payment of a dividend or other sum payable in respect of a share resulting from any such deduction; and |
| (c) | how the money deducted has been applied. |
| 54. | No interest on distributions |
| (1) | The company shall not be obliged to pay interest on any dividend or other sum payable in respect of a share unless otherwise provided by: |
| (a) | the terms on which the share was issued; or |
| (b) | the provisions of another agreement between the holder of that share and the company. |
| 55. | Unclaimed distributions |
| (1) | All dividends or other sums which are: |
| (a) | payable in respect of shares; and |
| (b) | unclaimed after having been declared or become payable may be invested or otherwise made use of by the directors for the benefit of the company until claimed. |
| (2) | The payment of any such dividend or other sum into a separate account does not make the company a trustee in respect of it. |
| (3) | If: |
| (a) | twelve years have passed from the date on which a dividend or other sum became due for payment; and |
| (b) | the distribution recipient has not claimed it the distribution recipient is no longer entitled to that dividend or other sum and it ceases to remain owing by the company. |
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| 56. | Non-cash distributions |
| (1) | Subject to the terms of issue of the share in question: |
| (a) | the company may, by ordinary resolution on the recommendation of the directors; and |
| (b) | (in the case of an interim dividend) the directors may decide to pay all or part of a dividend or other distribution payable in respect of a share by transferring non-cash assets of equivalent value (including, without limitation, shares or other securities in any company). |
| (2) | For the purposes of paying a non-cash distribution, the directors may make whatever arrangements they think fit, including, where any difficulty arises regarding the distribution: |
| (a) | fixing the value of any assets; |
| (b) | paying cash to any distribution recipient on the basis of that value in order to adjust the rights of recipients; and |
| (c) | vesting any assets in trustees. |
| 57. | Waiver of distributions |
| (1) | Distribution recipients may waive their entitlement to a dividend or other distribution payable in respect of a share by giving the company notice in writing to that effect prior to the declaration of that dividend or distribution, but if: |
| (a) | the share has more than one holder; or |
| (b) | more than one person is entitled to the share, whether by reason of the death or bankruptcy of one or more joint holders, or otherwise the notice is not effective unless it is expressed to be given, and signed, by all the holders or persons otherwise entitled to the share. |
CAPITALISATION OF PROFITS
| 58. | Authority to capitalise and appropriation of capitalised sums |
| (1) | Subject to the articles, the directors may, if they are so authorised by an ordinary resolution: |
| (a) | decide to capitalise any profits of the company (whether or not they are available for distribution) which are not required for paying a preferential dividend, or any sum standing to the credit of the company’s share premium account or capital redemption reserve; and |
| (b) | appropriate any sum which they so decide to capitalise (a “capitalised sum”) to the persons who would have been entitled to it if it were distributed by way of dividend (the “persons entitled”) and in the same proportions. |
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| (2) | Capitalised sums must be applied: |
| (a) | on behalf of the persons entitled; and |
| (b) | in the same proportions as a dividend would have been distributed to them. |
| (3) | Any capitalised sum may be applied in paying up new shares of a nominal amount equal to the capitalised sum which are then allotted credited as fully paid to the persons entitled or as they may direct. |
| (4) | A capitalised sum which was appropriated from profits available for distribution may be applied: |
| (a) | in or towards paying up any amounts unpaid on existing shares held by the persons entitled; or |
| (b) | in paying up new debentures of the company which are then allotted credited as fully paid to the persons entitled or as they may direct. |
| (5) | Subject to the articles, the directors may: |
| (a) | apply capitalised sums in accordance with paragraphs (3) and (4) partly in one way and partly in another; |
| (b) | make such arrangements as they think fit to deal with shares or debentures becoming distributable in fractions under this article (including the issuing of fractional certificates or the making of cash payments); and |
authorise any person to enter into an agreement with the company on behalf of all the persons entitled which is binding on them in respect of the allotment of shares and debentures to them under this article.
PART 4 - DECISION-MAKING BY MEMBERS
ORGANISATION OF GENERAL MEETINGS
| 59. | Attendance and speaking at general meetings |
| (1) | A person is able to exercise the right to speak at a general meeting when that person is in a position to communicate to all those attending the meeting, during the meeting, any information or opinions which that person has on the business of the meeting. |
| (2) | A person is able to exercise the right to vote at a general meeting when: |
| (a) | that person is able to vote, during the meeting, on resolutions put to the vote at the meeting; and |
| (b) | that person’s vote can be taken into account in determining whether or not such resolutions are passed at the same time as the votes of all the other persons attending the meeting. |
| (3) | The directors may make whatever arrangements they consider appropriate to enable those attending a general meeting to exercise their rights to speak or vote at it. |
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| (4) | In determining attendance at a general meeting, it is immaterial whether any two or more members attending it are in the same place as each other. |
| (5) | Two or more persons who are not in the same place as each other attend a general meeting if their circumstances are such that if they have (or were to have) rights to speak and vote at that meeting, they are (or would be) able to exercise them. |
| 60. | Quorum for general meetings |
| (1) | No business other than the appointment of the chairman of the meeting is to be transacted at a general meeting if the persons attending it do not constitute a quorum. |
| (2) | Save in the case of a company having only one member, two qualifying persons present at a meeting (in person or by proxy) shall be a quorum, unless each is a qualifying person only because: |
| (a) | he is duly authorised to act as the representative of a corporation in relation to the meeting and they are representatives of the same corporation; or |
| (b) | he is appointed as proxy of a member in relation to the meeting and they are proxies of the same member. |
| (3) | In the case of a company having only one member, one qualifying person present at a meeting shall be a quorum. |
| (4) | In this article, a “qualifying person” means: |
| (a) | an individual who is a member of the company; |
| (b) | a person duly authorised to act as the representative of a corporation in relation to the meeting; or |
| (c) | a person appointed as a proxy of a member in relation to the meeting |
| 61. | Chairing general meetings |
| (1) | If the directors have appointed a chairman, the chairman shall chair general meetings if present and willing to do so. |
| (2) | If the directors have not appointed a chairman, or if the chairman is unwilling to chair the meeting or is not present within ten minutes of the time at which a meeting was due to start: |
| (a) | the directors present; or |
| (b) | (if no directors are present), the meeting must appoint a director or member to chair the meeting, and the appointment of the chairman of the meeting must be the first business of the meeting. |
| (3) | The person chairing a meeting in accordance with this article is referred to as the “chairman of the meeting”. |
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| 62. | Attendance and speaking by directors and non-members |
| (1) | Directors may attend and speak at general meetings, whether or not they are members. |
| (2) | The chairman of the meeting may permit other persons who are not: |
| (a) | members of the company; or |
| (b) | otherwise entitled to exercise the rights of members in relation to general meetings to attend and speak at a general meeting. |
| 63. | Adjournment |
| (1) | If the persons attending a general meeting within half an hour of the time at which the meeting was due to start do not constitute a quorum, or if during a meeting a quorum ceases to be present, the chairman of the meeting must adjourn it. |
| (2) | The chairman of the meeting may adjourn a general meeting at which a quorum is present if: |
| (a) | the meeting consents to an adjournment; or |
| (b) | it appears to the chairman of the meeting that an adjournment is necessary to protect the safety of any person attending the meeting or ensure that the business of the meeting is conducted in an orderly manner. |
| (3) | The chairman of the meeting must adjourn a general meeting if directed to do so by the meeting. |
| (4) | When adjourning a general meeting, the chairman of the meeting must: |
| (a) | either specify the time and place to which it is adjourned or state that it is to continue at a time and place to be fixed by the directors; and |
| (b) | have regard to any directions as to the time and place of any adjournment which have been given by the meeting. |
| (5) | If the continuation of an adjourned meeting is to take place more than 14 days after it was adjourned, the company must give at least 7 clear days’ notice of it (that is, excluding the day of the adjourned meeting and the day on which the notice is given): |
| (a) | to the same persons to whom notice of the company’s general meetings is required to be given; and |
| (b) | containing the same information which such notice is required to contain. |
| (6) | No business may be transacted at an adjourned general meeting which could not properly have been transacted at the meeting if the adjournment had not taken place. |
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VOTING AT GENERAL MEETINGS
| 64. | Voting: general |
| (1) | A resolution put to the vote of a general meeting must be decided on a show of hands unless a poll is duly demanded in accordance with the articles. |
| (2) | Subject to any rights or restrictions attached to any shares, on a show of hands: every member present in person has one vote; and every proxy present who has been duly appointed by one or more members entitled to vote on the resolution has one vote. |
| (3) | Subject to any rights or restrictions attached to any shares, on a poll: |
| (a) | every member has one vote for every share of which he is the holder; and |
| (b) | all or any of the voting rights of a member may be exercised by one or more duly appointed proxies (but so that, where a member appoints more than one proxy, the proxies (taken together) shall not exercise more extensive voting rights than could be exercised by the member in person). |
| 65. | Errors and disputes |
| (1) | No objection may be raised to the qualification of any person voting at a general meeting except at the meeting or adjourned meeting at which the vote objected to is tendered, and every vote not disallowed at the meeting is valid. |
| (2) | Any such objection must be referred to the chairman of the meeting, whose decision is final. |
| 66. | Poll votes |
| (1) | A poll on a resolution may be demanded: |
| (a) | in advance of the general meeting where it is to be put to the vote; or |
| (b) | at a general meeting, either before a show of hands on that resolution or immediately after the result of a show of hands on that resolution is declared. |
| (2) | A poll may be demanded by: |
| (a) | the chairman of the meeting; |
| (b) | the directors; or |
| (c) | any member (being an individual) present in person or by proxy or (being a corporation) present by a duly authorised representative or by proxy and having the right to vote on the resolution. |
| (3) | A demand for a poll may be withdrawn if: |
| (a) | the poll has not yet been taken; and |
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| (b) | the chairman of the meeting consents to the withdrawal. |
| (4) | Polls must be taken at such time and in such manner as the chairman of the meeting directs. |
| 67. | Content of proxy notices |
| (1) | Proxies may only validly be appointed by a notice in writing (a “proxy notice”) which: |
| (a) | states the name and address of the member appointing the proxy; |
| (b) | identifies the person appointed to be that members proxy and the general meeting in relation to which that person is appointed; |
| (c) | is signed by or on behalf of the member appointing the proxy, or is authenticated in such manner as the directors may determine; and |
| (d) | is delivered to the company in accordance with the articles and any instructions contained in the notice of the general meeting to which they relate. |
| (2) | The company may require proxy notices to be delivered in a particular form, and may specify different forms for different purposes. |
| (3) | Proxy notices may specify how the proxy appointed under them is to vote (or that the proxy is to abstain from voting) on one or more resolutions. |
| (4) | Unless a proxy notice indicates otherwise, it must be treated as: |
| (a) | allowing the person appointed under it as a proxy discretion as to how to vote on any ancillary or procedural resolutions put to the meeting; and |
| (b) | appointing that person as a proxy in relation to any adjournment of the general meeting to which it relates as well as the meeting itself. |
| 68. | Delivery of proxy notices |
| (1) | A person who is entitled to attend, speak or vote (either on a show of hands or on a poll) at a general meeting remains so entitled in respect of that meeting or any adjournment of it, even though a valid proxy notice has been delivered to the company by or on behalf of that person. |
| (2) | Subject to articles 68(3) and 68(4), a proxy notice must be delivered to the company or to such other place as is specified in the notice convening the meeting or in any instrument of proxy sent out by the company in relation to the meeting not less than 48 hours before the start of the meeting or adjourned meeting to which it relates. |
| (3) | In the case of a poll taken more than 48 hours after it is demanded, the notice must be delivered to the company or to such other place as is specified in the notice convening the meeting or in any instrument of proxy sent out by the company in relation to the meeting not less than 24 hours before the time appointed for the taking of the poll. |
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| (4) | In the case of a poll not taken during the meeting but taken not more than 48 hours after it was demanded, the proxy notice must be delivered in accordance with article 68(2) or at the meeting at which the poll was demanded to the chairman, the secretary (if any) or any director. |
| (5) | An appointment under a proxy notice may be revoked by delivering to the company a notice in writing given by or on behalf of the person by whom or on whose behalf the proxy notice was given. |
| (6) | A notice revoking a proxy appointment only takes effect if it is delivered before the start of the meeting or adjourned meeting to which it relates. |
| (7) | If a proxy notice is not signed by the person appointing the proxy, it must be accompanied by written evidence of the authority of the person who signed it to sign it on the appointor’s behalf. |
| 69. | Amendments to resolutions |
| (1) | An ordinary resolution to be proposed at a general meeting may be amended by ordinary resolution if: |
| (a) | notice of the proposed amendment is given to the company in writing by a person entitled to vote at the general meeting at which it is to be proposed not less than 48 hours before the meeting is to take place (or such later time as the chairman of the meeting may determine); and |
| (b) | the proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially alter the scope of the resolution. |
| (2) | A special resolution to be proposed at a general meeting may be amended by ordinary resolution, if: |
| (a) | the chairman of the meeting proposes the amendment at the general meeting at which the resolution is to be proposed; and |
| (b) | the amendment does not go beyond what is necessary to correct a grammatical or other non-substantive error in the resolution. |
| (3) | If the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a resolution is out of order, the chairman’s error does not invalidate the vote on that resolution. |
APPLICATION OF RULES TO CLASS MEETINGS
| 70. | Class meetings |
| (1) | The provisions of the articles relating to general meetings apply, with any necessary modifications, to meetings of the holders of any class of shares. |
PART 5 - ADMINISTRATIVE ARRANGEMENTS
| 71. | Means of communication to be used |
| (1) | Subject to the articles, anything sent or supplied by or to the company under the articles may be sent or supplied in any way in which the Companies Act 2006 provides for documents or information which are authorised or required by any provision of that Act to be sent or supplied by or to the company. |
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| (2) | Subject to the articles, any notice or document to be sent or supplied to a director in connection with the taking of decisions by directors may also be sent or supplied by the means by which that director has asked to be sent or supplied with such notices or documents for the time being. |
| (3) | A director may agree with the company that notices or documents sent to that director in a particular way are to be deemed to have been received within a specified time of their being sent, and for the specified time to be less than 48 hours. |
| 72. | Company seals |
| (1) | Any common seal may only be used by the authority of the directors. |
| (2) | The directors may decide by what means and in what form any common seal is to be used. |
| (3) | Unless otherwise decided by the directors, if the company has a common seal and it is affixed to a document, the document must also be signed by at least two authorised persons. |
| (4) | For the purposes of this article, an authorised person is: |
| (a) | any director of the company; |
| (b) | the secretary (if any); or |
| (c) | any person authorised by the directors for the purpose of signing documents to which the common seal is applied. |
| (5) | If the company has an official seal for use abroad, it may only be affixed to a document if its use on that document, or documents of a class to which it belongs, has been authorised by a decision of the directors. |
| 73. | No right to inspect accounts and other records |
Except as provided by law or authorised by the directors or an ordinary resolution of the company, no person other than the parent company (if any), is entitled to inspect any of the company’s accounting or other records or documents merely by virtue of being a member.
| 74. | Provision for employees on cessation of business |
The directors may decide to make provision for the benefit of persons employed or formerly employed by the company or any of its subsidiaries (other than a director or former director or shadow director) in connection with the cessation or transfer to any person of the whole or part of the undertaking of the company or that subsidiary.
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DIRECTORS’ INDEMNITY AND INSURANCE
| 75. | Indemnity |
| (1) | Subject to article 75(2), a relevant officer of the company or an associated company may be indemnified out of the company’s assets against: |
| (a) | any liability incurred by that officer in connection with any negligence, default, breach of duty or breach of trust in relation to the company or an associated company; |
| (b) | any liability incurred by that officer in connection with the activities of the company or an associated company in its capacity as a trustee of an occupational pension scheme (as defined in section 235(6) of the Companies Act 2006); and |
| (c) | any other liability incurred by that officer as an officer of the company or an associated company. |
| (2) | This article does not authorise any indemnity which would be prohibited or rendered void by any provision of the Companies Acts or by any other provision of law. |
| (3) | In this article: |
| (a) | companies are associated if one is a subsidiary of the other or both are subsidiaries of the same body corporate; and |
| (b) | a “relevant officer” means any person who is or was at any time a director, secretary or other officer (except auditor) of the company or an associated company. |
| 76. | Insurance |
| (1) | The directors may decide to purchase and maintain insurance, at the expense of the company, for the benefit of any relevant officer in respect of any relevant loss. |
| (2) | In this article: |
| (a) | a “relevant officer” means any person who is or was at any time a director, secretary or other officer (except auditor) of the company or an associated company; |
| (b) | a “relevant loss” means any loss or liability which has been or may be incurred by a relevant officer in connection with that officer’s duties or powers in relation to the company, any associated company or any pension fund or employees’ share scheme of the company or associated company; and |
| (c) | companies are associated if one is a subsidiary of the other or both are subsidiaries of the same body corporate. |
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PART 6 - SCHEME OF ARRANGEMENT
| 77. | Issue of shares by Aon Ireland |
| (1) | In this article: |
| (a) | the “Scheme” means the scheme of arrangement dated 1 April 2020 under Part 26 of the Companies Act between the company and the Scheme Shareholders (as defined in the Scheme), in its original form or with or subject to any modification, addition or condition approved or imposed by the High Court of Justice of England and Wales and agreed by the Company; |
| (b) | “Aon Ireland” means Aon plc, a public limited company incorporated in Ireland (with company number 604607); whose registered office is at Metropolitan Building, James Joyce Street, Dublin 1, Ireland D01 KOY8; |
| (c) | “Aon Share Plans” means the Aon plc 2011 Incentive Plan (as Amended and Restated Effective March 29, 2019 and as assumed by Aon plc as of April 2, 2012) (and its subplans — the Aon plc Leadership Performance Program (effective January 1, 2016), the Aon plc Executive Committee Incentive Compensation Plan (effective January 1, 2016)), the Rules of the Aon plc 2011 Incentive Plan, as amended and restated effective June 21, 2019, for the Grant of Restricted Stock Units to Participants in France, and all equity award agreements thereunder); the Aon Stock Incentive Plan, as amended (sub-plans include the Aon Corporation Non-Employee Directors’ Deferred Stock Unit Plan, effective as of January 1, 2006, and the Aon Corporation Outside Director Stock Award and Retirement Plan); the Aon plc Global Share Purchase Plan (and its sub-plans, namely the Rules of the Aon UK Sharesave Scheme, dated September 23, 2009, as amended on September 21, 2012, and the Rules of the Aon UK Sharesave Scheme, dated September 23, 2009, as amended on September 21, 2012, and on November 17, 2017); the Aon Stock Award Plan, as amended and restated through February 2000; and the Aon Stock Option Plan, as amended and restated through 1997; and |
| (d) | capitalised terms used but not defined in these articles shall have the meaning given to them in the Scheme. |
| (2) | Notwithstanding any other provision of these articles, any shares issued (or transferred pursuant to article 77(3) below), to any person (other than to Aon Ireland, any subsidiary of Aon Ireland or any nominee(s) of Aon Ireland) after the Effective Time (a “New Member”) (each a “Post-Scheme Share”) shall be issued (or deemed issued) on terms that they shall, on issue (but subject to the terms of articles 77(3) and 77(4) below), be immediately transferred to Aon Ireland (or as it may direct) (the “Purchaser”), who shall be obliged to acquire each Post-Scheme Share in consideration of, and conditional upon, the issue by Aon Ireland to the relevant New Member of one new class A ordinary share of US$150 each in the capital of Aon Ireland (credited as fully paid) per each Post- Scheme Share acquired. |
| (3) | Any New Member (other than, for the avoidance of doubt, a person who becomes a New Member by virtue of a transfer pursuant to this article 77(3)) may, prior to the issue of Post-Scheme Shares to him or her pursuant to the exercise of an option or satisfaction of an award under one of the Aon Share |
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| Plans, give not less than two business days’ written notice to the Company in such manner as the board shall prescribe of his or her intention to transfer some or all of such Post-Scheme Shares to his or her spouse or civil partner and may, if such notice has been validly given, on such Post-Scheme Shares being issued to him or her, immediately transfer to his or her spouse or civil partner any such Post-Scheme Shares, provided that such Post-Scheme Shares will then be immediately transferred by that spouse or civil partner (as applicable) to the Purchaser pursuant to article 77(2) above. If notice has been validly given pursuant to this article 77(3) but the New Member does not immediately transfer to his or her spouse or civil partner the Post-Scheme Shares in respect of which notice was given, such shares will be transferred to the Purchaser pursuant to article 77(2) above. |
| (4) | On any reorganisation of, or material alteration to, the share capital of the company (including, without limitation, any subdivision and/or consolidation) carried out after the Effective Time, or such other event as the directors of the company consider fair and reasonable, the amount of Aon Ireland shares to be issued as consideration per Post-Scheme Share under article 77(2) shall be adjusted by the company in such manner as the board may determine to be appropriate to reflect such reorganisation, alteration or event. References in this article to such shares shall, following such adjustment, be construed accordingly. |
| (5) | In connection with the transfer of Post-Scheme Shares required pursuant to this article 77, the company may appoint any person as attorney and/or agent for the New Member to transfer the Post-Scheme Shares to the Purchaser and/or its nominees and do all such other things and execute and deliver all such documents or deeds as may in the opinion of such attorney or agent be necessary or desirable to vest the Post-Scheme Shares in the Purchaser and, pending such vesting, to exercise all such rights attaching to the Post-Scheme Shares as the Purchaser may direct, including, without limitation, voting such Post-Scheme Shares, and/or appointing any proxy or corporate representative to vote such Post-Scheme Shares, at any general meeting of the company, exercising any other rights relating to such Post-Scheme Shares in relation to any general meeting of the company, and signifying the agreement of the New Member to any written resolution of the company (including any written resolution proposed by the directors or the members of the company). |
| (6) | If an attorney or agent is so appointed, the New Member shall not thereafter (except to the extent that the attorney or agent fails to act in accordance with the directions of the Purchaser) be entitled to exercise any rights attaching to the Post-Scheme Shares unless so agreed in writing by the Purchaser. The attorney or agent shall be empowered to execute and deliver as transferor a form of transfer or instructions of transfer on behalf of the New Member (or any subsequent holder) in favour of the Purchaser and the company may give a good receipt for the consideration for the Post-Scheme Shares and may register the Purchaser as holder thereof and issue to it certificate(s) for the same. |
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| (7) | The company shall not be obliged to issue a certificate to the New Member for the Post-Scheme Shares. The Purchaser shall settle the consideration due to the New Member pursuant to article 77(2) above by updating the register of members of Aon Ireland to reflect such issuance. |
| (8) | Pending the vesting of legal title in the Post-Scheme Shares to the Purchaser, in the event of any dividend, distribution, repayment of capital through a capital reduction or other return of capital to members by the Company after the Effective Time (a “Return of Capital”), notwithstanding the terms of 52, the directors of the Company may determine that, if so directed by the Purchaser, the cash or other assets comprised in such Return of Capital shall be paid or transferred directly to the Purchaser or to such person as the Purchaser may direct (and such person shall be the “distribution recipient” for the purposes of these articles) rather than New Members and the Company shall be authorised to so pay or transfer such cash or other assets. |
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Exhibit 4.4
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AON CORPORATION
The present name of the corporation is Aon Corporation which was incorporated on December 12, 1979 under the name of Combined International Corporation.
FIRST: The name of the corporation is Aon Corporation (the “Corporation”).
SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County 19808. The name of the registered agent of the Corporation at such address is Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have the authority to issue is 1,000 shares of common stock with a par value of $0.01 per share.
FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-laws of the Corporation, subject to any specific limitation on such power contained in any By-laws adopted by the stockholders of the Corporation. Elections of directors need not be by written ballot unless the By-laws of the Corporation so provide.
SIXTH: No person who is or was a director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for, and only to the extent of, liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. No amendment to or repeal of, or adoption of any provision of this Certificate of Incorporation inconsistent with, this Section shall adversely affect the rights and protection afforded to a director of the Corporation under this Section for acts or omissions occurring prior to such amendment to or repeal or adoption of an inconsistent provision. If the Delaware General Corporation Law hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law.
SEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation.
This Amended and Restated Certificate of Incorporation is being filed pursuant to Sections 242 and 245 of the Delaware General Corporation Law.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by the undersigned, a duly authorized officer of the Corporation, on March 22, 2016:
| By: | /s/ Matthew M. Rice | |
| Name: | Matthew M. Rice | |
| Title: |
Vice President and Secretary |
Exhibit 4.5
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That by unanimous action by written consent of the Board of Directors Aon Corporation resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered “FOURTH” so that, as amended, said Article shall be and read as follows:
FOURTH: The total number of shares of all classes of capital stock which the corporation shall have the authority to issue is 1,100 shares of common stock with a par value of $0.01 per share.
SECOND: That thereafter, the stockholder of said corporation approved the amendment by written consent in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 22nd day of October, 2021.
| By: | /s/ Julie Cho | |
| Authorized Officer | ||
| Title: | Secretary | |
| Name: | Julie Cho | |
| Print or Type | ||
Exhibit 4.7
CERTIFICATE OF INCORPORATION
OF
Hogg Robinson North America, Inc.
FIRST: The name of the Corporation is Hogg Robinson North America, Inc.
SECOND: The address of its registered office in the State of Delaware is 410 South State Street, in the City of Dover, County of Kent. The name of its registered agent at such address is United Corporate Services, Inc.
THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one Thousand (1,000) shares (no par value). Holders of Common Stock shall have no pre-emptive rights to subscribe to future issues of shares of Common Stock offered sold or exchanged for any consideration other than cash.
FIFTH: The name and mailing address of the Incorporator is as follows:
| NAME |
MAILING ADDRESS | |
| William W. Rosenblatt | 140 Broadway New York, New York 10005 |
SIXTH: The name and mailing address of the person who is to serve as the director until the first annual meeting of stockholder’s or until his successors are elected and qualified are as follows:
| NAME |
MAILING ADDRESS | |
| W. W. Rosenblatt | LeBoeuf Lamb, Leiby & MacRae 140 Broadway New York, New York 10005 |
SEVENTH: The Corporation is to have perpetual existence.
EIGHT: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized:
To make, alter or repeal the By-Laws of the Corporation.
NINTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation. Elections of Directors need not be by written ballot unless the By-Laws of the Corporation shall so provide.
TENTH: No contract, act or other transaction between the Corporation and any other corporation shall be affected or invalidated by the fact that any director or directors or any officer of officers of the Corporation is or are interested in, or is a director or officer or are directors or officers of, such other corporation; and any director or directors or officer or officers of the Corporation, individually or jointly, may be a party or parties to or may be interested in any contract, act or transaction of the Corporation or in which the Corporation is interested, and no contract, act or other transaction between the Corporation and any person, firm or corporation shall be affected or invalidated by the fact that any director or directors or any officer or officers of the Corporation is a party or are parties to such contract, act or other transaction, or in any way connected with such person, firm or other corporation, and each and every person who is now a director or who may become a director or officer of the Corporation is hereby relieved from any liability that might otherwise exist from contracting with the Corporation for the benefit of himself or any person, firm or other corporation in which he may be in any way interested.
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ELEVENTH: Any director or any officer elected or appointed by the stockholders or by the Board of Directors may be removed at any time in such manner as shall be provided in the By-Laws of the Corporation.
TWELFTH: Each director and each officer of the Corporation and each person who may have served at the Corporation’s request as a director or officer of another corporation in which it is a creditor shall be indemnified by the Corporation against all expenses, except as stated below, reasonably incurred by him in connection with any action, suit or proceeding to which he shall be made a party, or with which he shall he threatened, by reason of his being or having been a director or officer of the Corporation, or a director or officer of such other corporation, whether or not he continues to be a director or officer of the Corporation or of such other corporation at the time of incurring such expenses. The expenses covered by the foregoing indemnity shall not include any (a) expenses incurred in connection with any matters as to which such director or officer or other person shall be adjudged in such action, suit or proceeding, without such judgment being reversed, to be liable by reason of his having been derelict in the performance of his duty as such director or officer, or as a director or officer of such other corporation, or (b) amounts paid by such director or officer or such other person in settlement of any such action, suit or proceeding, or (c) expenses incurred in connection with any matters which shall have been the subject of such action, suit or proceeding disposed of otherwise than by adjudication on the merits, unless in relation to such matters
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such director or officer or such other person was not derelict in the performance of his duty as a director or officer, or as a director or officer of such other corporation. As to whether or not a director or officer or such other person was derelict in relation to such matters, the Board of Directors and each director and officer may conclusively rely upon an opinion as to both law and fact by legal counsel selected by or in the manner designated by the Board of Directors. The charges of any such legal counsel shall be paid by the Corporation. The foregoing right of indemnification shall be in addition to any rights to which any director or officer, or other person serving as a director or officer of another corporation at the Corporation’s request, may otherwise be entitled as a matter of law.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in any manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 14th day of July, 1980.
| /s/ William W. Rosenblatt | ||
| William W. Rosenblatt |
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| State of New York | ) | |
| ) SS. : | ||
| County of New York | ) | |
Be it remembered that on this 14th day of July, 1980, personally appeared before me a Notary Public in and for the county and state aforesaid, William W. Rosenblatt, the party to the foregoing Certificate of Incorporation, known to me personally to be such, and acknowledged the said Certificate to be the act and deed of the signer, and that the facts therein stated are truly set forth.
Given under my hand and seal of office the day and year aforesaid.
| /s/ Susan J. Grimm | ||
| Notary Public | ||
| SUSAN J. GRIMM | ||
| Notary Public, State of New York | ||
| No. 41-4713456 | ||
| Qualified in Queens County | ||
| Commission Expires March 30, 1982 | ||
Exhibit 4.8
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE INCORPORATION
OF
HOGG ROBINSON NORTH AMERICA, INC.
Pursuant to Section 242 of the General Corporation Law of
the State of Delaware
Hogg Robinson North America, Inc., a Delaware corporation (hereinafter called the “Corporation”), does hereby certify as follows:
FIRST: Article TENTH of the Corporation’s Certificate of Incorporation is hereby amended by deleting the present Article TENTH in its entirety and substituting in lieu thereof the new Article TENTH set forth in Exhibit 1 attached hereto.
SECOND: The foregoing amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, John J. Walsh has caused this Certificate to be duly executed in its corporate name this 30th day of Jan, 1995.
| HOGG ROBINSON NORTH AMERICA, INC. | ||
| By: | /s/ John J. Walsh | |
| Name: John J. Walsh Title: Executive Vice President | ||
| ATTEST: | ||
| By: | /s/ Jane E. Roberts | |
| Jane E. Roberts Assistant Secretary | ||
ARTICLE TENTH
INDEMNIFICATION
10.1 Indemnity Undertaking. To the extent not prohibited by law, the Corporation shall indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a “Proceeding”), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a Director or officer of the Corporation, or, at the request of the Corporation, is or was serving as a director or officer of any other corporation or in a capacity with comparable authority or responsibilities for any partnership, joint venture, trust, employee benefit plan or other enterprise (an “Other Entity”), against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys’ fees, disbursements and other charges). Persons who are not directors or officers of the Corporation (or otherwise entitled to indemnification pursuant to the preceding sentence) may be similarly indemnified in respect of service to the Corporation or to an Other Entity at the request of the Corporation to the extent the Board at any time specifies that such persons are entitled to the benefits of this Article TENTH.
10.2 Advancement of Expenses. The Corporation shall, from time to time, reimburse or advance to any Director or officer or other person entitled to indemnification hereunder the funds necessary for payment of expenses, including attorneys’ fees and disbursements, incurred in connection with any Proceeding, in advance of the final disposition of such Proceeding; provided, however, that, if required by the General Corporation Law, such expenses incurred by or on behalf of any Director or officer or other person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of such Director or officer (or other person indemnified hereunder), to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such Director, officer or other person is not entitled to be indemnified for such expenses.
10.3 Rights Not Exclusive. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article TENTH shall not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, this Certificate of Incorporation, the By-laws, any agreement, any vote of stockholders or disinterested Directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
10.4 Continuation of Benefits. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article TENTH shall continue as to a person who has ceased to be a Director or officer (or other person indemnified hereunder) and shall inure to the benefit of the executors, administrators, legatees and distributees of such person.
10.5 Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of an Other Entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article TENTH or under section 145 of the General Corporation Law or any other provision of law.
10.6 Binding Effect. The provisions of this Article TENTH shall be a contract between the Corporation, on the one hand, and each Director and officer who serves in such capacity at any time while this Article TENTH is in effect and any other person entitled to indemnification hereunder, on the other hand, pursuant to which the Corporation and each such Director, officer or other person intend to be, and shall be legally bound. No repeal or modification of this Article TENTH shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
10.7 Procedural Rights. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article TENTH shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. The burden of proving that such indemnification or reimbursement or advancement of expenses is not appropriate shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that such person is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such person is not so entitled. Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.
10.8 Service Deemed at Corporation’s Request. Any Director or officer of the Corporation serving in any capacity (a) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (b) any employee benefit plan of the Corporation or any corporation referred to in clause (a) shall be deemed to be doing so at the request of the Corporation.
10.9 Election of Applicable Law. Any person entitled to be indemnified or to reimbursement or advancement of expenses as a matter of right pursuant to this Article TENTH may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought. Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.
Exhibit 4.9
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
HOGG ROBINSON NORTH AMERICA, INC.
It is hereby certified that:
| 1. | The name of the corporation (hereinafter called the “corporation”) is: Hogg Robinson North America, Inc. |
| 2. | The certificate of incorporation of the corporation is hereby amended by striking out Article First thereof and by substituting in lieu of said Article the following new Article: |
“First: The name of this corporation is Aon North America, Inc.”
| 3. | The amendment of the certificate of incorporation herein certified has been duly adopted and written consent has been given in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware. |
Signed on November 4, 2021.
| /s/ Julie Cho |
| Julie Cho, Vice President |
Exhibit 4.10
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That by unanimous action by written consent of the Board of Directors of Aon North America, Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered “FOURTH” so that, as amended, said Article shall be and read as follows:
“FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one million (1,000,000) shares, par value $1.00. Holders of Common Stock shall have no pre-emptive rights to subscribe to future issues of shares of Common stock offered, sold or exchanged for any consideration other than cash.”
SECOND: That thereafter, the stockholder of said corporation approved the amendment by written consent in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS THEREOF, said corporation has caused this certificate to be signed this 17th day of March, 2022.
| By: | /s/ Julie Cho | |
| Authorized Officer | ||
| Title: | Secretary | |
| Name: | Julie Cho | |
| Print or Type | ||
Exhibit 4.11
BYLAWS OF
Aon North America, Inc.
Adopted on September 3, 2013
ARTICLE I - STOCKHOLDERS’ MEETINGS
Section 1. ANNUAL MEETING: The annual meeting of the stockholders shall be held at the corporate headquarters of the Company in city of Chicago in the State of Illinois on or before the last business day of the anniversary month of the date of incorporation of each year, beginning in the year following the year of incorporation of the Company, or on such date and at such place and time as the Board of Directors shall determine.
Section 2. SPECIAL MEETINGS: Special meetings of the stockholders may be called at the home office of the Company at any time by resolution of the Board of Directors or by the President or upon written request of stockholders holding at least twenty percent of the outstanding stock entitled to vote.
Section 3. NOTICE OF ANNUAL AND SPECIAL MEETING: Notice of the annual meeting and of every special or adjourned meeting of stockholders, written or printed, shall be prepared and mailed to the last known post office address of each stockholder not less than ten nor more than sixty days before any such meeting.
In the case of an annual or substitute annual meeting, the notice of meeting need not specifically state the business to be transacted unless it is a matter, other than election of Directors, on which the vote of stockholders is expressly required by the provisions of the corporation laws of the state of incorporation of the Company. In the case of a special meeting, the notice of meeting shall specifically state the purpose for which the meeting is called.
Section 4. CONSENT TO MEETINGS AND ACTION: If all the stockholders shall meet any time and place, either within or without the state of incorporation of the Company, and consent to the holding of a meeting such meeting shall be valid without call or notice, and at such meeting any corporate action may be taken. Unless otherwise provided by law, any action required to be taken or any other action which may be taken at a meeting of the stockholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the stockholders entitled to vote with respect to the subject matter thereof.
Section 5. VOTING: At every meeting of the stockholders, each stockholder of the Company entitled to vote at such meeting shall have one vote in person or by proxy for each share of stock having voting rights held by the stockholder and recorded in the name of the stockholder on the books of the Company on the record date fixed by the Board of Directors, or, if no record date is fixed, at the time of such meeting.
Section 6. CUMULATIVE VOTING FOR DIRECTORS: Except as may be required under the laws of the jurisdiction of incorporation, there shall be no cumulative voting for directors.
Section 7. QUORUM: A quorum at any meeting of stockholders shall consist of a majority of the outstanding voting stock of the Company entitled to vote on a matter, represented in person or by proxy. When a quorum is present at any meeting, a majority of the voting stock thereat shall decide any question that may come before the meeting. In the absence of quorum, those present may adjourn the meeting to a future date, but until a quorum is effected, may transact no other business.
Section 8. USE OF CONFERENCE TELEPHONE: One or more stockholders entitled to vote on a matter may participate in a meeting of stockholders by means of conference telephone or any other similar communication equipment by means of which all persons participating in the meeting can hear each other. Such participation shall constitute presence of such stockholders at the meeting.
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ARTICLE II - DIRECTORS AND DIRECTORS’ MEETINGS
Section 1. MANAGEMENT BY DIRECTORS, COMPENSATION: The business and property of the Company shall be managed by a Board of Directors of not less than one nor more than five Directors, which number shall be set by resolution of the Board of Directors or the stockholders. The Board of Directors shall be elected at the annual meeting of the stockholders for the term of one year and shall serve, subject to removal at any time, until the election and acceptance of their duly qualified successors. The Board of Directors shall hold any regular meetings as often as deemed necessary by the Board of Directors. The Directors shall be paid such fees for their attendance at such meetings of the Board of Directors as may be determined from time to time by the Board.
Section 2. REMOVAL OF DIRECTORS: At any special meeting of the stockholders, duly called as provided in these Bylaws, any Director or Directors may, by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote for the election of Directors be removed from office, either with or without cause.
Section 3. VACANCIES: Any vacancies caused by an increase in the number of authorized directors, or by the resignation, death, or removal of existing Directors may be filled by action of the Board of Directors or by action of the stockholders. Any Director elected to fill a vacancy shall serve the unexpired term of the vacant position.
Section 4. ANNUAL MEETING: The annual meeting of the Board of Directors shall be held without notice, at the same place and as soon as practical after the adjournment of each annual meeting of the stockholders or any special meeting of stockholders held in lieu of such annual meeting.
Section 5. SPECIAL MEETINGS: Special meetings of the Board of Directors may be held at any time on the call of the President, Secretary or upon the request of any Director, or may be held at any time and place without notice upon unanimous consent of all the members of the Board of Directors, or with the presence and participation of all Directors at such a meeting.
Section 6. CONSENT TO MEETINGS AND ACTION: Any action required to be taken or any action which may be taken at a meeting of the Board of Directors may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Directors entitled to vote with respect to the subject matter thereof.
Section 7. NOTICES OF MEETINGS: Notice of both regular and special meetings, except when held by unanimous consent or with the presence and participation of all of the Directors, shall be given by oral, telegraphic or written notice by the President, any Director or the Secretary to each Director not less than two days before any such meeting, and notices of special meetings shall state the purpose thereof. No failure or irregularity of notice of any regular meeting shall invalidate such meeting or any proceeding thereat. Directors may waive notice of any meeting in writing, and the presence and participation of a Director at a meeting shall constitute waiver of notice of the meeting by that Director.
Section 8. QUORUM: A majority of the Directors then in office, but in no case less than a majority of the minimum number of Directors specified for the variable range of the Board of Directors, shall constitute a quorum for the transaction of business, and whenever a quorum is present, all acts and decisions taken by a majority of the Directors assembled shall be valid as a corporate act. In case a quorum is not present at any annual, regular or special meeting, the Secretary may adjourn the meeting to another day and shall give written, telegraphic, or oral notice to each Director at least two days before convening such adjourned meeting.
Section 9. COMMITTEES: The Board may appoint such committees, in accordance with applicable law, as it may from time to time require.
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Section 10. USE OF CONFERENCE TELEPHONE: One or more directors may participate in a meeting of the Board of Directors or any committee designated by the Board of Directors by means of conference telephone or any other similar communication equipment by means of which all persons participating in the meeting can hear each other. Such participation shall constitute presence of the person at the meeting.
ARTICLE III - OFFICERS
Section 1. TITLES: The officers of the Company may consist of a President, a Treasurer and a Secretary. A Chairman, Chief Executive Officer, Chief Operating Officer, one or more Vice Presidents and one or more Principals and such other additional officers and titles and assistant officers and titles may be determined by resolution of the Board of Directors or in such manner as may be determined by resolution of the Board of Directors from time to time. Unless otherwise prohibited by law, the position of any two offices may be held by the same person.
Section 2. ELECTION AND TERM: The officers of the Company shall be elected or appointed by resolution of the Board of Directors or by such persons and in such manner as may be determined by resolution of the Board of Directors from time to time, to serve in accordance with and subject to such resolution and these Bylaws, and to serve until their successors are elected and qualify or until their earlier resignation or removal. If the office of President, Treasurer or Secretary is vacated at any time, such office shall be filled as soon as reasonably practicable. If any other office is vacated during the year, such office may be filled or allowed to remain vacant.
Section 3. REMOVAL: The officers of the Company may be removed, with or without cause, by resolution of the Board of Directors or by such persons and in such manner as may be determined by resolution of the Board of Directors from time to time.
Section 4. CHAIRMAN: The Chairman shall be subject to the control and direction of the Board of Directors and shall have general authority over all affairs of the Company and all those powers usually pertaining to the office of Chairman. The Chairman shall keep the Board of Directors fully informed about, and shall freely consult with them concerning, the business and affairs of the Company.
Section 5. CHIEF EXECUTIVE OFFICER: The Chief Executive Officer shall be subject to the control and direction of the Chairman and the Board of Directors and shall have general authority over all affairs of the Company and shall have all those powers usually pertaining to the office of Chief Executive Officer.
Section 6. PRESIDENT: The President shall be subject to the control and direction of the Board of Directors and the Chief Executive Officer, shall have general supervision over the operations of the Company and shall have all those powers usually pertaining to the office of President.
Section 7. CHIEF OPERATING OFFICER: The Chief Operating Officer shall be subject to the control and direction of the President, and subject to such control and direction shall have such duties and responsibilities over the operations of the Company as may be delegated by the Board of Directors and the President.
Section 8. VICE PRESIDENT: Each Vice President shall have such powers and shall perform such duties as may be assigned by the Board of Directors and the President.
Section 9. PRINCIPAL: Each Principal shall have such powers and shall perform such duties as may be assigned by the President.
Section 10. SECRETARY: The Secretary shall issue notices for all meetings of the stockholders and Directors, shall keep their minutes and shall have charge and custody of the minutes, corporate books and the seal of the Company. The Secretary shall sign instruments with such other officers as shall require such signature and shall make such reports and perform such other duties as are incident to the office or as properly required by the Board of Directors. At the direction of or with the approval of the Secretary, or in the absence or incapacitation of the Secretary, any Assistant Secretary shall act in the stead of the Secretary.
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Section 11. TREASURER: The Treasurer shall have the custody of all funds and securities of the Company and shall supervise the keeping of all necessary books of account. The Treasurer shall sign or countersign such instruments as require such signature, shall perform all duties incident to the office or that are properly required by the Board of Directors.
Section 12. BONDS: The Board of Directors may, by resolution, require any or all officers, agent or employees of the Company to give bond to the Company with sufficient sureties, conditioned on the faithful performance of the duties of their respective office or positions, and to comply with such other conditions as may from time to time be required by the Board of Directors.
Section 13. RESIGNATIONS: Any officer may resign at any time by giving notice to the Board of Directors or to the President or to the Secretary. Any such resignation shall take effect upon receipt of such notice or at any later time (not exceeding 30 days) specified. The acceptance of such resignation shall not be necessary to effect the resignation. Notwithstanding any other provision of these bylaws, an officer shall be deemed to have resigned if the responsibilities of such officer have been terminated by an authorized representative of the Company.
Section 14. COMPLIANCE WITH STATE LAWS: Notwithstanding any provision contained in these Bylaws, all authority granted by these Bylaws shall be exercised only in accordance with the statutes, rules and regulations of the state of incorporation of the Company.
ARTICLE IV - STOCK
Section 1. SHARES: The shares of the Company shall be represented by certificates or, if determined by resolution of the Board of Directors, some or all of any or all classes and series of the shares of the Company shall be uncertificated. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Except as otherwise expressly provided for by law, uncertificated shares shall have identical rights and obligations of certificated shares of the same class and series. All shares shall be fully paid and non-assessable.
Section 2. CERTIFICATES OF STOCK: Notwithstanding any resolution of the Board of Directors that shares will be uncertificated, every holder of stock represented by certificates and, upon request, every holder of uncertificated shares shall be entitled to have a certificate signed by or in the name of the corporation by the president or vice-president, and by the treasurer, an assistant treasurer, the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all such signatures may be facsimiles.
Section 3. ISSUANCE OF SHARES; RECORDKEEPING: Certificates of stock shall be issued in numerical order to each stockholder requesting certificated shares and whose shares have been paid in full. Uncertificated shares shall be recorded at the time the shares have been paid in full. A record shall be kept of all shares issued and the name of the legal owner of all shares. A record shall be kept of the name of the beneficial owner of all shares if such information is properly communicated to the Company. There shall be no obligation for the Company to seek information regarding beneficial ownership. Within a reasonable time after the issuance of uncertificated shares, the Company shall provide to the registered owner thereof of all information required to be set forth on certificated shares.
Section 4. TRANSFER OF SHARES: Transfer of certificated shares shall be made only upon surrender of the certificates for the shares sought to be transferred by the record holder thereof or by a duly authorized agent, transferee or legal representative. All certificates surrendered for transfer shall be canceled before new certificates for the transferred shares shall be issued or a record for uncertificated shares shall be made. Transfer of uncertificated shares shall be made only upon notice to the Company by the record holder thereof or by a duly authorized agent, transferee or legal representative. Within a reasonable time after the transfer of uncertificated shares, the Company shall provide to the registered owner thereof of all information required to be set forth on certificated shares.
4
Section 5. LOST CERTIFICATES: The Board of Directors may authorize the issuance of a new certificate in place of a certificate claimed to have been lost or destroyed, upon receipt of an affidavit of such fact from the person claiming the loss or destruction. When authorizing such issuance of a new certificate, the Board may require the claimant to give the company a bond in such sum as it may direct in order to indemnify the Company against loss from any claim with respect to the certificate claimed to have been lost or destroyed. The Board may, by resolution reciting that the circumstances justify such action, authorize the issuance of the new certificate without requiring such a bond.
ARTICLE V - DIVIDENDS AND FINANCE
Section 1. DIVIDENDS DECLARED: The Board of Directors shall, at the annual meeting or at such other time as they deem advisable, declare and order to be paid such dividends on the stock of the Company as in their judgment should be paid in accordance with applicable law.
Section 2. BANK DEPOSITS: The moneys of the Company shall be deposited in banks in accordance with such resolutions as the Board of Directors may adopt and approve from time to time, and the moneys shall not be deposited without Board direction and approval.
Section 3. FISCAL YEAR: Unless otherwise ordered by the Board of Directors, the fiscal year of the Company shall be from January 1 through December 31 of each year.
ARTICLE VI - CORPORATE SEAL
Section 1. FORM OF CORPORATE SEAL: The corporate seal of the Company shall consist of one or more concentric circles, the outer edge of which shall carry the legal name of the Company and the name of the state of incorporation of the Company.
ARTICLE VII - AMENDMENTS
Section 1. AMENDMENT OF BYLAWS: Except as otherwise provided herein or in the laws of the state of incorporation of the Company, these Bylaws may be amended or repealed and new Bylaws may be adopted the Board of Directors or by the stockholders.
End of Bylaws
5
Exhibit 4.14
AON CORPORATION
Company
AON PLC
AON GLOBAL LIMITED
AON GLOBAL HOLDINGS PLC
AON NORTH AMERICA, INC.
Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
FIRST INDENTURE SUPPLEMENT
DATED AS OF JUNE 22, 2023
TO
THE SECOND AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2020
AMONG AON CORPORATION, AON PLC, AON GLOBAL LIMITED, AON GLOBAL HOLDINGS PLC AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AMENDING AND RESTATING THE AMENDED AND RESTATED INDENTURE, DATED AS OF APRIL 2, 2012, AMONG AON CORPORATION, AON GLOBAL LIMITED (FORMERLY AON PLC) AND THE TRUSTEE, AMENDING AND RESTATING THE INDENTURE, DATED AS OF JANUARY 13, 1997, AMONG AON CORPORATION, AON GLOBAL LIMITED (FORMERLY AON PLC) AND THE TRUSTEE)
JUNIOR SUBORDINATED DEBENTURES
THIS FIRST INDENTURE SUPPLEMENT (the “First Indenture Supplement”), is dated as of June 22, 2023, among Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is acting as a guarantor, a “Guarantor”), Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called the “Aon UK” or, with respect to any series of Securities for which Aon UK is acting as a guarantor, a “Guarantor”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a guarantor, a “Guarantor”), and Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Additional Guarantor”, and, together with Aon Ireland, Aon UK and/or AGH (if applicable), the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”), and is a supplemental indenture amending and restating the Original Indenture (as defined below).
WITNESSETH:
WHEREAS, the Company, Aon Ireland, Aon UK, AGH and the Trustee executed and delivered and entered into a Second Amended and Restated Indenture dated as of April 1, 2020 (amending and restating the Amended and Restated Indenture, dated as of April 2, 2012, among Aon Corporation, Aon UK (formerly Aon plc) and the Trustee, amending and restating the Indenture, dated as of January 13, 1997, and such indenture, as amended, restated and supplemented from time to time, the “Original Indenture” and, together with this First Indenture Supplement, the “Indenture”), providing for the issuance of the Notes (as defined below);
WHEREAS, Article Fifteen of the Indenture provides for the execution and delivery to the Trustee of a guarantee pursuant to which the Additional Guarantor will unconditionally guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal of, premium, if any, and interest on each series of Notes on an unsecured basis, subordinate and junior in right of payment to each such Guarantor’s obligations to the holders of Senior Indebtedness in accordance with the provisions of Article 15 of the Original Indenture;
WHEREAS, Section 10.01 of the Original Indenture provides that a supplemental indenture may be entered into by the Company, Aon Ireland, Aon UK and AGH when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to add to the covenants of a Guarantor for the benefit of the Holders of all or any series of Securities, including the Notes, with respect to all or any series of Securities;
WHEREAS, each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor desires that the Additional Guarantor fully, unconditionally and irrevocably guarantee certain obligations under the Original Indenture and the Notes by executing a supplemental indenture pursuant to Section 10.01 thereof;
WHEREAS, each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this First Indenture Supplement as a supplemental indenture to the Original Indenture by each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor has in all respects been duly authorized, and each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor, in the exercise of legal rights and power in it vested, is executing this First Indenture Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Company, AGH, Aon Ireland, Aon UK, the Additional Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in this First Indenture Supplement or otherwise clearly required by the context hereof or thereof, all capitalized terms used and not defined in this First Indenture Supplement that are defined in the Original Indenture shall have the meanings assigned to them in the Original Indenture. For all purposes of this First Indenture Supplement only:
AS USED IN THIS FIRST INDENTURE SUPPLEMENT, TERMS DEFINED IN THE ORIGINAL INDENTURE OR IN THE PREAMBLE OR RECITALS HERETO ARE USED HEREIN AS THEREIN DEFINED. THE WORDS “HEREIN,” “HEREOF” AND “HEREBY” AND OTHER WORDS OF SIMILAR IMPORT USED IN THIS FIRST INDENTURE SUPPLEMENT REFER TO THIS FIRST INDENTURE SUPPLEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION HEREOF.
“Additional Guarantor” means the Person named as the “Additional Guarantor” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Additional Guarantor” shall mean such successor Person.
“Company” means the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“First Indenture Supplement” has the meaning set forth in the recitals hereof.
“Guarantor” or “Guarantors” shall have the meaning specified in the preamble hereof, until a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
“Indenture” has the meaning set forth in the recitals hereof.
“Notes” means each series of issued and outstanding Securities issued by the Company under the Original Indenture.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Trustee” has the meaning set forth in the preamble hereof, which term shall include any successor trustee appointed pursuant to Article Seven of the Original Indenture.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.01. Agreement to be Bound. The Additional Guarantor hereby becomes party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
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SECTION 2.02. Section 2.02 Guarantee. The Additional Guarantor agrees, on a joint and several basis with each of the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article Fifteen of the Indenture on an unsecured basis.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification. This First Indenture Supplement shall be deemed part of the Original Indenture in the manner and to the extent herein provided, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
SECTION 3.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this First Indenture Supplement contained by or on behalf of the Company or the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 3.03. Addresses for Notices, etc. Any notice or demand which by any provision of this First Indenture Supplement is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or a 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 Additional Guarantor: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
SECTION 3.04. Counterparts. This First Indenture Supplement may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all of such counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 3.05. Separability. In case any one or more of the provisions contained in this First Indenture Supplement or in the Guarantee 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 First Indenture Supplement or of such Guarantee, but this First Indenture Supplement and such Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.06. Governing Law. This First Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws.
SECTION 3.07. Trustee. The Trustee makes no representation as to the validity or sufficiency of this First Indenture Supplement. The recitals contained herein shall be taken as the statements of the Company and the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and
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containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this First Indenture Supplement and any other documents delivered pursuant hereto (including authentication of the Notes) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.1.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
SECTION 3.08. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First Indenture Supplement to be duly signed, all as of the day and year first above written.
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Julie Cho | |||
| NAME: | JULIE CHO | |||
| TITLE: | VICE PRESIDENT & SECRETARY | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF IRELAND | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | SENIOR VICE PRESIDENT AND TREASURER | |||
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Alistair Boyd | |||
| NAME: | ALISTAIR BOYD | |||
| TITLE: | DIRECTOR | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Gardner Mugashu | |||
| NAME: | GARDNER MUGASHU | |||
| TITLE: | DIRECTOR | |||
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | PRESIDENT AND TREASURER | |||
[Company Signature Page to the First Indenture Supplement]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||
| BY: | /s/ Michele R. Shrum | |
| NAME: MICHELE R. SHRUM | ||
| TITLE: VICE PRESIDENT | ||
[Trustee Signature Page to the First Indenture Supplement]
Exhibit 4.16
AON CORPORATION
Company
AON PLC
AON GLOBAL LIMITED
AON GLOBAL HOLDINGS PLC
AON NORTH AMERICA, INC.
Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
FIRST INDENTURE SUPPLEMENT
DATED AS OF JUNE 22, 2023
TO
THE SECOND AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2020
AMONG AON CORPORATION, AON PLC, AON GLOBAL LIMITED, AON GLOBAL HOLDINGS PLC AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AMENDING AND RESTATING THE AMENDED AND RESTATED INDENTURE, DATED AS OF APRIL 2, 2012 AMONG AON CORPORATION, AON GLOBAL LIMITED (FORMERLY AON PLC) AND THE TRUSTEE, AMENDING AND RESTATING THE INDENTURE, DATED AS OF SEPTEMBER 10, 2010 AMONG AON CORPORATION, AON GLOBAL LIMITED (FORMERLY AON PLC) AND THE TRUSTEE)
DEBT SECURITIES
THIS FIRST INDENTURE SUPPLEMENT (the “First Indenture Supplement”), is dated as of June 22, 2023, among Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is acting as a guarantor, a “Guarantor”), Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called the “Aon UK” or, with respect to any series of Securities for which Aon UK is acting as a guarantor, a “Guarantor”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a guarantor, a “Guarantor”), and Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Additional Guarantor”, and, together with Aon Ireland, Aon UK and/or AGH (if applicable), the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”), and is a supplemental indenture amending and restating the Original Indenture (as defined below).
WITNESSETH:
WHEREAS, the Company, Aon Ireland, Aon UK, AGH and the Trustee executed and delivered and entered into a Second Amended and Restated Indenture dated as of April 1, 2020 (amending and restating the Amended and Restated Indenture, dated as of April 2, 2012, among Aon Corporation, Aon UK (formerly Aon plc) and the Trustee, amending and restating the Indenture, dated as of September 10, 2010, among Aon Corporation, Aon UK (formerly Aon plc) and the Trustee, and such indenture, as amended, restated and supplemented from time to time, the “Original Indenture” and, together with this First Indenture Supplement, the “Indenture”), providing for the issuance of the Notes (as defined below);
WHEREAS, Article Fifteen of the Indenture provides for the execution and delivery to the Trustee of a guarantee pursuant to which the Additional Guarantor will unconditionally guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal of, premium, if any, and interest on each series of Notes on an unsecured basis;
WHEREAS, Section 10.01 of the Original Indenture provides that a supplemental indenture may be entered into by the Company, Aon Ireland, Aon UK and AGH when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to add to the covenants of a Guarantor for the benefit of the Holders of all or any series of Securities, including the Notes, with respect to all or any series of Securities;
WHEREAS, each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor desires that the Additional Guarantor fully, unconditionally and irrevocably guarantee certain obligations under the Original Indenture and the Notes by executing a supplemental indenture pursuant to Section 10.01 thereof;
WHEREAS, each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this First Indenture Supplement as a supplemental indenture to the Original Indenture by each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor has in all respects been duly authorized, and each of the Company, Aon Ireland, Aon UK, AGH and the Additional Guarantor, in the exercise of legal rights and power in it vested, is executing this First Indenture Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Company, AGH, Aon Ireland, Aon UK, the Additional Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in this First Indenture Supplement or otherwise clearly required by the context hereof or thereof, all capitalized terms used and not defined in this First Indenture Supplement that are defined in the Original Indenture shall have the meanings assigned to them in the Original Indenture. For all purposes of this First Indenture Supplement only:
AS USED IN THIS FIRST INDENTURE SUPPLEMENT, TERMS DEFINED IN THE ORIGINAL INDENTURE OR IN THE PREAMBLE OR RECITALS HERETO ARE USED HEREIN AS THEREIN DEFINED. THE WORDS “HEREIN,” “HEREOF” AND “HEREBY” AND OTHER WORDS OF SIMILAR IMPORT USED IN THIS FIRST INDENTURE SUPPLEMENT REFER TO THIS FIRST INDENTURE SUPPLEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION HEREOF.
“Additional Guarantor” means the Person named as the “Additional Guarantor” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Additional Guarantor” shall mean such successor Person.
“Company” means the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“First Indenture Supplement” has the meaning set forth in the recitals hereof.
“Guarantor” or “Guarantors” shall have the meaning specified in the preamble hereof, until a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
“Indenture” has the meaning set forth in the recitals hereof.
“Notes” means each series of issued and outstanding Securities issued by the Company under the Original Indenture.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Trustee” has the meaning set forth in the preamble hereof, which term shall include any successor trustee appointed pursuant to Article Seven of the Original Indenture.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.01. Agreement to be Bound. The Additional Guarantor hereby becomes party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.02. Section 2.02 Guarantee. The Additional Guarantor agrees, on a joint and several basis with each of the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article Fifteen of the Indenture on an unsecured basis.
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ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification. This First Indenture Supplement shall be deemed part of the Original Indenture in the manner and to the extent herein provided, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
SECTION 3.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this First Indenture Supplement contained by or on behalf of the Company or the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 3.03. Addresses for Notices, etc. Any notice or demand which by any provision of this First Indenture Supplement is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or a 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 Additional Guarantor: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
SECTION 3.04. Counterparts. This First Indenture Supplement may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all of such counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 3.05. Separability. In case any one or more of the provisions contained in this First Indenture Supplement or in the Guarantee 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 First Indenture Supplement or of such Guarantee, but this First Indenture Supplement and such Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.06. Governing Law. This First Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws.
SECTION 3.07. Trustee. The Trustee makes no representation as to the validity or sufficiency of this First Indenture Supplement. The recitals contained herein shall be taken as the statements of the Company and the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that
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the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this First Indenture Supplement and any other documents delivered pursuant hereto (including authentication of the Notes) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.1.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
SECTION 3.08. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First Indenture Supplement to be duly signed, all as of the day and year first above written.
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Julie Cho | |||
| NAME: | JULIE CHO | |||
| TITLE: | VICE PRESIDENT & SECRETARY | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF IRELAND | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | SENIOR VICE PRESIDENT AND TREASURER | |||
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Alistair Boyd | |||
| NAME: | ALISTAIR BOYD | |||
| TITLE: | DIRECTOR | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Gardner Mugashu | |||
| NAME: | GARDNER MUGASHU | |||
| TITLE: | DIRECTOR | |||
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | PRESIDENT AND TREASURER | |||
[Company Signature Page to the First Indenture Supplement]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||
| BY: | /s/ Michele R. Shrum | |
| NAME: MICHELE R. SHRUM | ||
| TITLE: VICE PRESIDENT | ||
[Trustee Signature Page to the First Indenture Supplement]
Exhibit 4.18
AON GLOBAL LIMITED
Company
AON GLOBAL HOLDINGS PLC
AON PLC
AON CORPORATION
AON NORTH AMERICA, INC.
Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
FIRST INDENTURE SUPPLEMENT
DATED AS OF JUNE 22, 2023
TO
THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2020
AMONG AON GLOBAL LIMITED (FORMERLY AON PLC), AON PLC, AON CORPORATION, AON GLOBAL HOLDINGS PLC AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AMENDING AND RESTATING THE INDENTURE, DATED AS OF DECEMBER 12, 2012, AMONG AON GLOBAL LIMITED (FORMERLY AON PLC), AON CORPORATION AND THE TRUSTEE)
DEBT SECURITIES
THIS FIRST INDENTURE SUPPLEMENT (the “First Indenture Supplement”), is dated as of June 22, 2023, among Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called the “Company”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a guarantor, a “Guarantor”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is acting as a guarantor, a “Guarantor”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “Aon Delaware” or, with respect to any series of Securities for which Aon Delaware is acting as a guarantor, a “Guarantor”), and Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Additional Guarantor”, and, together with Aon Ireland, Aon Delaware and/or AGH (if applicable), the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”), and is a supplemental indenture amending and restating the Original Indenture (as defined below).
WITNESSETH:
WHEREAS, the Company, AGH, Aon Ireland, Aon Delaware and the Trustee executed and delivered and entered into an Amended and Restated Indenture dated as of April 1, 2020 (amending and restating the Indenture, dated as of December 12, 2012, among Aon UK (formerly Aon plc), Aon Corporation and the Trustee, and such indenture, as amended, restated and supplemented from time to time, the “Original Indenture” and, together with this First Indenture Supplement, the “Indenture”), providing for the issuance of the Notes (as defined below);
WHEREAS, Article Fifteen of the Indenture provides for the execution and delivery to the Trustee of a guarantee pursuant to which the Additional Guarantor will unconditionally guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal of, premium, if any, and interest on each series of Notes on an unsecured basis;
WHEREAS, Section 10.01 of the Original Indenture provides that a supplemental indenture may be entered into by the Company, AGH, Aon Ireland and Aon Delaware when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to add to the covenants of a Guarantor for the benefit of the Holders of all or any series of Securities, including the Notes, with respect to all or any series of Securities;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor desires that the Additional Guarantor fully, unconditionally and irrevocably guarantee certain obligations under the Original Indenture and the Notes by executing a supplemental indenture pursuant to Section 10.01 thereof;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this First Indenture Supplement as a supplemental indenture to the Original Indenture by each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor has in all respects been duly authorized, and each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor, in the exercise of legal rights and power in it vested, is executing this First Indenture Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Company, AGH, Aon Ireland, Aon Delaware, the Additional Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in this First Indenture Supplement or otherwise clearly required by the context hereof or thereof, all capitalized terms used and not defined in this First Indenture Supplement that are defined in the Original Indenture shall have the meanings assigned to them in the Original Indenture. For all purposes of this First Indenture Supplement only:
AS USED IN THIS FIRST INDENTURE SUPPLEMENT, TERMS DEFINED IN THE ORIGINAL INDENTURE OR IN THE PREAMBLE OR RECITALS HERETO ARE USED HEREIN AS THEREIN DEFINED. THE WORDS “HEREIN,” “HEREOF” AND “HEREBY” AND OTHER WORDS OF SIMILAR IMPORT USED IN THIS FIRST INDENTURE SUPPLEMENT REFER TO THIS FIRST INDENTURE SUPPLEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION HEREOF.
“Additional Guarantor” means the Person named as the “Additional Guarantor” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Additional Guarantor” shall mean such successor Person.
“Company” means the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“First Indenture Supplement” has the meaning set forth in the recitals hereof.
“Guarantor” or “Guarantors” shall have the meaning specified in the preamble hereof, until a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
“Indenture” has the meaning set forth in the recitals hereof.
“Notes” means each series of issued and outstanding Securities issued by the Company under the Original Indenture.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Trustee” has the meaning set forth in the preamble hereof, which term shall include any successor trustee appointed pursuant to Article Seven of the Original Indenture.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.01. Agreement to be Bound. The Additional Guarantor hereby becomes party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.02. Section 2.02 Guarantee. The Additional Guarantor agrees, on a joint and several basis with each of the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article Fifteen of the Indenture on an unsecured basis.
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ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification. This First Indenture Supplement shall be deemed part of the Original Indenture in the manner and to the extent herein provided, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
SECTION 3.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this First Indenture Supplement contained by or on behalf of the Company or the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 3.03. Addresses for Notices, etc. Any notice or demand which by any provision of this First Indenture Supplement is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or a 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 Additional Guarantor: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
SECTION 3.04. Counterparts. This First Indenture Supplement may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all of such counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 3.05. Separability. In case any one or more of the provisions contained in this First Indenture Supplement or in the Guarantee 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 First Indenture Supplement or of such Guarantee, but this First Indenture Supplement and such Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.06. Governing Law. This First Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws.
SECTION 3.07. Trustee. The Trustee makes no representation as to the validity or sufficiency of this First Indenture Supplement. The recitals contained herein shall be taken as the statements of the Company and the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that
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the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this First Indenture Supplement and any other documents delivered pursuant hereto (including authentication of the Notes) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.1.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
SECTION 3.08. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First Indenture Supplement to be duly signed, all as of the day and year first above written.
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Alistair Boyd | |||
| NAME: | ALISTAIR BOYD | |||
| TITLE: | DIRECTOR | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Gardner Mugashu | |||
| NAME: | GARDNER MUGASHU | |||
| TITLE: | DIRECTOR | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF IRELAND | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | SENIOR VICE PRESIDENT AND TREASURER | |||
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Julie Cho | |||
| NAME: | JULIE CHO | |||
| TITLE: | VICE PRESIDENT & SECRETARY | |||
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | PRESIDENT AND TREASURER | |||
[Company Signature Page to the First Indenture Supplement]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||
| BY: | /s/ Michele R. Shrum | |
| NAME: MICHELE R. SHRUM | ||
| TITLE: VICE PRESIDENT | ||
[Trustee Signature Page to the First Indenture Supplement]
Exhibit 4.20
AON GLOBAL LIMITED
Company
AON GLOBAL HOLDINGS PLC
AON PLC
AON CORPORATION
AON NORTH AMERICA, INC.
Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
FIRST INDENTURE SUPPLEMENT
DATED AS OF JUNE 22, 2023
TO
THE SECOND AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2020
AMONG AON GLOBAL LIMITED (FORMERLY AON PLC), AON GLOBAL HOLDINGS PLC, AON PLC, AON CORPORATION AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AMENDING AND RESTATING THE AMENDED AND RESTATED INDENTURE, DATED AS OF MAY 20, 2015, AMONG AON GLOBAL LIMITED (FORMERLY AON PLC), AON CORPORATION AND THE TRUSTEE, AMENDING AND RESTATING THE INDENTURE, DATED AS OF MAY 24, 2013)
DEBT SECURITIES
THIS FIRST INDENTURE SUPPLEMENT (the “First Indenture Supplement”), is dated as of June 22, 2023, among Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called the “Company”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a guarantor, a “Guarantor”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is acting as a guarantor, a “Guarantor”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “Aon Delaware” or, with respect to any series of Securities for which Aon Delaware is acting as a guarantor, a “Guarantor”), and Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Additional Guarantor”, and, together with Aon Ireland, Aon Delaware and/or AGH (if applicable), the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”), and is a supplemental indenture amending and restating the Original Indenture (as defined below).
WITNESSETH:
WHEREAS, the Company, AGH, Aon Ireland, Aon Delaware and the Trustee executed and delivered and entered into a Second Amended and Restated Indenture dated as of April 1, 2020 (amending and restating the Amended and Restated Indenture, dated as of May 20, 2015, among Aon UK (formerly Aon plc), Aon Corporation and the Trustee, amending and restating the Indenture, dated as of May 24, 2013, and such indenture, as amended, restated and supplemented from time to time, the “Original Indenture” and, together with this First Indenture Supplement, the “Indenture”), providing for the issuance of the Notes (as defined below);
WHEREAS, Article Fifteen of the Indenture provides for the execution and delivery to the Trustee of a guarantee pursuant to which the Additional Guarantor will unconditionally guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal of, premium, if any, and interest on each series of Notes on an unsecured basis;
WHEREAS, Section 10.01 of the Original Indenture provides that a supplemental indenture may be entered into by the Company, AGH, Aon Ireland and Aon Delaware when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to add to the covenants of a Guarantor for the benefit of the Holders of all or any series of Securities, including the Notes, with respect to all or any series of Securities;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor desires that the Additional Guarantor fully, unconditionally and irrevocably guarantee certain obligations under the Original Indenture and the Notes by executing a supplemental indenture pursuant to Section 10.01 thereof;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this First Indenture Supplement as a supplemental indenture to the Original Indenture by each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor has in all respects been duly authorized, and each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor, in the exercise of legal rights and power in it vested, is executing this First Indenture Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Company, AGH, Aon Ireland, Aon Delaware, the Additional Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in this First Indenture Supplement or otherwise clearly required by the context hereof or thereof, all capitalized terms used and not defined in this First Indenture Supplement that are defined in the Original Indenture shall have the meanings assigned to them in the Original Indenture. For all purposes of this First Indenture Supplement only:
AS USED IN THIS FIRST INDENTURE SUPPLEMENT, TERMS DEFINED IN THE ORIGINAL INDENTURE OR IN THE PREAMBLE OR RECITALS HERETO ARE USED HEREIN AS THEREIN DEFINED. THE WORDS “HEREIN,” “HEREOF” AND “HEREBY” AND OTHER WORDS OF SIMILAR IMPORT USED IN THIS FIRST INDENTURE SUPPLEMENT REFER TO THIS FIRST INDENTURE SUPPLEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION HEREOF.
“Additional Guarantor” means the Person named as the “Additional Guarantor” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Additional Guarantor” shall mean such successor Person.
“Company” means the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“First Indenture Supplement” has the meaning set forth in the recitals hereof.
“Guarantor” or “Guarantors” shall have the meaning specified in the preamble hereof, until a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
“Indenture” has the meaning set forth in the recitals hereof.
“Notes” means each series of issued and outstanding Securities issued by the Company under the Original Indenture.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Trustee” has the meaning set forth in the preamble hereof, which term shall include any successor trustee appointed pursuant to Article Seven of the Original Indenture.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.01. Agreement to be Bound. The Additional Guarantor hereby becomes party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.02. Section 2.02 Guarantee. The Additional Guarantor agrees, on a joint and several basis with each of the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article Fifteen of the Indenture on an unsecured basis.
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ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification. This First Indenture Supplement shall be deemed part of the Original Indenture in the manner and to the extent herein provided, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
SECTION 3.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this First Indenture Supplement contained by or on behalf of the Company or the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 3.03. Addresses for Notices, etc. Any notice or demand which by any provision of this First Indenture Supplement is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or a 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 Additional Guarantor: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
SECTION 3.04. Counterparts. This First Indenture Supplement may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all of such counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 3.05. Separability. In case any one or more of the provisions contained in this First Indenture Supplement or in the Guarantee 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 First Indenture Supplement or of such Guarantee, but this First Indenture Supplement and such Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.06. Governing Law. This First Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws.
SECTION 3.07. Trustee. The Trustee makes no representation as to the validity or sufficiency of this First Indenture Supplement. The recitals contained herein shall be taken as the statements of the Company and the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that
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the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this First Indenture Supplement and any other documents delivered pursuant hereto (including authentication of the Notes) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.1.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
SECTION 3.08. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First Indenture Supplement to be duly signed, all as of the day and year first above written.
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Alistair Boyd | |||
| NAME: | ALISTAIR BOYD | |||
| TITLE: | DIRECTOR | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Gardner Mugashu | |||
| NAME: | GARDNER MUGASHU | |||
| TITLE: | DIRECTOR | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF IRELAND | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | SENIOR VICE PRESIDENT AND TREASURER | |||
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Julie Cho | |||
| NAME: | JULIE CHO | |||
| TITLE: | VICE PRESIDENT & SECRETARY | |||
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | PRESIDENT AND TREASURER | |||
[Company Signature Page to the First Indenture Supplement]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||
| BY: | /s/ Michele R. Shrum | |
| NAME: MICHELE R. SHRUM | ||
| TITLE: VICE PRESIDENT | ||
[Trustee Signature Page to the First Indenture Supplement]
Exhibit 4.22
AON GLOBAL LIMITED
Company
AON GLOBAL HOLDINGS PLC
AON PLC
AON CORPORATION
AON NORTH AMERICA, INC.
Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
FIRST INDENTURE SUPPLEMENT
DATED AS OF JUNE 22, 2023
TO
THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2020
AMONG AON GLOBAL LIMITED (FORMERLY AON PLC), AON GLOBAL HOLDINGS PLC, AON PLC, AON CORPORATION AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AMENDING AND RESTATING THE INDENTURE, DATED AS OF NOVEMBER 13, 2015, AMONG AON GLOBAL LIMITED (FORMERLY AON PLC), AON CORPORATION AND THE TRUSTEE)
DEBT SECURITIES
THIS FIRST INDENTURE SUPPLEMENT (the “First Indenture Supplement”), is dated as of June 22, 2023, among Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called the “Company”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a guarantor, a “Guarantor”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is acting as a guarantor, a “Guarantor”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “Aon Delaware” or, with respect to any series of Securities for which Aon Delaware is acting as a guarantor, a “Guarantor”), and Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Additional Guarantor”, and, together with Aon Ireland, Aon Delaware and/or AGH (if applicable), the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”), and is a supplemental indenture amending and restating the Original Indenture (as defined below).
WITNESSETH:
WHEREAS, the Company, AGH, Aon Ireland, Aon Delaware and the Trustee executed and delivered and entered into an Amended and Restated Indenture dated as of April 1, 2020 (amending and restating the Indenture, dated as of November 13, 2015, among Aon UK (formerly Aon plc), Aon Corporation and the Trustee, and such indenture, as amended, restated and supplemented from time to time, the “Original Indenture” and, together with this First Indenture Supplement, the “Indenture”), providing for the issuance of the Notes (as defined below);
WHEREAS, Article Fifteen of the Indenture provides for the execution and delivery to the Trustee of a guarantee pursuant to which the Additional Guarantor will unconditionally guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal of, premium, if any, and interest on each series of Notes on an unsecured basis;
WHEREAS, Section 10.01 of the Original Indenture provides that a supplemental indenture may be entered into by the Company, AGH, Aon Ireland and Aon Delaware when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to add to the covenants of a Guarantor for the benefit of the Holders of all or any series of Securities, including the Notes, with respect to all or any series of Securities;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor desires that the Additional Guarantor fully, unconditionally and irrevocably guarantee certain obligations under the Original Indenture and the Notes by executing a supplemental indenture pursuant to Section 10.01 thereof;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this First Indenture Supplement as a supplemental indenture to the Original Indenture by each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor has in all respects been duly authorized, and each of the Company, AGH, Aon Ireland, Aon Delaware and the Additional Guarantor, in the exercise of legal rights and power in it vested, is executing this First Indenture Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Company, AGH, Aon Ireland, Aon Delaware, the Additional Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in this First Indenture Supplement or otherwise clearly required by the context hereof or thereof, all capitalized terms used and not defined in this First Indenture Supplement that are defined in the Original Indenture shall have the meanings assigned to them in the Original Indenture. For all purposes of this First Indenture Supplement only:
AS USED IN THIS FIRST INDENTURE SUPPLEMENT, TERMS DEFINED IN THE ORIGINAL INDENTURE OR IN THE PREAMBLE OR RECITALS HERETO ARE USED HEREIN AS THEREIN DEFINED. THE WORDS “HEREIN,” “HEREOF” AND “HEREBY” AND OTHER WORDS OF SIMILAR IMPORT USED IN THIS FIRST INDENTURE SUPPLEMENT REFER TO THIS FIRST INDENTURE SUPPLEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION HEREOF.
“Additional Guarantor” means the Person named as the “Additional Guarantor” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Additional Guarantor” shall mean such successor Person.
“Company” means the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“First Indenture Supplement” has the meaning set forth in the recitals hereof.
“Guarantor” or “Guarantors” shall have the meaning specified in the preamble hereof, until a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
“Indenture” has the meaning set forth in the recitals hereof.
“Notes” means each series of issued and outstanding Securities issued by the Company under the Original Indenture.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Trustee” has the meaning set forth in the preamble hereof, which term shall include any successor trustee appointed pursuant to Article Seven of the Original Indenture.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.01. Agreement to be Bound. The Additional Guarantor hereby becomes party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.02. Section 2.02 Guarantee. The Additional Guarantor agrees, on a joint and several basis with each of the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article Fifteen of the Indenture on an unsecured basis.
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ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification. This First Indenture Supplement shall be deemed part of the Original Indenture in the manner and to the extent herein provided, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
SECTION 3.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this First Indenture Supplement contained by or on behalf of the Company or the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 3.03. Addresses for Notices, etc. Any notice or demand which by any provision of this First Indenture Supplement is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or a 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 Additional Guarantor: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
SECTION 3.04. Counterparts. This First Indenture Supplement may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all of such counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 3.05. Separability. In case any one or more of the provisions contained in this First Indenture Supplement or in the Guarantee 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 First Indenture Supplement or of such Guarantee, but this First Indenture Supplement and such Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.06. Governing Law. This First Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws.
SECTION 3.07. Trustee. The Trustee makes no representation as to the validity or sufficiency of this First Indenture Supplement. The recitals contained herein shall be taken as the statements of the Company and the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that
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the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this First Indenture Supplement and any other documents delivered pursuant hereto (including authentication of the Notes) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.1.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
SECTION 3.08. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First Indenture Supplement to be duly signed, all as of the day and year first above written.
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Alistair Boyd | |||
| NAME: | ALISTAIR BOYD | |||
| TITLE: | DIRECTOR | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Gardner Mugashu | |||
| NAME: | GARDNER MUGASHU | |||
| TITLE: | DIRECTOR | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF IRELAND | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | SENIOR VICE PRESIDENT AND TREASURER | |||
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Julie Cho | |||
| NAME: | JULIE CHO | |||
| TITLE: | VICE PRESIDENT & SECRETARY | |||
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | PRESIDENT AND TREASURER | |||
[Company Signature Page to the First Indenture Supplement]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||
| BY: | /s/ Michele R. Shrum | |
| NAME: MICHELE R. SHRUM | ||
| TITLE: VICE PRESIDENT | ||
[Trustee Signature Page to the First Indenture Supplement]
Exhibit 4.29
AON CORPORATION
Company
AON GLOBAL HOLDINGS PLC
Co-Issuer or Guarantor
AON PLC
AON GLOBAL LIMITED
AON NORTH AMERICA, INC.
Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
SIXTH INDENTURE SUPPLEMENT
DATED AS OF JUNE 22, 2023
TO
THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2020
AMONG AON CORPORATION, AON GLOBAL HOLDINGS PLC, AON PLC, AON GLOBAL LIMITED, AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AMENDING AND RESTATING THE INDENTURE, DATED AS OF DECEMBER 3, 2018 AMONG AON CORPORATION, AON GLOBAL LIMITED (FORMERLY AON PLC) AND THE TRUSTEE)
DEBT SECURITIES
THIS SIXTH INDENTURE SUPPLEMENT (the “Sixth Indenture Supplement”), is dated as of June 22, 2023, among Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is acting as a guarantor, a “Guarantor”), Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called the “Aon UK” or, with respect to any series of Securities for which Aon UK is acting as a guarantor, a “Guarantor”), and Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Additional Guarantor”, and, together with Aon Ireland, Aon UK and/or AGH (if applicable), the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”), and is a supplemental indenture amending and restating the Original Indenture (as defined below). The Company together with the Co-Issuers in respect of any series of co-issued Securities are hereinafter sometimes referred to as the “Issuers”.
WITNESSETH:
WHEREAS, the Company, Aon UK, Aon Ireland, AGH and the Trustee executed and delivered and entered into an Amended and Restated Indenture dated as of April 1, 2020 (amending and restating the Indenture, dated as of December 3, 2018 among the Company, Aon UK and the Trustee), as supplemented by (i) that certain First Indenture Supplement, dated as of August 23, 2021, among the Company, AGH, Aon Ireland, Aon UK and the Trustee (the “First Supplement”), (ii) that certain Second Indenture Supplement, dated as of December 2, 2021, among the Company, AGH, Aon Ireland, Aon UK and the Trustee (the “Second Supplement”), (iii) that certain Third Indenture Supplement, dated as of February 28, 2022, among the Company, AGH, Aon Ireland, Aon UK and the Trustee (the “Third Supplement”), (iv) that certain Fourth Indenture Supplement, dated as of September 12, 2022, among the Company, AGH, Aon Ireland, Aon UK and the Trustee (the “Fourth Supplement”) and (v) that certain Fifth Indenture Supplement, dated as of February 23, 2023, among the Company, AGH, Aon Ireland, Aon UK and the Trustee (the “Fifth Supplement” and, together with the First Supplement, the Second Supplement, the Third Supplement and the Fourth Supplement, the “Supplements”, and such indenture, as amended, restated and supplemented from time to time, the “Original Indenture” and, together with this Sixth Indenture Supplement, the “Indenture”), providing for the issuance of the Notes (as defined below);
WHEREAS, Article Fifteen of the Indenture provides for the execution and delivery to the Trustee of a guarantee pursuant to which the Additional Guarantor will unconditionally guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of the principal of, premium, if any, and interest on each series of Notes on an unsecured basis;
WHEREAS, Section 10.01 of the Original Indenture provides that a supplemental indenture may be entered into by the Company, AGH, Aon Ireland and Aon UK when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to add to the covenants of a Guarantor for the benefit of the Holders of all or any series of Securities, including the Notes, with respect to all or any series of Securities;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon UK and the Additional Guarantor desires that the Additional Guarantor fully, unconditionally and irrevocably guarantee certain obligations under the Original Indenture and the Notes by executing a supplemental indenture pursuant to Section 10.01 thereof;
WHEREAS, each of the Company, AGH, Aon Ireland, Aon Ireland and the Additional Guarantor represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this Sixth Indenture Supplement as a supplemental indenture to the Indenture by each of the Company, AGH, Aon Ireland, Aon UK and the Additional Guarantor has in all respects been duly authorized, and each of the Company, AGH, Aon Ireland, Aon UK and the Additional Guarantor, in the exercise of legal rights and power in it vested, is executing this Sixth Indenture Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each of the Company, AGH, Aon Ireland, Aon UK, the Additional Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in this Sixth Indenture Supplement or otherwise clearly required by the context hereof or thereof, all capitalized terms used and not defined in this Sixth Indenture Supplement that are defined in the Original Indenture shall have the meanings assigned to them in the Original Indenture. For all purposes of this Sixth Indenture Supplement only:
AS USED IN THIS SIXTH INDENTURE SUPPLEMENT, TERMS DEFINED IN THE ORIGINAL INDENTURE OR IN THE PREAMBLE OR RECITALS HERETO ARE USED HEREIN AS THEREIN DEFINED. THE WORDS “HEREIN,” “HEREOF” AND “HEREBY” AND OTHER WORDS OF SIMILAR IMPORT USED IN THIS SIXTH INDENTURE SUPPLEMENT REFER TO THIS SIXTH INDENTURE SUPPLEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION HEREOF.
“Additional Guarantor” means the Person named as the “Additional Guarantor” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Additional Guarantor” shall mean such successor Person.
“Co-Issuer” means the Person named as the “Co-Issuer” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Co-Issuer” shall mean such successor Person.
“Company” means the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Guarantor” or “Guarantors” shall have the meaning specified in the preamble hereof, until a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
“Indenture” has the meaning set forth in the recitals hereof.
“Issuer” or “Issuers” means (i) the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person and (ii) with respect to the Supplements and the Original Indenture as amended by each of such Supplements, as applicable (a) the Person named as the “Company” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person and (b) the Person named as the “Co-Issuer” set forth in the preamble hereof, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Co-Issuer” shall include such successor Person.
-2-
“Notes” means each series of issued and outstanding Securities issued by the Company or co-issued by the Company and the Co-Issuer under the Original Indenture.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Sixth Indenture Supplement” has the meaning set forth in the recitals hereof.
“Supplements” has the meaning set forth in the recitals hereof.
“Trustee” has the meaning set forth in the preamble hereof, which term shall include any successor trustee appointed pursuant to Article Seven of the Original Indenture.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.01. Agreement to be Bound. The Additional Guarantor hereby becomes party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Additional Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.02. Section 2.02 Guarantee. The Additional Guarantor agrees, on a joint and several basis with each of the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article Fifteen of the Indenture on an unsecured basis.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification. This Sixth Indenture Supplement shall be deemed part of the Original Indenture in the manner and to the extent herein provided, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
SECTION 3.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Sixth Indenture Supplement contained by or on behalf of the Company, the Co-Issuer or the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 3.03. Addresses for Notices, etc. Any notice or demand which by any provision of this Sixth Indenture Supplement is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or a Co-Issuer or a 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 Additional Guarantor: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or a Co-Issuer or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
-3-
SECTION 3.04. Counterparts. This Sixth Indenture Supplement may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all of such counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 3.05. Separability. In case any one or more of the provisions contained in this Sixth Indenture Supplement or in the Guarantee 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 Sixth Indenture Supplement or of such Guarantee, but this Sixth Indenture Supplement and such Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.06. Governing Law. This Sixth Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws.
SECTION 3.07. Trustee. The Trustee makes no representation as to the validity or sufficiency of this Sixth Indenture Supplement. The recitals contained herein shall be taken as the statements of the Company and the Co-Issuer, the Guarantors and the Trustee assumes no responsibility for their correctness. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company and the Co-Issuer shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and the Co-Issuer whenever a person is to be added or deleted from the listing. If the Company or the Co-Issuer elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. Each of the Company and the Co-Issuer understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Co-Issuer shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and the Co-Issuer and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and the Co-Issuer. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. Each of the Company and the Co-Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company or the Co-Issuer, as the case may be; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this Sixth Indenture Supplement and any other documents delivered pursuant hereto (including authentication of the Notes) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.1.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
-4-
SECTION 3.08. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature Pages Follow]
-5-
IN WITNESS WHEREOF, each of the parties hereto has caused this Sixth Indenture Supplement to be duly signed, all as of the day and year first above written.
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Julie Cho | |||
| NAME: | JULIE CHO | |||
| TITLE: | VICE PRESIDENT & SECRETARY | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Gardner Mugashu | |||
| NAME: | GARDNER MUGASHU | |||
| TITLE: | DIRECTOR | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF IRELAND | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | SENIOR VICE PRESIDENT AND TREASURER | |||
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES | ||||
| BY: | /s/ Alistair Boyd | |||
| NAME: | ALISTAIR BOYD | |||
| TITLE: | DIRECTOR | |||
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE | ||||
| BY: | /s/ Paul Hagy | |||
| NAME: | PAUL HAGY | |||
| TITLE: | PRESIDENT AND TREASURER | |||
[Company Signature Page to the Sixth Indenture Supplement]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||
| BY: | /s/ Michele R. Shrum | |
| NAME: MICHELE R. SHRUM | ||
| TITLE: VICE PRESIDENT | ||
[Trustee Signature Page to the Sixth Indenture Supplement]
Exhibit 4.30
AON CORPORATION
Company
the Co-Issuer(s) party hereto
the Guarantors party hereto
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
AMENDED AND RESTATED INDENTURE
(Supplemental Indenture Amending and Restating the Amended and Restated Indenture dated as of April 1, 2020)
Dated as of [DATE]
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 Corporation, the Co-Issuers party thereto, the Guarantors party thereto 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
| Page | ||||||
| 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 | 7 | ||||
| Section 2.02. |
Form of Trustee’s Certificate of Authentication | 9 | ||||
| Section 2.03. |
Form, Execution, Authentication, Delivery and Dating of Securities | 9 | ||||
| Section 2.04. |
Currency; Denominations; Regular Record Date | 10 | ||||
| Section 2.05. |
Exchange and Registration of Transfer of Securities | 11 | ||||
| Section 2.06. |
Temporary Securities | 12 | ||||
| Section 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 12 | ||||
| Section 2.08. |
Securities in Global Form | 13 | ||||
| Section 2.09. |
Cancellation | 13 | ||||
| Section 2.10. |
Computation of Interest | 13 | ||||
| Section 2.11. |
CUSIP Numbers | 13 | ||||
| ARTICLE THREE |
| |||||
| REDEMPTION OF SECURITIES |
| |||||
| Section 3.01. |
Redemption of Securities; Applicability of Article | 13 | ||||
| Section 3.02. |
Tax Redemption | 13 | ||||
| Section 3.03. |
Notice of Redemption; Selection of Securities | 14 | ||||
| Section 3.04. |
Payment of Securities Called for Redemption | 15 | ||||
| ARTICLE FOUR |
| |||||
| PARTICULAR COVENANTS OF THE COMPANY AND/OR ANY CO-ISSUER |
| |||||
| Section 4.01. |
Payment of Principal, Premium and Interest | 15 | ||||
| Section 4.02. |
Offices for Notices and Payments, etc. | 15 | ||||
| Section 4.03. |
Provisions as to Paying Agent | 16 | ||||
| Section 4.04. |
Statement by Officers as to Default | 16 | ||||
| Section 4.05. |
Payment of Additional Amounts | 17 | ||||
| ARTICLE FIVE |
| |||||
| SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
| |||||
| Section 5.01. |
Securityholder Lists | 18 | ||||
| Section 5.02. |
Preservation and Disclosure of Lists | 18 | ||||
| Section 5.03. |
Reports by the Company | 19 | ||||
| Section 5.04. |
Reports by the Trustee | 19 | ||||
| ARTICLE SIX |
| |||||
| REMEDIES ON DEFAULT |
| |||||
| Section 6.01. |
Events of Default | 20 | ||||
| Section 6.02. |
Payment of Securities on Default; Suit Therefor | 21 | ||||
| Section 6.03. |
Application of Moneys Collected by Trustee | 22 | ||||
| Section 6.04. |
Proceedings by Securityholders | 23 | ||||
| Section 6.05. |
Remedies Cumulative and Continuing | 23 | ||||
| Section 6.06. |
Direction of Proceedings | 23 | ||||
ii
| Section 6.07. |
Notice of Defaults | 24 | ||||
| Section 6.08. |
Undertaking to Pay Costs | 24 | ||||
| Section 6.09. |
Waiver of Past Defaults | 24 | ||||
| ARTICLE SEVEN |
| |||||
| CONCERNING THE TRUSTEE |
| |||||
| Section 7.01. |
Duties and Responsibilities of Trustee | 24 | ||||
| Section 7.02. |
Reliance on Documents, Opinions, etc. | 25 | ||||
| Section 7.03. |
No Responsibility for Recitals, etc. | 26 | ||||
| Section 7.04. |
Ownership of Securities | 26 | ||||
| Section 7.05. |
Moneys to Be Held in Trust | 26 | ||||
| Section 7.06. |
Compensation, Indemnification and Expenses of Trustee | 27 | ||||
| Section 7.07. |
Officers’ Certificate as Evidence | 27 | ||||
| Section 7.08. |
Conflicting Interest of Trustee | 27 | ||||
| Section 7.09. |
Eligibility of Trustee | 27 | ||||
| Section 7.10. |
Resignation or Removal of Trustee | 27 | ||||
| Section 7.11. |
Acceptance by Successor Trustee | 28 | ||||
| Section 7.12. |
Successor by Merger, etc | 29 | ||||
| Section 7.13. |
Limitations on Rights of Trustee as Creditor | 29 | ||||
| ARTICLE EIGHT |
| |||||
| CONCERNING THE SECURITYHOLDERS |
| |||||
| Section 8.01. |
Action by Securityholders | 29 | ||||
| Section 8.02. |
Proof of Ownership | 30 | ||||
| Section 8.03. |
Who Are Deemed Absolute Owners | 30 | ||||
| Section 8.04. |
Company-Owned Securities Disregarded | 30 | ||||
| Section 8.05. |
Revocation of Consents; Future Securityholders Bound | 30 | ||||
| ARTICLE NINE |
| |||||
| SECURITYHOLDERS’ MEETINGS |
| |||||
| Section 9.01. |
Purposes of Meetings | 31 | ||||
| Section 9.02. |
Call of Meetings by Trustee | 31 | ||||
| Section 9.03. |
Call of Meetings by Company or Securityholders | 31 | ||||
| Section 9.04. |
Qualification for Voting | 31 | ||||
| Section 9.05. |
Regulations | 31 | ||||
| Section 9.06. |
Voting | 32 | ||||
| ARTICLE TEN |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| Section 10.01. |
Supplemental Indentures without Consent of Securityholders | 32 | ||||
| Section 10.02. |
Supplemental Indentures with Consent of Securityholders | 33 | ||||
| Section 10.03. |
Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 34 | ||||
| Section 10.04. |
Notation on Securities | 34 | ||||
| ARTICLE ELEVEN |
| |||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| Section 11.01. |
Company, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms | 34 | ||||
| Section 11.02. |
Successor Person Substituted | 35 | ||||
| ARTICLE TWELVE |
| |||||
| SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
| |||||
| Section 12.01. |
Discharge of Indenture | 35 | ||||
iii
| Section 12.02. |
Deposited Moneys to Be Held in Trust by Trustee | 36 | ||||
| Section 12.03. |
Paying Agent to Repay Moneys Held | 36 | ||||
| Section 12.04. |
Return of Unclaimed Moneys | 36 | ||||
| ARTICLE THIRTEEN |
| |||||
| DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| Section 13.01. |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance | 37 | ||||
| Section 13.02. |
Defeasance and Discharge | 37 | ||||
| Section 13.03. |
Covenant Defeasance | 37 | ||||
| Section 13.04. |
Conditions to Defeasance or Covenant Defeasance | 37 | ||||
| Section 13.05. |
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 39 | ||||
| ARTICLE FOURTEEN |
| |||||
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
| |||||
| Section 14.01. |
Indenture and Securities Solely Corporate Obligations | 39 | ||||
| ARTICLE FIFTEEN | ||||||
| GUARANTEES | ||||||
| Section 15.01. |
Guarantee | 39 | ||||
| Section 15.02. |
Subrogation | 40 | ||||
| Section 15.03. |
Notation of Guarantee | 41 | ||||
| Section 15.04. |
Irish Guarantee Limitation | 41 | ||||
| ARTICLE SIXTEEN |
| |||||
| MISCELLANEOUS PROVISIONS |
| |||||
| Section 16.01. |
Benefits of Indenture Restricted to Parties and Securityholders | 41 | ||||
| Section 16.02. |
Provisions Binding on Successors | 41 | ||||
| Section 16.03. |
Addresses for Notices, etc. | 41 | ||||
| Section 16.04. |
Evidence of Compliance with Conditions Precedent | 41 | ||||
| Section 16.05. |
Legal Holidays | 42 | ||||
| Section 16.06. |
Trust Indenture Act to Control | 42 | ||||
| Section 16.07. |
Execution in Counterparts | 42 | ||||
| Section 16.08. |
New York Contract | 42 | ||||
| Section 16.09. |
Consent to Service | 42 | ||||
| Section 16.10. |
Separability | 43 | ||||
| Section 16.11. |
Assignment | 43 | ||||
| Section 16.12. |
Waiver of Jury Trial; Submission to Jurisdiction | 43 | ||||
| Section 16.13. |
Force Majeure | 43 | ||||
| Section 16.14. |
Judgment Currency | 43 | ||||
| Section 16.15. |
Tax Withholding | 44 | ||||
| Section 16.16. |
Electronic Communications | 44 | ||||
| Section 16.17. |
Sanctions | 44 | ||||
iv
THIS AMENDED AND RESTATED INDENTURE, dated as of [DATE], among Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon plc (formerly known as Aon Limited), a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales and prior to its re-registration, a public limited company formed under the laws of England and Wales named Aon plc (hereinafter sometimes called “Aon UK” or, with respect to any series of Securities for which Aon UK is acting as a guarantor, a “Guarantor”), Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “ANA” or, with respect to any series of Securities for which ANA is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor” and, together with one or more of Aon Ireland, ANA and Aon UK, the “Guarantors”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized 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), is a supplemental indenture amending and restating the Amended Indenture (as defined below). The Company together with any Co-Issuer(s) are hereinafter sometimes referred to as the Issuers.
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 executed and delivered to the Trustee an indenture, dated as of December 3, 2018 (the “Original Indenture”);
WHEREAS, the Aon group has completed a reorganization of its corporate structure (the “Reorganization”) in which pursuant to the effectiveness of a scheme of arrangement under Part 26 of the United Kingdom Companies Act 2006, Aon UK has become an indirect wholly owned subsidiary of Aon Ireland and, as a result thereof, the Company is now (i) an indirect wholly owned subsidiary of Aon Ireland, Aon UK and AGH and (ii) a direct wholly owned subsidiary of ANA;
WHEREAS, in connection with the Reorganization, each of the Company, Aon Ireland, Aon UK and AGH has guaranteed certain obligations under the Original Indenture and the Securities by executing and delivering to the Trustee an indenture, dated as of April 1, 2020, amending and restating the Original Indenture in its entirety (as amended, restated and supplemented from time to time, the “Amended Indenture”);
WHEREAS, each of the Company, Aon Ireland, ANA, Aon UK and AGH desires to effect that the Company issue or the Issuers co-issue from time to time for its lawful purposes Securities evidencing its or their unsecured indebtedness and effect such guarantee of certain obligations by the relevant Guarantors by executing a supplemental indenture to the Amended Indenture pursuant to Section 10.01 thereof by amending and restating herein the Amended Indenture in its entirety; and
WHEREAS, each of the Company, Aon UK, ANA, AGH and Aon Ireland represents that all acts and things necessary to present a valid and binding supplemental indenture and agreement according to its terms have been done and performed, and the execution of this Indenture as a supplemental indenture to the Amended Indenture by each of the Company, Aon Ireland, ANA, Aon UK and AGH has in all respects been duly authorized, and each of the Company, Aon Ireland, ANA, Aon UK and AGH, 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 and for and in consideration of the foregoing premises, each of the Company, Aon UK, ANA, AGH and Aon Ireland 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 One 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”, with respect to the Company, 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 of the Company with respect to this Indenture or any Security.
The term “Board of Directors”, with respect to a Co-Issuer, shall mean the board of directors (or comparable governing body) of such Co-Issuer, the executive committee of such Co-Issuer or any other committee duly authorized to exercise the powers and authority of the board of directors (or comparable governing body) of such Co-Issuer with respect to this Indenture or any Security.
The term “Board of Directors”, with respect to a Guarantor, shall mean the board of directors (or comparable governing body) of such Guarantor, the executive committee of such Guarantor or any other committee duly authorized to exercise the powers and authority of the board of directors (or comparable governing body) of such Guarantor with respect to this Indenture, including any Guarantee.
BOARD RESOLUTION
The term “Board Resolution”, with respect to the Company, shall mean a resolution certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
The term “Board Resolution”, with respect to a Co-Issuer, shall mean either a resolution certified by the Secretary, any Assistant Secretary or any Executive Vice President of such Co-Issuer or a written resolution signed by all the directors of such Co-Issuer to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such Co-Issuer and to be in full force and effect on the date of such certification, and delivered to the Trustee.
The term “Board Resolution”, with respect to a Guarantor, shall mean a written resolution signed by all the directors of such Guarantor or a resolution certified by the Secretary, any Assistant Secretary or any Executive Vice President of such Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.
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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.
CO-ISSUER
The term “Co-Issuer” or “Co-Issuers” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of this Indenture, and thereafter the term “Co-Issuer” or “Co-Issuers” shall mean such successor Person(s).
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 Indenture 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”, with respect to the Company, 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 of the Company and by the Secretary or any Assistant Secretary of the Company.
The term “Company Order”, with respect to a Co-Issuer, means a written order signed in the name of such Co-Issuer by the President or any Executive Vice President or any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary of such Co-Issuer or, for Aon Ireland, by any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be.
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 North LaSalle Street, Suite 700, 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.
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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.
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 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.
GUARANTOR
The term “Guarantor” or “Guarantors” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
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.
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.
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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.
ISSUER
The term “Issuer” means the Company, and the term “Issuers” means the Company and one or more of any Co-Issuers specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Issuer” or “Issuers” shall mean such successor Person(s).
OFFICERS’ CERTIFICATE
The term “Officers’ Certificate”, with respect to the Company, shall mean a certificate signed by the Chairman of the Board of Directors of the Company or the President or any Executive Vice President or any Vice President or the Treasurer of the Company and by the Secretary or any Assistant Secretary of the Company.
The term “Officers’ Certificate”, with respect to a Co-Issuer, shall mean a certificate signed by a director of such Co-Issuer, the Chairman of the Board of Directors of such Co-Issuer, or the President, any Executive Vice President, any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary of such Co-Issuer.
The term “Officers’ Certificate”, with respect to a Guarantor, shall mean a certificate signed by a director of such Guarantor, the Chairman of the Board of Directors of such Guarantor, or the President, any Executive Vice President, any Vice President or the Treasurer of such Guarantor and by the Secretary or any Assistant Secretary of such 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, any Co-Issuer or any 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 and, with respect to any series of Securities for which there is one or more co-issuers, by the Issuers (if the Company and/or the Co-Issuer(s) shall act as its or their 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 and/or the Co-Issuer(s) (if any);
(d) Securities which have been defeased pursuant to Section 13.02; and
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(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 Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, of any Issuer in the Borough of Manhattan, The City of New York, designated and maintained by such Issuer 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.
SHARES
The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of Aon Ireland 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 Aon Ireland 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, and set forth in an Officers’ Certificate of the Company and/or the Issuers, as applicable, 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) whether the Securities will be co-issued by one or more Co-Issuers;
(3) 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);
(4) 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;
(5) the date or dates on which the principal of the Securities of the series is payable;
(6) 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;
(7) whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture from one or more, or all, of the Guarantors;
(8) 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;
(9) 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 Issuer(s), pursuant to any sinking fund or otherwise;
(10) the obligation, if any, of the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 Issuer(s) to select the Securities to be redeemed, repurchased or repaid;
(11) 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
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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 Issuer(s) or a Holder thereof or otherwise, in a currency other than dollars;
(12) the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;
(13) 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;
(14) 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);
(15) any deletions from, modifications of or additions to the Events of Default or covenants of the Issuer(s) and the Guarantors 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);
(16) 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
(17) 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 of the Company and/or a Co-Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and/or such Co-Issuer and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate of the Company and/or such Co-Issuer 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 of the Company and/or the Co-Issuer(s), if applicable, establishing the series, and any Officers’ Certificate of the Company and/or such Co-Issuer, if applicable, or any indenture supplemental hereto relating to such Securities.
After the issue date of any Securities, if additional securities are issued having the same terms and conditions as the existing Securities in all respects (other than the issue date, public offering price, and to the extent applicable, first date of interest accrual and first interest payment date of such notes) (the “Additional Securities”), but that are not fungible with the existing Securities for U.S. federal income tax purposes, the Additional Securities will have a separate CUSIP number.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution of the Company and/or the Co-Issuer, if applicable, (or action taken pursuant thereto), any Officers’ Certificate of the Company and/or the Co-Issuer, if applicable, 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 and/or such Co-Issuer, if applicable, in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.
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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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, or established in one or more Officers’ Certificates of the Company or the Issuers, as applicable, 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 Issuer(s) 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 the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of the Company. Such signatures may be the manual, or facsimile or electronic signatures of the present or any future such officers.
Each Security to be co-issued shall be executed on behalf of the Company by the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of the Company and on behalf of any Co-Issuer by the Chairman or any Vice Chairman of the Board of Directors of the Co-Issuer or by the President or any Executive Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of such Co-Issuer or, for Aon Ireland, by any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be. Such signatures may be the manual, or facsimile or electronic signatures of the present or any future such officers or director.
With respect to any series of Securities to which the provisions of Article Fifteen shall apply, except as otherwise provided in Article Fifteen, a notation of the Guarantee of each Guarantor endorsed on such Securities shall be executed on behalf of such Guarantor by the Chairman of the Board of Directors of such Guarantor, by the President or any Vice President or the Treasurer of such Guarantor or, for Aon Ireland, by any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be. The signature of any of these officers or directors on such notation of Guarantee may be manual, or facsimile or electronic.
Except as otherwise provided in Article Fifteen, 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 or electronic signatures of individuals who were at any time the proper officers of the Company, a Co-Issuer or a Guarantor, as the case may be, shall bind the Company, such Co-Issuer and such 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers may deliver Securities of any series executed by the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 of the Company and/or the Co-Issuer(s), if applicable, 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 of the Company and the Co-Issuer, if applicable, pursuant to Section 16.04 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 a Board Resolution of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee of each Guarantor will constitute valid and binding obligations of such 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 of the Company and/or the Co-Issuer(s), if applicable, 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 and/or the Co-Issuer(s), if applicable, 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, facsimile or electronic 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, and the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Company or any Co-Issuer 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, if the provisions of Article Fifteen apply to such Security, the Guarantors 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 and/or any Co-Issuer (if any) 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 Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, an Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall execute and register or cause to be registered 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of each Guarantor thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and the Co-Issuer(s) (if any) and, with respect to any Guarantee, the applicable 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 Issuer(s) may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Issuer(s) 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.
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Section 2.06. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 for which there is one or more co-issuers, the Issuers 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 Guarantors, 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 Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each 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 Issuer(s) 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 Issuer(s) 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers. Upon the issuance of any substituted Security, the Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers or any agent of the Company, such Co-Issuer (if any) 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 Issuer(s) or, if requested to do so by the Company and/or the Co-Issuer(s) (if any), shall return such cancelled Securities to the Company or such Co-Issuer (if any).
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 Issuer(s) 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 Issuer(s) 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 Three; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article Three, the provisions of such series of Securities shall govern.
Section 3.02. Tax Redemption. The Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, upon the giving of not less than 30 nor more than 90 days’ notice of tax redemption to holders, 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers determine 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 the United Kingdom or Ireland (or, in each case, of any political subdivision or taxing authority thereof); 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 the United Kingdom or Ireland is a party, which change, execution or amendment becomes effective on or after the issue date of the Securities,
any Guarantor would be required to pay Additional Amounts with respect to its 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 such Guarantor; or
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(b) the Company determines and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, determine 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, the United Kingdom or Ireland (or, in each case, any political subdivision or taxing authority thereof), which action is taken or brought on or after the issue date of the Securities under the laws of a jurisdiction other than the United Kingdom or Ireland (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, 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 a Guarantor would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.
(d) Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers will deliver to the Trustee an Officers’ Certificate of the Company and/or such Co-Issuer(s) (if any) stating that each of the Company and such Co-Issuer(s) (if any) 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 and/or the Co-Issuer(s) (if any) delivers such Officers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 deliver or, at the Company’s and such Co-Issuer’s (if any) request and expense, the Trustee shall deliver such notice of redemption at least ten (10) 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 delivery 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantors will deposit in trust with the Trustee or with one or more paying agents (or, if the Company and/or such Co-Issuer(s) (if any) 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers will give the Trustee notice of each redemption at least fifteen (15) 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 Securities to be redeemed shall be selected by lot if the Securities are in definitive form, and, if the Securities are in global form, then in accordance with the procedures of the Depositary; 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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.
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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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantors 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, either Issuer 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, the Co-Issuer(s) (if any) or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, such Co-Issuer(s) (if any) and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company, the Co-Issuer(s) (if any) and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company and the Co-Issuer(s) (if any), 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 AND/OR ANY CO-ISSUER
Section 4.01. Payment of Principal, Premium and Interest. The Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 and/or the Co-Issuer(s) (if any) 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 Issuer(s) 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 Issuer(s) shall fail to designate and 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 Issuer(s) 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 Issuer(s) of its or their obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes. The Issuer(s) 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 The Bank of New York Mellon Trust Company, N.A., located at 2 North LaSalle Street, Suite 700, Chicago, Illinois 60602 and The Bank of New York Mellon Trust Company, N.A. and its affiliate located at 240 Greenwich Street, New York, New York 10286 as a Security Registrar and as the office or agency of the Company and/or the Co-Issuer(s) (if any) 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 and/or the Co-Issuer(s) (if any) 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 Issuer(s) shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it or they, as applicable, 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 or they, as applicable, will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,
(2) that it or they, as applicable, 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 or they, as applicable, will give the Trustee notice of any failure by such Issuer (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 or any Co-Issuer 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 applicable Issuer will promptly notify the Trustee of any failure to take such action.
(c) Whenever the Issuer(s) shall have one or more paying agents for any series of Securities, it or they, as applicable, 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) such Issuer(s) will promptly notify the Trustee of its action or failure so to act.
(d) Anything in this Section to the contrary notwithstanding, such Issuers 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 of the Company, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof either the Company and/or a Co-Issuer 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, 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.
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Section 4.05. Payment of Additional Amounts.
(a) All payments made by a Guarantor (including any successor in interest to any of the foregoing) in respect of its Guarantee shall 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 Ireland, as applicable, or, in each case, by any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), unless such Guarantor is required to withhold or deduct Taxes by law.
If a Guarantor is required to withhold or deduct any amount for or on account of Taxes from any payment made with respect to its Guarantee, such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary in order that that the net amount received in respect of such payments by each beneficial owner, the Trustee or any Agent, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), shall not be less than the amounts that would have been received in respect of such payments on the Guarantees in the absence of such withholding or deduction; provided however that no such Additional Amounts will be payable with respect to Taxes:
(1) that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner of the Securities (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 the United Kingdom or Ireland, as applicable, or, in each case, 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 in respect of a Guarantee;
(4) that would not have been so 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, such Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(5) that would not have been imposed but for the presentation of a Security (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 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;
(7) that would not have been imposed if presentation for payment of the relevant Securities or a Guarantee (where presentation is required), had been made to a paying agent other than the paying agent to which the presentation was made; or
(8) any combination of the foregoing clauses (1) through (7);
nor shall Additional Amounts be paid with respect to any payment in respect of a 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.
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(b) For avoidance of doubt, no Additional Amounts shall be paid with respect to 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 States or the United Kingdom relating to payments by the Issuer(s) under any Securities.
(c) 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 any payment made under a Guarantee shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable in respect thereof.
(d) The obligations of each 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.
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
(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.
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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 Co-Issuer(s) (if any) and the Trustee that none of the Company, any Co-Issuer or the Trustee or any agent of the Company, any Co-Issuer 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 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 actual or 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 and the Co-Issuer(s) (if any). The Company and the Co-Issuer(s) (if any) agree to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange.
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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, any 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 any Guarantee is found to be invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of such Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or
(d) failure on the part of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, such Co-Issuer or, if applicable, such 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, such Co-Issuer or, if applicable, such 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, such Co-Issuer or, if applicable, such Guarantor by the Trustee, or to the Company and, if applicable, such Co-Issuer and, if applicable, such 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 for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, examiner, process adviser, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor or for any substantial part of property of the Company or, if applicable, any Co-Issuer or, if applicable, any 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 for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor for the purposes of a solvent reorganization or reconstruction of the Company, such Co-Issuer or such Guarantor, as applicable, either the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, examiner, process adviser, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor or for any substantial part of the property of the Company or, if applicable, any Co-Issuer or, if applicable, any 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;
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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 for which there is one or more co-issuers, to the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers 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 Co-Issuer(s) (if applicable), the Guarantors (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 Co-Issuer(s) (if applicable) the Guarantors (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 and, with respect to any series of Securities for which there is one or more co-issuers, each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer 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 Guarantors under their respective Guarantees, 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
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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 Issuers (with respect to any series of Securities for which there is one or more co-issuers), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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, any Co-Issuer (with respect to any series of Securities for which there is one or more co-issuers), any 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 U.S. Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, any Co-Issuer (if applicable), any Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, any Co-Issuer (if applicable), any Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, such Co-Issuer (if applicable), such 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, any Co-Issuer (if applicable), any Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, such Co-Issuer (if applicable), such 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 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, in each of its capacities hereunder, 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;
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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, any Co-Issuer (if applicable) 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 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.
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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 in accordance with Section 7.02(i) 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
(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:
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(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;
(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 or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President or the Treasurer of the Company and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of the Company (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution of the Company 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 any Co-Issuer mentioned herein shall be sufficiently evidenced by an instrument signed in the name of such Co-Issuer by the Chairman or any Vice Chairman of the Board of Directors of such Co-Issuer or by the President or any Executive Vice President or any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of such Co-Issuer (unless other evidence in respect thereof be herein specifically prescribed) or, for Aon Ireland, any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be; and any Board Resolution of any Co-Issuer may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of such Co-Issuer; any request, direction, order or demand of any Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of such Guarantor by the Chairman or any Vice Chairman of the Board of Directors of such Guarantor or by the President or any Executive Vice President or any Vice President or the Treasurer of such Guarantor and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of such Guarantor (unless other evidence in respect thereof be herein specifically prescribed) or, for Aon Ireland, any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be; and any Board Resolution of any Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of such 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;
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(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, any Co-Issuer or any 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 knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written notice 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, any Co-Issuer or any 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, the Co-Issuer(s), as applicable, and the Guarantors, 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 and/or the Co-Issuer with respect to any series of Securities for which there is one or more co-issuers, of Securities or the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee or any agent of the Company, any Co-Issuer, any 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, a Co-Issuer, a 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer 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 the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President or the Treasurer or any Assistant Treasurer of the Company and/or, with respect to any series of Securities for which there is one or more co-issuers, upon the written order of the Co-Issuer(s), signed by the Chairman or any Vice Chairman of the Board of Directors of a Co-Issuer or by the President or any Executive Vice President or any Vice President or the Treasurer or any Assistant Treasurer of a Co-Issuer and for Aon Ireland, any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be.
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Section 7.06. Compensation, Indemnification and Expenses of Trustee. The Company and, with respect to any series of Securities for which there is one or more co-issuers, each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, each Issuer and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each Guarantor, jointly and severally also covenant to indemnify the Trustee and its directors, officers, employees, and agents 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 and, with respect to any series of Securities for which there is one or more co-issuers, the obligations of each of the Issuers 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 of the Company, a Co-Issuer, as applicable, or of a Guarantor, as applicable, delivered to the Trustee, and such Officers’ 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.
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, and, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company and, with respect to any series of Securities
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for which there is one or more co-issuers, to the Issuers, 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, by order of the Board of Directors of each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, any Issuer 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Board of Directors of each Issuer 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and appoint a successor trustee with respect to the Securities of such series with the consent of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers.
(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, each Co-Issuer each 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, any Co-Issuer, any Guarantor or the successor trustee, the
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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, each Co-Issuer and each 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, each Issuer (if any of such series of Securities is co-issues by one or more co-issuers), each 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers fail 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 and/or the Co-Issuer(s), if applicable.
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 Co-Issuers or the Guarantors), 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 Co-Issuer(s) (if applicable), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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, any Co-Issuer or, if applicable, any 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, such Co-Issuer or, if applicable, such Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution of the Company, such Co-Issuer or such 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, with respect to any series of Securities for which there is one or more co-issuers, any Issuers or by any person directly or indirectly controlling or controlled by or under direct or indirect control with any Issuer, 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer. 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, each Co-Issuer (if applicable), each Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.
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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 Nine for any of the following purposes:
(1) to give any notice to the Company, a Co-Issuer (if applicable), a 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, 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, pursuant to a Board Resolution of the Issuers, 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, such Co-Issuer(s), if applicable, 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 or the Co-Issuer(s) and its or their 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or by Securityholders as provided in Section 9.03, in which case the Company, the Issuers 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers 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 of the Company, each Issuer (if applicable), when authorized by Board Resolutions of the Issuers (with respect to any series of Securities for which there is one or more co-issuers), each Guarantor (if applicable), when authorized by a Board Resolution of such Guarantor, 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, a Co-Issuer or a Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company, such Co-Issuer or such Guarantor pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company, a Co-Issuer or a 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, a Co-Issuer or a 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
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(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, each of the Co-Issuers and, if applicable, each of the Guarantors 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, each Co-Issuer (if applicable), each 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 of the Company, each Issuer (if applicable), when authorized by Board Resolutions of the Issuers (with respect to any series of Securities for which there is one or more co-issuers), each Guarantor (if applicable), when authorized by a Board Resolution of such 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 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, each Co-Issuer, if applicable, and each Guarantor, if applicable, accompanied by a copy of a Board Resolution of the Company, and, if applicable, a Board Resolution of each Co-Issuer and, if applicable, a Board Resolution of each 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, each Co-Issuer and, if applicable, each 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.
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Promptly after the execution and delivery by the Company, the Co-Issuer(s), if applicable, the Guarantors, 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 Co-Issuers or, if applicable, the Guarantors 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 Co-Issuers (if applicable), the Guarantors (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 of the Company, Officers’ Certificates of the Co-Issuers and Officers’ Certificates of the Guarantors 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, the Board of Directors of the Issuers, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company or the Issuers, if applicable, 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, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms. So long as any Securities shall be Outstanding, none of the Company, or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, such Co-Issuer or such 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, such Co-Issuer or such 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, such Co-Issuer or such 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 and/or the Co-Issuer(s), 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 and/or the Co-Issuer(s), if applicable, to be performed or observed or, in the case of such 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 such 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, 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, such Co-Issuer or such Guarantor, as applicable, as a result of such transaction as having been incurred by the Company, such Co-Issuer or such 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
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(c) the Company and/or the Co-Issuer(s), as applicable, has delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or such Guarantor has delivered to the Trustee an Officers’ Certificate of such 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 Eleven 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, any Co-Issuer or any Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company, such Co-Issuer or such 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, such Co-Issuer or such Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company, a Co-Issuer or a 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and thereafter repaid to the Company or the Issuers, if applicable, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers;
and the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors in the case of (A), (B) or (C) above, has or have 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;
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(b) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors has or have paid or caused to be paid all other sums payable hereunder by the Company or the Issuers, if applicable, with respect to the Outstanding Securities of such series; and
(c) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors has or have delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuers or of such Guarantors, as the case may be, 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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;
(3) Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors to repurchase or repay, and the obligations of the Company of, if applicable, the Issuers or, if applicable, the Guarantors 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 or the Issuers, if applicable, 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 for which there is one or more co-issuers, the Issuers’ and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors’ 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 or any Co-Issuer 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors, as the case may be, from time to time upon request of the Company or the Guarantors, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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, the Issuers or the Guarantors, 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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.
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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 a Board Resolution of the Company, or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers may at their option by Board Resolutions of the Issuers, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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:
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(a) The Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 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 or a Co-Issuer, if applicable, 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors have 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 beneficial owners 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners 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.
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(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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers in connection therewith pursuant to Section 3.01.
(h) The Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall have delivered to the Trustee an Officers’ Certificate of the Company or the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or any Co-Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers from time to time upon request of the Company or the Issuers, if applicable, 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.
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 Co-Issuer(s), the Guarantors or any successor Person to either of them, either directly or through the Company, the Co-Issuer(s), the Guarantors 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
GUARANTEES
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 Guarantees. 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. Each Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, 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
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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 or, with respect to any series of Securities for which there is one or more co-issuers, by the Issuers 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. Each 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.
Each Guarantor hereby agrees that its 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 or, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of its 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 such Guarantor’s obligations under the Guarantee.
Each 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, first make demand upon or seek to enforce remedies against the Company or the Co-Issuer(s), if applicable, 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 of such Guarantor.
Each 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 such Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by such Guarantor to such Holder or the Trustee, as the case may be.
Each 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, any right to require a proceeding first against the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or any other person, protest, notice of dishonor or non-payment to or on such Guarantor or the Company or such Co-Issuer, if applicable, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company or such Co-Issuer, if applicable, under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.
Each Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge a Guarantor of its obligations under its Guarantee in respect of such Guaranteed Obligation.
The Guarantees 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 a Co-Issuer or otherwise.
The obligations of each Guarantor under its 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 a Co-Issuer or by any defense which the Company or a Co-Issuer 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 the Guarantees shall impair any such right, nor shall it be construed to be a waiver thereof.
Notwithstanding anything to the contrary in this Indenture, a Board Resolution of the Company or a Co-Issuer, or one or more supplemental indentures supplemental hereto, providing for the issuance of a series of Securities pursuant to Section 2.01 may provide that any one or more, or all, of the Guarantors guarantee such series of Securities as provided in this Article Fifteen.
Section 15.02. Subrogation. Each Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company and any Co-Issuer, if applicable, in respect of any amounts paid to such Holder or the Trustee, as the case may be, by such Guarantor pursuant to the provisions of the Guarantee; provided, however, that no Guarantor shall 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.
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Section 15.03. Notation of Guarantee. To further evidence the Guarantee set forth in this Article Fifteen, except as provided below, each 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 each Guarantor pursuant to Section 2.03. Each 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 Guarantors with respect to such Guarantee.
Notwithstanding anything in this Indenture to the contrary, each of Aon Ireland, ANA, Aon UK and AGH may, but shall have no obligation to, execute a notation of its Guarantee with respect to any Securities issued pursuant to the Original Indenture. Such Guarantee of each of Aon Ireland, ANA, Aon UK and AGH shall be sufficiently evidenced by its execution of this Indenture and, as provided in the second paragraph of this Section 15.03, such Guarantee shall remain in full force and effect notwithstanding no notation of such Guarantee is affixed to any such Securities.
Section 15.04. Irish Guarantee Limitation. A Guarantee shall not apply to the extent it would result in such Guarantee constituting unlawful financial assistance within the meaning of Section 82 of the Companies Act 2014 of Ireland (as amended) or constitute a breach of Section 239 of the Companies Act 2014 of Ireland (as amended).
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, the Co-Issuer(s) or the Guarantors 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 a Co-Issuer or a 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 UK, ANA, Aon Ireland or AGH: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or a Co-Issuer or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
Section 16.04. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company, any Co-Issuer or any Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company, such Co-Issuer or such Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or of such 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.
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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, any Co-Issuer or any 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, any Co-Issuer or any 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, such Co-Issuer or such 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. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
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, without regard to the principles of conflicts of laws.
Section 16.09. Consent to Service. The Company, each Co-Issuer and each 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 Company, each Co-Issuer and each 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 Company, such Co-Issuer or Guarantor, shall be deemed in every respect effective service of process upon the Company, such Co-Issuer or Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Company, such Co-Issuer or Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Company, each Co-Issuer or 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.
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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. Each of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or the Issuers, as applicable, provided that, in the event of any such assignment, the Company or the Issuers, as applicable, 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; Submission to Jurisdiction. EACH OF THE COMPANY, THE CO-ISSUERS, THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF 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. Each of the Company, the Co-Issuers and the Guarantors hereby irrevocably submit to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Southern District in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture, the Guarantee and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
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, epidemics, pandemics or similar outbreaks of infectious disease, 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. Each Issuer and each 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 (as determined by an exchange rate agent to be appointed by the applicable Issuer or Guarantor) at which in accordance with normal banking procedures the exchange rate agent could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which a final unappealable judgment is entered, unless such day is not a Business Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate (as determined by an exchange rate agent) at which in accordance with normal banking procedures the exchange rate agent could purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day 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.
43
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.
Section 16.16. Electronic Communications. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company and the Co-Issuer(s), if applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and the Co-Issuer(s), if applicable, whenever a person is to be added or deleted from the listing. If the Company or any of the Co-Issuer(s), if applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. Each of the Company and the Co-Issuer(s), if applicable, understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Co-Issuer(s), if applicable, shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and the Co-Issuer(s), if applicable, and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and the Co-Issuer(s), if applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. Each of the Company and the Co-Issuer(s), if applicable, agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company or the Co-Issuer(s), if applicable, as the case may be; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this Indenture and any other documents delivered pursuant hereto (including authentication of the Securities) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Section 16.17. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature pages follow.]
44
IN WITNESS WHEREOF, each of the parties has caused this Amended and Restated Indenture to be duly signed, all as of the day and year first above written.
| Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon plc, a public limited company duly incorporated and existing under the laws of Ireland | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon North America, Inc., a corporation duly organized and existing under the laws of the States of Delaware | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales | ||
| By: |
| |
| Name: | ||
| Title: | ||
| The Bank of New York Mellon Trust Company, N.A., | ||
| as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Amended and Restated Indenture]
Annex A
NOTATION OF GUARANTEE
For value received, [each of] the undersigned Guarantor[s] (which term includes any successor Person[s] 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 [and the Co-Issuer[s]] 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 [each of] the Guarantor[s] 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.
| [Guarantor[s]] | ||
| By: |
| |
| [Name] | ||
| [Title] | ||
A-1
Exhibit 4.31
AON GLOBAL HOLDINGS PLC
Company
the Co-Issuer(s) party hereto
the Guarantors party hereto
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
INDENTURE
Dated as of [DATE]
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 Global Holdings plc, the Co-Issuers party thereto, the Guarantors party thereto 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 | 6 | ||||
| Section 2.02. |
Form of Trustee’s Certificate of Authentication | 8 | ||||
| Section 2.03. |
Form, Execution, Authentication, Delivery and Dating of Securities | 9 | ||||
| Section 2.04. |
Currency; Denominations; Regular Record Date | 10 | ||||
| Section 2.05. |
Exchange and Registration of Transfer of Securities | 11 | ||||
| Section 2.06. |
Temporary Securities | 12 | ||||
| Section 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 12 | ||||
| Section 2.08. |
Securities in Global Form | 13 | ||||
| Section 2.09. |
Cancellation | 13 | ||||
| Section 2.10. |
Computation of Interest | 13 | ||||
| Section 2.11. |
CUSIP Numbers | 13 | ||||
| Article Three |
| |||||
| REDEMPTION OF SECURITIES |
| |||||
| Section 3.01. |
Redemption of Securities; Applicability of Article | 13 | ||||
| Section 3.02. |
Tax Redemption | 13 | ||||
| Section 3.03. |
Notice of Redemption; Selection of Securities | 14 | ||||
| Section 3.04. |
Payment of Securities Called for Redemption | 15 | ||||
| Article Four |
| |||||
| PARTICULAR COVENANTS OF THE COMPANY AND/OR ANY CO-ISSUER |
| |||||
| Section 4.01. |
Payment of Principal, Premium and Interest | 15 | ||||
| Section 4.02. |
Offices for Notices and Payments, etc | 15 | ||||
| Section 4.03. |
Provisions as to Paying Agent | 16 | ||||
| Section 4.04. |
Statement by Officers as to Default | 16 | ||||
| Section 4.05. |
Payment of Additional Amounts | 17 | ||||
| Article Five |
| |||||
| SECURITYHOLDER LISTS AND REPORTS BY |
| |||||
| THE COMPANY AND THE TRUSTEE |
| |||||
| Section 5.01. |
Securityholder Lists | 18 | ||||
| Section 5.02. |
Preservation and Disclosure of Lists | 18 | ||||
| Section 5.03. |
Reports by the Company | 19 | ||||
| Section 5.04. |
Reports by the Trustee | 19 | ||||
| Article Six |
| |||||
| REMEDIES ON DEFAULT |
| |||||
| Section 6.01. |
Events of Default | 20 | ||||
| Section 6.02. |
Payment of Securities on Default; Suit Therefor | 21 | ||||
| Section 6.03. |
Application of Moneys Collected by Trustee | 22 | ||||
| Section 6.04. |
Proceedings by Securityholders | 23 | ||||
| Section 6.05. |
Remedies Cumulative and Continuing | 23 | ||||
ii
| Section 6.06. |
Direction of Proceedings | 23 | ||||
| Section 6.07. |
Notice of Defaults | 24 | ||||
| Section 6.08. |
Undertaking to Pay Costs | 24 | ||||
| Section 6.09. |
Waiver of Past Defaults | 24 | ||||
| Article Seven |
| |||||
| CONCERNING THE TRUSTEE |
| |||||
| Section 7.01. |
Duties and Responsibilities of Trustee | 24 | ||||
| Section 7.02. |
Reliance on Documents, Opinions, etc | 25 | ||||
| Section 7.03. |
No Responsibility for Recitals, etc | 26 | ||||
| Section 7.04. |
Ownership of Securities | 26 | ||||
| Section 7.05. |
Moneys to Be Held in Trust | 26 | ||||
| Section 7.06. |
Compensation, Indemnification and Expenses of Trustee | 27 | ||||
| Section 7.07. |
Officers’ Certificate as Evidence | 27 | ||||
| Section 7.08. |
Conflicting Interest of Trustee | 27 | ||||
| Section 7.09. |
Eligibility of Trustee | 27 | ||||
| Section 7.10. |
Resignation or Removal of Trustee | 28 | ||||
| Section 7.11. |
Acceptance by Successor Trustee | 28 | ||||
| Section 7.12. |
Successor by Merger, etc | 29 | ||||
| Section 7.13. |
Limitations on Rights of Trustee as Creditor | 29 | ||||
| Article Eight |
| |||||
| CONCERNING THE SECURITYHOLDERS |
| |||||
| Section 8.01. |
Action by Securityholders | 29 | ||||
| Section 8.02. |
Proof of Ownership | 30 | ||||
| Section 8.03. |
Who Are Deemed Absolute Owners | 30 | ||||
| Section 8.04. |
Company-Owned Securities Disregarded | 30 | ||||
| Section 8.05. |
Revocation of Consents; Future Securityholders Bound | 30 | ||||
| Article Nine |
| |||||
| SECURITYHOLDERS’ MEETINGS |
| |||||
| Section 9.01. |
Purposes of Meetings | 31 | ||||
| Section 9.02. |
Call of Meetings by Trustee | 31 | ||||
| Section 9.03. |
Call of Meetings by Company or Securityholders | 31 | ||||
| Section 9.04. |
Qualification for Voting | 31 | ||||
| Section 9.05. |
Regulations | 31 | ||||
| Section 9.06. |
Voting | 32 | ||||
| Article Ten |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| Section 10.01. |
Supplemental Indentures without Consent of Securityholders | 32 | ||||
| Section 10.02. |
Supplemental Indentures with Consent of Securityholders | 33 | ||||
| Section 10.03. |
Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 34 | ||||
| Section 10.04. |
Notation on Securities | 34 | ||||
| Article Eleven |
| |||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| Section 11.01. |
Company, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms | 34 | ||||
| Section 11.02. |
Successor Person Substituted | 35 | ||||
iii
| Article Twelve |
| |||||
| SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
| |||||
| Section 12.01. |
Discharge of Indenture | 35 | ||||
| Section 12.02. |
Deposited Moneys to Be Held in Trust by Trustee | 36 | ||||
| Section 12.03. |
Paying Agent to Repay Moneys Held | 36 | ||||
| Section 12.04. |
Return of Unclaimed Moneys | 36 | ||||
| Article Thirteen |
| |||||
| DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| Section 13.01. |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance | 37 | ||||
| Section 13.02. |
Defeasance and Discharge | 37 | ||||
| Section 13.03. |
Covenant Defeasance | 37 | ||||
| Section 13.04. |
Conditions to Defeasance or Covenant Defeasance | 37 | ||||
| Section 13.05. |
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 39 | ||||
| Article Fourteen |
| |||||
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
| |||||
| Section 14.01. |
Indenture and Securities Solely Corporate Obligations | 39 | ||||
| Article Fifteen |
| |||||
| GUARANTEES |
| |||||
| Section 15.01. |
Guarantee | 39 | ||||
| Section 15.02. |
Subrogation | 40 | ||||
| Section 15.03. |
Notation of Guarantee | 41 | ||||
| Section 15.04. |
Irish Guarantee Limitation | 41 | ||||
| Article Sixteen |
| |||||
| MISCELLANEOUS PROVISIONS |
| |||||
| Section 16.01. |
Benefits of Indenture Restricted to Parties and Securityholders | 41 | ||||
| Section 16.02. |
Provisions Binding on Successors | 41 | ||||
| Section 16.03. |
Addresses for Notices, etc | 41 | ||||
| Section 16.04. |
Evidence of Compliance with Conditions Precedent | 41 | ||||
| Section 16.05. |
Legal Holidays | 42 | ||||
| Section 16.06. |
Trust Indenture Act to Control | 42 | ||||
| Section 16.07. |
Execution in Counterparts | 42 | ||||
| Section 16.08. |
New York Contract | 42 | ||||
| Section 16.09. |
Consent to Service | 42 | ||||
| Section 16.10. |
Separability | 43 | ||||
| Section 16.11. |
Assignment | 43 | ||||
| Section 16.12. |
Waiver of Jury Trial; Submission to Jurisdiction | 43 | ||||
| Section 16.13. |
Force Majeure | 43 | ||||
| Section 16.14. |
Judgment Currency | 43 | ||||
| Section 16.15. |
Tax Withholding | 44 | ||||
| Section 16.16. |
Electronic Communications | 44 | ||||
| Section 16.17. |
Sanctions | 44 | ||||
iv
THIS INDENTURE, dated as of [DATE] among Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called the “Company”), Aon plc, a public limited company duly incorporated under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “Aon UK” or, with respect to any series of Securities for which Aon UK is acting as a guarantor, a “Guarantor”), Aon North America, Inc., a corporation duly organized and existing under the laws of Delaware (hereinafter sometimes called “ANA” or, with respect to any series of Securities for which ANA is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “Aon Delaware” or, with respect to any series of Securities for which Aon Delaware is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor” and, together with one or more of Aon Ireland, Aon UK and ANA, the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized 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). The Company together with any Co-Issuer(s) are hereinafter sometimes referred to as the Issuers.
WITNESSETH:
WHEREAS, each of the Company, Aon Ireland, Aon UK, ANA and Aon Delaware deems it necessary for the Company to issue or the Issuers to co-issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its or their unsecured indebtedness and has executed and delivered to the Trustee 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 relevant Guarantors, 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, Aon Ireland, Aon UK, ANA and Aon Delaware 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, Aon Ireland, Aon UK, ANA and Aon Delaware has in all respects been duly authorized, and each of the Company, Aon Ireland, Aon UK, ANA and Aon Delaware, 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 and for and in consideration of the foregoing premises, each of the Company, Aon Ireland, Aon UK, ANA and Aon Delaware 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 One 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; |
1
| (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”, with respect to the Company, 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 of the Company with respect to this Indenture or any Security.
The term “Board of Directors”, with respect to a Co-Issuer, shall mean the board of directors (or comparable governing body) of such Co-Issuer, the executive committee of such Co-Issuer or any other committee duly authorized to exercise the powers and authority of the board of directors (or comparable governing body) of such Co-Issuer with respect to this Indenture or any Security.
The term “Board of Directors”, with respect to a Guarantor, shall mean the board of directors (or comparable governing body) of such Guarantor, the executive committee of such Guarantor or any other committee duly authorized to exercise the powers and authority of the board of directors (or comparable governing body) of such Guarantor with respect to this Indenture, including any Guarantee.
BOARD RESOLUTION
The term “Board Resolution”, with respect to the Company, shall mean a resolution certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
The term “Board Resolution”, with respect to a Co-Issuer, shall mean either a resolution certified by the Secretary, any Assistant Secretary or any Executive Vice President of such Co-Issuer or a written resolution signed by all the directors of such Co-Issuer to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such Co-Issuer and to be in full force and effect on the date of such certification, and delivered to the Trustee.
The term “Board Resolution”, with respect to a Guarantor, shall mean a written resolution signed by all the directors of such Guarantor or a resolution certified by the Secretary, any Assistant Secretary or any Executive Vice President of such Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such 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.
CO-ISSUER
The term “Co-Issuer” or “Co-Issuers” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of this Indenture, and thereafter the term “Co-Issuer” or “Co-Issuers” shall mean such successor Person(s).
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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 Indenture 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”, with respect to the Company, means a written order signed in the name of the Company by any director of the Company and by the Secretary of the Company.
The term “Company Order”, with respect to a Co-Issuer, means a written order signed in the name of such Co-Issuer by the President or any Executive Vice President or any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary of such Co-Issuer or, for Aon Ireland, by any director of Aon Ireland or, for Aon UK, by any director or company secretary of Aon UK, as the case may be.
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 North LaSalle Street, Suite 700, 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.
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.
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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 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.
GUARANTOR
The term “Guarantor” or “Guarantors” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
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.
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.
ISSUER
The term “Issuer” means the Company, and the term “Issuers” means the Company and one or more of any Co-Issuers specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Issuer” or “Issuers” shall mean such successor Person(s).
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OFFICERS’ CERTIFICATE
The term “Officers’ Certificate”, with respect to the Company, shall mean a certificate signed by the Chairman of the Board of Directors of the Company or the President or any Executive Vice President or any Vice President or the Treasurer of the Company and by the Secretary or any Assistant Secretary of the Company.
The term “Officers’ Certificate”, with respect to a Co-Issuer, shall mean a certificate signed by a director of such Co-Issuer, the Chairman of the Board of Directors of such Co-Issuer, or the President, any Executive Vice President, any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary of such Co-Issuer.
The term “Officers’ Certificate”, with respect to a Guarantor, shall mean a certificate signed by a director of such Guarantor, the Chairman of the Board of Directors of such Guarantor, or the President, any Executive Vice President, any Vice President or the Treasurer of such Guarantor and by the Secretary or any Assistant Secretary of such 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, any Co-Issuer or any 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 and, with respect to any series of Securities for which there is one or more co-issuers, by the Issuers (if the Company and/or the Co-Issuer(s) shall act as its or their 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 and/or the Co-Issuer(s) (if any);
(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 Issuer(s) upon the issuance of such Securities.
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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 and, with respect to any series of Securities for which there is one or more co-issuers, of any Issuer in the Borough of Manhattan, The City of New York, designated and maintained by such Issuer 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.
SHARES
The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of Aon Ireland 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 Aon Ireland 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.
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The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, and set forth in an Officers’ Certificate of the Company and/or the Issuers, as applicable, 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) whether the Securities will be co-issued by one or more Co-Issuers;
(3) 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);
(4) 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;
(5) the date or dates on which the principal of the Securities of the series is payable;
(6) 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;
(7) whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture from one or more, or all, of the Guarantors;
(8) 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;
(9) 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 Issuer(s), pursuant to any sinking fund or otherwise;
(10) the obligation, if any, of the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 Issuer(s) to select the Securities to be redeemed, repurchased or repaid;
(11) 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 Issuer(s) or a Holder thereof or otherwise, in a currency other than dollars;
(12) the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;
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(13) 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;
(14) 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);
(15) any deletions from, modifications of or additions to the Events of Default or covenants of the Issuer(s) and the Guarantors 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);
(16) 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
(17) 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 of the Company and/or a Co-Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and/or such Co-Issuer and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate of the Company and/or such Co-Issuer 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 of the Company and/or the Co-Issuer(s), if applicable, establishing the series, and any Officers’ Certificate of the Company and/or such Co-Issuer, if applicable, or any indenture supplemental hereto relating to such Securities.
After the issue date of any Securities, if additional securities are issued having the same terms and conditions as the existing Securities in all respects (other than the issue date, public offering price, and to the extent applicable, first date of interest accrual and first interest payment date of such notes) (the “Additional Securities”), but that are not fungible with the existing Securities for U.S. federal income tax purposes, the Additional Securities will have a separate CUSIP number.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution of the Company and/or the Co-Issuer, if applicable, (or action taken pursuant thereto), any Officers’ Certificate of the Company and/or the Co-Issuer, if applicable, 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 and/or such Co-Issuer, if applicable, 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:
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[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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, or established in one or more Officers’ Certificates of the Company or the Issuers, as applicable, 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 Issuer(s) 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 the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of the Company. Such signatures may be the manual, or facsimile or electronic signatures of the present or any future such officers.
Each Security to be co-issued shall be executed on behalf of the Company by any director of the Board of Directors of the Company or by the Secretary of the Company and on behalf of any Co-Issuer by the Chairman or any Vice Chairman of the Board of Directors of the Co-Issuer or by the President or any Executive Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of such Co-Issuer or, for Aon Ireland, by any director of Aon Ireland or, for Aon UK, by any director or company secretary of Aon UK, as the case may be. Such signatures may be the manual, or facsimile or electronic signatures of the present or any future such officers or director.
With respect to any series of Securities to which the provisions of Article Fifteen shall apply, except as otherwise provided in Article Fifteen, a notation of the Guarantee of each Guarantor endorsed on such Securities shall be executed on behalf of such Guarantor by the Chairman of the Board of Directors of such Guarantor, by the President or any Vice President or the Treasurer of such Guarantor or, for Aon Ireland, by any director of Aon Ireland or, for Aon UK, by any director or company secretary of Aon UK, as the case may be. The signature of any of these officers or directors on such notation of Guarantee may be manual, or facsimile or electronic.
Except as otherwise provided in Article Fifteen, 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 or electronic signatures of individuals who were at any time the proper officers of the Company, a Co-Issuer or a Guarantor, as the case may be, shall bind the Company, such Co-Issuer and such 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers may deliver Securities of any series executed by the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 of the Company and/or the Co-Issuer(s), if applicable, 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 of the Company and the Co-Issuer, if applicable, pursuant to Section 16.04 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 a Board Resolution of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee of each Guarantor will constitute valid and binding obligations of such 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 of the Company and/or the Co-Issuer(s), if applicable, 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 and/or the Co-Issuer(s), if applicable, 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, facsimile or electronic 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, and the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Company or any Co-Issuer 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
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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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, if the provisions of Article Fifteen apply to such Security, the Guarantors 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 and/or any Co-Issuer (if any) 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 Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, an Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall execute and register or cause to be registered 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of each Guarantor thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and the Co-Issuer(s), if any, and, with respect to any Guarantee, the applicable 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 Issuer(s) may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Issuer(s) 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.
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Section 2.06. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 for which there is one or more co-issuers, the Issuers 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 Guarantors, 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 Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each 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 Issuer(s) 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 Issuer(s) 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers. Upon the issuance of any substituted Security, the Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers or any agent of the Company, such Co-Issuer (if any) 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 Issuer(s) or, if requested to do so by the Company and/or the Co-Issuer(s) (if any), shall return such cancelled Securities to the Company or such Co-Issuer (if any).
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 Issuer(s) 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 Issuer(s) 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 Three; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article Three, the provisions of such series of Securities shall govern.
Section 3.02. Tax Redemption. The Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, upon the giving of not less than 30 nor more than 90 days’ notice of tax redemption to holders, 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers determine 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 the United Kingdom or Ireland (or, in each case, of any political subdivision or taxing authority thereof); 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 the United Kingdom or Ireland is a party, which change, execution or amendment becomes effective on or after the issue date of the Securities, any Guarantor would be required to pay Additional Amounts with respect to its 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 such Guarantor; or
(b) the Company determines and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, determine 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, the United Kingdom or Ireland (or, in each case, any political subdivision or taxing authority thereof), which action is taken or brought on or after the issue date of the Securities under the laws of a jurisdiction other than the United Kingdom or Ireland (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, there is a substantial probability that the circumstances described in subsection (a) above would exist.
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(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 a Guarantor would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.
(d) Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers will deliver to the Trustee an Officers’ Certificate of the Company and/or such Co-Issuer(s) (if any) stating that each of the Company and such Co-Issuer(s) (if any) 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 and/or the Co-Issuer(s) (if any) delivers such Officers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 deliver or, at the Company’s and such Co-Issuer’s (if any) request and expense, the Trustee shall deliver such notice of redemption at least ten (10) 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 delivery 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantors will deposit in trust with the Trustee or with one or more paying agents (or, if the Company and/or such Co-Issuer(s) (if any) 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers will give the Trustee notice of each redemption at least fifteen (15) 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 Securities to be redeemed shall be selected by lot if the Securities are in definitive form, and, if the Securities are in global form, then in accordance with the procedures of the Depositary; 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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.
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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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantors 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, and, with respect to any series of Securities for which there is one or more co-issuers, either Issuer 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, the Co-Issuer(s) (if any) or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, such Co-Issuer(s) (if any) and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company, the Co-Issuer(s) (if any) and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company and the Co-Issuer(s) (if any), 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 AND/OR ANY CO-ISSUER
Section 4.01. Payment of Principal, Premium and Interest. The Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 and/or the Co-Issuer(s) (if any) 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 Issuer(s) 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 Issuer(s) shall fail to designate and 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 Issuer(s) 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 Issuer(s) of its or their obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes. The Issuer(s) 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 The Bank of New York Mellon Trust Company, N.A., located at 2 North LaSalle Street, Suite 700, Chicago, Illinois 60602 and The Bank of New York Mellon Trust Company, N.A. and its affiliate located at 240 Greenwich Street, New York, New York 10286 as a Security Registrar and as the office or agency of the Company and/or the Co-Issuer(s) (if any) 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 and/or the Co-Issuer(s) (if any) 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 Issuer(s) shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it or they, as applicable, 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 or they, as applicable, will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,
(2) that it or they, as applicable, 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 or they, as applicable, will give the Trustee notice of any failure by such Issuer (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 or any Co-Issuer 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 applicable Issuer will promptly notify the Trustee of any failure to take such action.
(c) Whenever the Issuer(s) shall have one or more paying agents for any series of Securities, it or they, as applicable, 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) such Issuer(s) will promptly notify the Trustee of its action or failure so to act.
(d) Anything in this Section to the contrary notwithstanding, such Issuers 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 of the Company, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof either the Company and/or a Co-Issuer 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 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.
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Section 4.05. Payment of Additional Amounts.
(a) All payments made by a Guarantor (including any successor in interest to any of the foregoing) in respect of its Guarantee shall 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 Ireland, as applicable, or, in each case, by any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), unless such Guarantor is required to withhold or deduct Taxes by law.
If a Guarantor is required to withhold or deduct any amount for or on account of Taxes from any payment made with respect to its Guarantee, such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary in order that that the net amount received in respect of such payments by each beneficial owner, the Trustee or any Agent, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), shall not be less than the amounts that would have been received in respect of such payments on the Guarantees in the absence of such withholding or deduction; provided however that no such Additional Amounts will be payable with respect to Taxes:
(1) that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner of the Securities (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 the United Kingdom or Ireland, as applicable, or, in each case, 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 in respect of a Guarantee;
(4) that would not have been so 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, such Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(5) that would not have been imposed but for the presentation of a Security (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 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;
(7) that would not have been imposed if presentation for payment of the relevant Securities or a Guarantee (where presentation is required), had been made to a paying agent other than the paying agent to which the presentation was made; or
(8) any combination of the foregoing clauses (1) through (7);
nor shall Additional Amounts be paid with respect to any payment in respect of a 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.
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(b) For avoidance of doubt, no Additional Amounts shall be paid with respect to 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 States or the United Kingdom relating to payments by the Issuer(s) under any Securities.
(c) 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 any payment made under a Guarantee shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable in respect thereof.
(d) The obligations of each 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.
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
(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.
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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 Co-Issuer(s) (if any) and the Trustee that none of the Company, any Co-Issuer or the Trustee or any agent of the Company, any Co-Issuer 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 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 actual or 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 and the Co-Issuer(s) (if any). The Company and the Co-Issuer(s) (if any) agree to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange.
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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, any 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 any Guarantee is found to be invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of such Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or
(d) failure on the part of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, such Co-Issuer or, if applicable, such 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, such Co-Issuer or, if applicable, such 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, such Co-Issuer, or, if applicable, such Guarantor by the Trustee, or to the Company and, if applicable, such Co-Issuer and, if applicable, such 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 for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, examiner, process adviser, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor or for any substantial part of property of the Company or, if applicable, any Co-Issuer or, if applicable, any 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 for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor for the purposes of a solvent reorganization or reconstruction of the Company, such Co-Issuer or such Guarantor, as applicable, either the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, examiner, process adviser, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor or for any substantial part of the property of the Company or, if applicable, any Co-Issuer or, if applicable, any 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
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(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 for which there is one or more co-issuers, to the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers 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 Co-Issuer(s) (if applicable), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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 and, with respect to any series of Securities for which there is one or more co-issuers, each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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.
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In case the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer 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 Guarantors under their respective Guarantees, 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 Issuers (with respect to any series of Securities for which there is one or more co-issuers), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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, any Co-Issuer (with respect to any series of Securities for which there is one or more co-issuers), any 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 U.S. Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, any Co-Issuer (if applicable), any Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, any Co-Issuer (if applicable), any Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, such Co-Issuer (if applicable), such 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, any Co-Issuer (if applicable), any Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, such Co-Issuer (if applicable), such 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 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, in each of its capacities hereunder, 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;
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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, any Co-Issuer (if applicable) 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 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.
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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 in accordance with Section 7.02(i) 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
(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
(b) 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:
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(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;
(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 any director of the Board of Directors of the Company or by the Secretary of the Company (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution of the Company may be evidenced to the Trustee by a copy thereof certified by the Secretary of the Company; any Co-Issuer mentioned herein shall be sufficiently evidenced by an instrument signed in the name of such Co-Issuer by the Chairman or any Vice Chairman of the Board of Directors of such Co-Issuer or by the President or any Executive Vice President or any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of such Co-Issuer (unless other evidence in respect thereof be herein specifically prescribed) or, for Aon Ireland, any director of Aon Ireland or, for Aon UK, by any director or company secretary of Aon UK, as the case may be; and any Board Resolution of any Co-Issuer may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of such Co-Issuer; any request, direction, order or demand of any Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of such Guarantor by the Chairman or any Vice Chairman of the Board of Directors of such Guarantor or by the President or any Executive Vice President or any Vice President or the Treasurer of such Guarantor and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of such Guarantor (unless other evidence in respect thereof be herein specifically prescribed) or, for Aon Ireland, any director of Aon Ireland or, for Aon UK, by any director or company secretary of Aon UK, as the case may be; and any Board Resolution of any Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of such 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;
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(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, any Co-Issuer or any 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 knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written notice 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, any Co-Issuer or any 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, the Co-Issuer(s), as applicable, and the Guarantors, 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 and/or the Co-Issuer with respect to any series of Securities for which there is one or more co-issuers, of Securities or the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee or any agent of the Company, any Co-Issuer, any 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, a Co-Issuer, a 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer 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 any director of the Board of Directors of the Company or by the Secretary of the Company and/or, with respect to any series of Securities for which there is one or more co-issuers, upon the written order of the Co-Issuer(s), signed by the Chairman or any Vice Chairman of the Board of Directors of a Co-Issuer or by the President or any Executive Vice President or any Vice President or the Treasurer or any Assistant Treasurer of a Co-Issuer and for Aon Ireland, any director of Aon Ireland or, for Aon UK, by any director or company secretary of Aon UK, as the case may be.
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Section 7.06. Compensation, Indemnification and Expenses of Trustee. The Company and, with respect to any series of Securities for which there is one or more co-issuers, each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, each Issuer and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each Guarantor, jointly and severally also covenant to indemnify the Trustee and its directors, officers, employees, and agents 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 and, with respect to any series of Securities for which there is one or more co-issuers, the obligations of each of the Issuers 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 of the Company, a Co-Issuer, as applicable, or of a Guarantor, as applicable, delivered to the Trustee, and such Officers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company and, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers, 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, by order of the Board of Directors of each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, any Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Board of Directors of each Issuer 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and appoint a successor trustee with respect to the Securities of such series with the consent of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers.
(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, each Co-Issuer, each 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
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trustee herein; but, nevertheless, on the written request of the Company, any Co-Issuer, any 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, each Co-Issuer and each 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, each Issuer (if any of such series of Securities is co-issues by one or more co-issuers), each 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers fail 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 and/or the Co-Issuer(s), if applicable.
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 Co-Issuers or the Guarantors), 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 Co-Issuer(s) (if applicable), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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, any Co-Issuer or, if applicable, any 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, such Co-Issuer or, if applicable, such Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution of the Company, such Co-Issuer or such 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, with respect to any series of Securities for which there is one or more co-issuers, any Issuers or by any person directly or indirectly controlling or controlled by or under direct or indirect control with any Issuer, 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer. 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, each Co-Issuer (if applicable), each Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.
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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 Nine for any of the following purposes:
(1) to give any notice to the Company, a Co-Issuer (if applicable), a 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, 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 Securityholder. In case at any time the Company, pursuant to a Board Resolution of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, pursuant to a Board Resolution of the Issuers, 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, such Co-Issuer(s), if applicable, 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 or the Co-Issuer(s) and its or their 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or by Securityholders as provided in Section 9.03, in which case the Company, the Issuers 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.
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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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers 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 of the Company, each Issuer (if applicable), when authorized by Board Resolutions of the Issuers (with respect to any series of Securities for which there is one or more co-issuers), each Guarantor (if applicable), when authorized by a Board Resolution of such Guarantor, 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, a Co-Issuer or a Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company, such Co-Issuer or such Guarantor pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company, a Co-Issuer or a 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, a Co-Issuer or a 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.
The Trustee is hereby authorized to join with the Company and, if applicable, each of the Co-Issuers and, if applicable, each of the Guarantors 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.
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Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, each Co-Issuer (if applicable), each 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 of the Company, each Issuer (if applicable), when authorized by Board Resolutions of the Issuers (with respect to any series of Securities for which there is one or more co-issuers), each Guarantor (if applicable), when authorized by a Board Resolution of such 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 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, each Co-Issuer, if applicable, and each Guarantor, if applicable, accompanied by a copy of a Board Resolution of the Company, and, if applicable, a Board Resolution of each Co-Issuer and, if applicable, a Board Resolution of each 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, each Co-Issuer and, if applicable, each 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 Co-Issuer(s), if applicable, the Guarantors, 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 Co-Issuers or, if applicable, the Guarantors 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.
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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 Co-Issuers (if applicable), the Guarantors (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 of the Company, Officers’ Certificates of the Co-Issuers and Officers’ Certificates of the Guarantors 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Board of Directors of the Issuers, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company or the Issuers, if applicable, 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, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms. So long as any Securities shall be Outstanding, none of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, such Co-Issuer or such 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, such Co-Issuer or such 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, such Co-Issuer or such 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 and/or the Co-Issuer(s), 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 and/or the Co-Issuer(s), if applicable, to be performed or observed or, in the case of such 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 such 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 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.
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company, such Co-Issuer or such Guarantor, as applicable, as a result of such transaction as having been incurred by the Company, such Co-Issuer or such 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
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(c) the Company and/or the Co-Issuer(s), as applicable, has delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or such Guarantor has delivered to the Trustee an Officers’ Certificate of such 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 Eleven 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, any Co-Issuer or any Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company, such Co-Issuer or such 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, such Co-Issuer or such Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company, a Co-Issuer or a 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and thereafter repaid to the Company or the Issuers, if applicable, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers;
and the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors in the case of (A), (B) or (C) above, has or have 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors has or have paid or caused to be paid all other sums payable hereunder by the Company or the Issuers, if applicable, with respect to the Outstanding Securities of such series; and
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(c) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors has or have delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuers or of such Guarantors, as the case may be, 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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;
(3) Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors to repurchase or repay, and the obligations of the Company or, if applicable, the Issuers or, if applicable, the Guarantors 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 or the Issuers, if applicable, 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 for which there is one or more co-issuers, the Issuers’ and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors’ 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 or any Co-Issuer 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors, as the case may be, from time to time upon request of the Company or the Guarantors, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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, the Issuers or the Guarantors, 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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.
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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 a Board Resolution of the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers may at their option by Board Resolutions of the Issuers, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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:
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(a) The Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 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 or a Co-Issuer, if applicable, 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors have 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 beneficial owners 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers in connection therewith pursuant to Section 3.01.
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(h) The Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall have delivered to the Trustee an Officers’ Certificate of the Company or the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or any Co-Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers from time to time upon request of the Company or the Issuers, if applicable, 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.
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 Co-Issuer(s), the Guarantors or any successor Person to either of them, either directly or through the Company, the Co-Issuer(s), the Guarantors 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
GUARANTEES
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 Guarantees. 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.
Each Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, 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 or, with respect to any series of Securities for which there is one or more co-issuers, by the Issuers 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. Each 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.
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Each Guarantor hereby agrees that its 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 or, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of its 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 such Guarantor’s obligations under the Guarantee.
Each 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, first make demand upon or seek to enforce remedies against the Company or the Co-Issuer(s), if applicable, 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 of such Guarantor.
Each 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 such Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by such Guarantor to such Holder or the Trustee, as the case may be.
Each 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, any right to require a proceeding first against the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or any other person, protest, notice of dishonor or non-payment to or on such Guarantor or the Company or such Co-Issuer, if applicable, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company or such Co-Issuer, if applicable, under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.
Each Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge a Guarantor of its obligations under its Guarantee in respect of such Guaranteed Obligation.
The Guarantees 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 a Co-Issuer or otherwise.
The obligations of each Guarantor under its 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 a Co-Issuer or by any defense which the Company or a Co-Issuer 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 the Guarantees shall impair any such right, nor shall it be construed to be a waiver thereof.
Notwithstanding anything to the contrary in this Indenture, a Board Resolution of the Company or a Co-Issuer, or one or more supplemental indentures supplemental hereto, providing for the issuance of a series of Securities pursuant to Section 2.01 may provide that any one or more, or all, of the Guarantors guarantee such series of Securities as provided in this Article Fifteen.
Section 15.02. Subrogation. Each Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company and any Co-Issuer, if applicable, in respect of any amounts paid to such Holder or the Trustee, as the case may be, by such Guarantor pursuant to the provisions of the Guarantee; provided, however, that no Guarantor shall 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.
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Section 15.03. Notation of Guarantee. To further evidence the Guarantee set forth in this Article Fifteen, except as provided below, each 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 each Guarantor pursuant to Section 2.03.
Each 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 Guarantors with respect to such Guarantee.
Notwithstanding anything in this Indenture to the contrary, each of Aon Ireland, Aon Delaware, Aon UK and ANA may, but shall have no obligation to, execute a notation of its Guarantee with respect to any Securities issued pursuant to the Original Indenture. Such Guarantee of each of Aon Ireland, Aon Delaware, Aon UK and ANA shall be sufficiently evidenced by its execution of this Indenture and, as provided in the second paragraph of this Section 15.03, such Guarantee shall remain in full force and effect notwithstanding no notation of such Guarantee is affixed to any such Securities.
Section 15.04. Irish Guarantee Limitation. A Guarantee shall not apply to the extent it would result in such Guarantee constituting unlawful financial assistance within the meaning of Section 82 of the Companies Act 2014 of Ireland (as amended) or constitute a breach of Section 239 of the Companies Act 2014 of Ireland (as amended).
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, the Co-Issuer(s) or the Guarantors 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 a Co-Issuer or a 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 Delaware, Aon Ireland, Aon UK or ANA: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or a Co-Issuer or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
Section 16.04. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company, any Co-Issuer or any Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company, such Co-Issuer or such Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or of such 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.
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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, any Co-Issuer or any 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, any Co-Issuer or any 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, such Co-Issuer or such 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. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
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, without regard to the principles of conflicts of laws.
Section 16.09. Consent to Service. The Company, each Co-Issuer and each 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 Company, each Co-Issuer and each 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 Company, such Co-Issuer or Guarantor, shall be deemed in every respect effective service of process upon the Company, such Co-Issuer or Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Company, such Co-Issuer or Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Company, each Co-Issuer or 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.
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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. Each of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or the Issuers, as applicable, provided that, in the event of any such assignment, the Company or the Issuers, as applicable, 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; Submission to Jurisdiction. EACH OF THE COMPANY, THE CO-ISSUERS, THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF 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. Each of the Company, the Co-Issuers and the Guarantors hereby irrevocably submit to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Southern District in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture, the Guarantee and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
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, epidemics, pandemics or similar outbreaks of infectious disease, 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. Each Issuer and each 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 (as determined by an exchange rate agent to be appointed by the applicable Issuer or Guarantor) at which in accordance with normal banking procedures the exchange rate agent could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which a final unappealable judgment is entered, unless such day is not a Business Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate (as determined by an exchange rate agent) at which in accordance with normal banking procedures the exchange rate agent could purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day 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.
43
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.
Section 16.16. Electronic Communications. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company and the Co-Issuer(s), if applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and the Co-Issuer(s), if applicable, whenever a person is to be added or deleted from the listing. If the Company or any of the Co-Issuer(s), if applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. Each of the Company and the Co-Issuer(s), if applicable, understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Co-Issuer(s), if applicable, shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and the Co-Issuer(s), if applicable, and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and the Co-Issuer(s), if applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. Each of the Company and the Co-Issuer(s), if applicable, agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company or the Co-Issuer(s), if applicable, as the case may be; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this Indenture and any other documents delivered pursuant hereto (including authentication of the Securities) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Section 16.17. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature pages follow.]
44
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 Global Holdings plc, a public limited company duly incorporated and existed under the laws of England and Wales | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon plc, a public limited company duly incorporated and existing under the laws of Ireland | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon North America, Inc., a corporation duly organized and existing under the laws of the States of Delaware | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to the Indenture]
| The Bank of New York Mellon Trust Company, N.A. , as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to the Indenture]
Annex A
NOTATION OF GUARANTEE
For value received, [each of] the undersigned Guarantor[s] (which term includes any successor Person[s] 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 [and the Co-Issuer[s]] 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 [each of] the Guarantor[s] 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.
| [Guarantor[s]] | ||
| By: |
| |
| [Name] | ||
| [Title] | ||
A-1
Exhibit 4.32
AON NORTH AMERICA, INC.
Company
the Co-Issuer(s) party hereto
the Guarantors party hereto
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
INDENTURE
Dated as of [DATE]
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 North America, Inc., the Co-Issuers party thereto, the Guarantors party thereto 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
| Page | ||||||
| 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 | 6 | ||||
| Section 2.02. |
Form of Trustee’s Certificate of Authentication | 8 | ||||
| Section 2.03. |
Form, Execution, Authentication, Delivery and Dating of Securities | 9 | ||||
| Section 2.04. |
Currency; Denominations; Regular Record Date | 10 | ||||
| Section 2.05. |
Exchange and Registration of Transfer of Securities | 11 | ||||
| Section 2.06. |
Temporary Securities | 11 | ||||
| Section 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 12 | ||||
| Section 2.08. |
Securities in Global Form | 12 | ||||
| Section 2.09. |
Cancellation | 12 | ||||
| Section 2.10. |
Computation of Interest | 13 | ||||
| Section 2.11. |
CUSIP Numbers | 13 | ||||
| ARTICLE THREE |
| |||||
| REDEMPTION OF SECURITIES |
| |||||
| Section 3.01. |
Redemption of Securities; Applicability of Article | 13 | ||||
| Section 3.02. |
Tax Redemption | 13 | ||||
| Section 3.03. |
Notice of Redemption; Selection of Securities | 14 | ||||
| Section 3.04. |
Payment of Securities Called for Redemption | 14 | ||||
| ARTICLE FOUR |
| |||||
| PARTICULAR COVENANTS OF THE COMPANY AND/OR ANY CO-ISSUER |
| |||||
| Section 4.01. |
Payment of Principal, Premium and Interest | 15 | ||||
| Section 4.02. |
Offices for Notices and Payments, etc. | 15 | ||||
| Section 4.03. |
Provisions as to Paying Agent | 15 | ||||
| Section 4.04. |
Statement by Officers as to Default | 16 | ||||
| Section 4.05. |
Payment of Additional Amounts | 16 | ||||
| ARTICLE FIVE |
| |||||
| SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
| |||||
| Section 5.01. |
Securityholder Lists | 18 | ||||
| Section 5.02. |
Preservation and Disclosure of Lists | 18 | ||||
| Section 5.03. |
Reports by the Company | 19 | ||||
| Section 5.04. |
Reports by the Trustee | 19 | ||||
| ARTICLE SIX |
| |||||
| REMEDIES ON DEFAULT |
| |||||
| Section 6.01. |
Events of Default | 19 | ||||
| Section 6.02. |
Payment of Securities on Default; Suit Therefor | 21 | ||||
| Section 6.03. |
Application of Moneys Collected by Trustee | 22 | ||||
| Section 6.04. |
Proceedings by Securityholders | 23 | ||||
| Section 6.05. |
Remedies Cumulative and Continuing | 23 | ||||
| Section 6.06. |
Direction of Proceedings | 23 | ||||
ii
| Section 6.07. |
Notice of Defaults | 23 | ||||
| Section 6.08. |
Undertaking to Pay Costs | 24 | ||||
| Section 6.09. |
Waiver of Past Defaults | 24 | ||||
| ARTICLE SEVEN |
| |||||
| CONCERNING THE TRUSTEE |
| |||||
| Section 7.01. |
Duties and Responsibilities of Trustee | 24 | ||||
| Section 7.02. |
Reliance on Documents, Opinions, etc. | 25 | ||||
| Section 7.03. |
No Responsibility for Recitals, etc. | 26 | ||||
| Section 7.04. |
Ownership of Securities | 26 | ||||
| Section 7.05. |
Moneys to Be Held in Trust | 26 | ||||
| Section 7.06. |
Compensation, Indemnification and Expenses of Trustee | 26 | ||||
| Section 7.07. |
Officers’ Certificate as Evidence | 27 | ||||
| Section 7.08. |
Conflicting Interest of Trustee | 27 | ||||
| Section 7.09. |
Eligibility of Trustee | 27 | ||||
| Section 7.10. |
Resignation or Removal of Trustee | 27 | ||||
| Section 7.11. |
Acceptance by Successor Trustee | 28 | ||||
| Section 7.12. |
Successor by Merger, etc. | 29 | ||||
| Section 7.13. |
Limitations on Rights of Trustee as Creditor | 29 | ||||
| ARTICLE EIGHT |
| |||||
| CONCERNING THE SECURITYHOLDERS |
| |||||
| Section 8.01. |
Action by Securityholders | 29 | ||||
| Section 8.02. |
Proof of Ownership | 29 | ||||
| Section 8.03. |
Who Are Deemed Absolute Owners | 30 | ||||
| Section 8.04. |
Company-Owned Securities Disregarded | 30 | ||||
| Section 8.05. |
Revocation of Consents; Future Securityholders Bound | 30 | ||||
| ARTICLE NINE |
| |||||
| SECURITYHOLDERS’ MEETINGS |
| |||||
| Section 9.01. |
Purposes of Meetings | 30 | ||||
| Section 9.02. |
Call of Meetings by Trustee | 31 | ||||
| Section 9.03. |
Call of Meetings by Company or Securityholders | 31 | ||||
| Section 9.04. |
Qualification for Voting | 31 | ||||
| Section 9.05. |
Regulations | 31 | ||||
| Section 9.06. |
Voting | 31 | ||||
| ARTICLE TEN |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| Section 10.01. |
Supplemental Indentures without Consent of Securityholders | 32 | ||||
| Section 10.02. |
Supplemental Indentures with Consent of Securityholders | 33 | ||||
| Section 10.03. |
Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 33 | ||||
| Section 10.04. |
Notation on Securities | 34 | ||||
| ARTICLE ELEVEN |
| |||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| Section 11.01. |
Company, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms | 34 | ||||
| Section 11.02. |
Successor Person Substituted | 34 | ||||
| ARTICLE TWELVE |
| |||||
| SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
| |||||
| Section 12.01. |
Discharge of Indenture | 35 | ||||
iii
| Section 12.02. |
Deposited Moneys to Be Held in Trust by Trustee | 36 | ||||
| Section 12.03. |
Paying Agent to Repay Moneys Held | 36 | ||||
| Section 12.04. |
Return of Unclaimed Moneys | 36 | ||||
| ARTICLE THIRTEEN |
| |||||
| DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| Section 13.01. |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance | 36 | ||||
| Section 13.02. |
Defeasance and Discharge | 37 | ||||
| Section 13.03. |
Covenant Defeasance | 37 | ||||
| Section 13.04. |
Conditions to Defeasance or Covenant Defeasance | 37 | ||||
| Section 13.05. |
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 39 | ||||
| ARTICLE FOURTEEN |
| |||||
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
| |||||
| Section 14.01. |
Indenture and Securities Solely Corporate Obligations | 39 | ||||
| ARTICLE FIFTEEN |
| |||||
| GUARANTEES |
| |||||
| Section 15.01. |
Guarantee | 39 | ||||
| Section 15.02. |
Subrogation | 40 | ||||
| Section 15.03. |
Notation of Guarantee | 40 | ||||
| Section 15.04. |
Irish Guarantee Limitation | 41 | ||||
| ARTICLE SIXTEEN |
| |||||
| MISCELLANEOUS PROVISIONS |
| |||||
| Section 16.01. |
Benefits of Indenture Restricted to Parties and Securityholders | 41 | ||||
| Section 16.02. |
Provisions Binding on Successors | 41 | ||||
| Section 16.03. |
Addresses for Notices, etc. | 41 | ||||
| Section 16.04. |
Evidence of Compliance with Conditions Precedent | 41 | ||||
| Section 16.05. |
Legal Holidays | 42 | ||||
| Section 16.06. |
Trust Indenture Act to Control | 42 | ||||
| Section 16.07. |
Execution in Counterparts | 42 | ||||
| Section 16.08. |
New York Contract | 42 | ||||
| Section 16.09. |
Consent to Service | 42 | ||||
| Section 16.10. |
Separability | 42 | ||||
| Section 16.11. |
Assignment | 42 | ||||
| Section 16.12. |
Waiver of Jury Trial; Submission to Jurisdiction | 42 | ||||
| Section 16.13. |
Force Majeure | 43 | ||||
| Section 16.14. |
Judgment Currency | 43 | ||||
| Section 16.15. |
Tax Withholding | 43 | ||||
| Section 16.16. |
Electronic Communications | 43 | ||||
| Section 16.17. |
Sanctions | 44 | ||||
iv
THIS INDENTURE, dated as of [DATE], among Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Aon plc, a public limited company duly incorporated and existing under the laws of Ireland (hereinafter sometimes called “Aon Ireland” or, with respect to any series of Securities for which Aon Ireland is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “Aon UK” or, with respect to any series of Securities for which Aon UK is acting as a guarantor, a “Guarantor”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “Aon Delaware” or, with respect to any series of Securities for which Aon Delaware is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor”), Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales (hereinafter sometimes called “AGH” or, with respect to any series of Securities for which AGH is a co-issuer, the “Co-Issuer” or, to the extent not acting as co-issuer, a “Guarantor” and, together with one or more of Aon Ireland, Aon Delaware and Aon UK, the “Guarantors”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly organized 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), . The Company together with any Co-Issuer(s) are hereinafter sometimes referred to as the Issuers.
WITNESSETH:
WHEREAS, each of the Company, Aon Ireland, Aon Delaware, Aon UK and AGH deems it necessary for the Company to issue or the Issuers to co-issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its or their unsecured indebtedness and has executed and delivered to the Trustee 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 relevant Guarantors, 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, Aon UK, Aon Delaware, AGH and Aon Ireland 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, Aon Ireland, Aon Delaware, Aon UK and AGH has in all respects been duly authorized, and each of the Company, Aon Ireland, Aon Delaware, Aon UK and AGH, 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, and for and in consideration of the foregoing premises, each of the Company, Aon UK, Aon Delaware, AGH and Aon Ireland 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 One 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; |
1
| (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”, with respect to the Company, 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 of the Company with respect to this Indenture or any Security.
The term “Board of Directors”, with respect to a Co-Issuer, shall mean the board of directors (or comparable governing body) of such Co-Issuer, the executive committee of such Co-Issuer or any other committee duly authorized to exercise the powers and authority of the board of directors (or comparable governing body) of such Co-Issuer with respect to this Indenture or any Security.
The term “Board of Directors”, with respect to a Guarantor, shall mean the board of directors (or comparable governing body) of such Guarantor, the executive committee of such Guarantor or any other committee duly authorized to exercise the powers and authority of the board of directors (or comparable governing body) of such Guarantor with respect to this Indenture, including any Guarantee.
BOARD RESOLUTION
The term “Board Resolution”, with respect to the Company, shall mean a resolution certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
The term “Board Resolution”, with respect to a Co-Issuer, shall mean either a resolution certified by the Secretary, any Assistant Secretary or any Executive Vice President of such Co-Issuer or a written resolution signed by all the directors of such Co-Issuer to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such Co-Issuer and to be in full force and effect on the date of such certification, and delivered to the Trustee.
The term “Board Resolution”, with respect to a Guarantor, shall mean a written resolution signed by all the directors of such Guarantor or a resolution certified by the Secretary, any Assistant Secretary or any Executive Vice President of such Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such 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.
CO-ISSUER
The term “Co-Issuer” or “Co-Issuers” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of this Indenture, and thereafter the term “Co-Issuer” or “Co-Issuers” shall mean such successor Person(s).
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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 Indenture 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”, with respect to the Company, 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 of the Company and by the Secretary or any Assistant Secretary of the Company.
The term “Company Order”, with respect to a Co-Issuer, means a written order signed in the name of such Co-Issuer by the President or any Executive Vice President or any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary of such Co-Issuer or, for Aon Ireland, by any director of Aon Ireland, or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be.
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 North LaSalle Street, Suite 700, 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.
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.
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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 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.
GUARANTOR
The term “Guarantor” or “Guarantors” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” or “Guarantors” shall mean such successor Person(s).
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.
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.
ISSUER
The term “Issuer” means the Company, and the term “Issuers” means the Company and one or more of any Co-Issuers specified in the first paragraph of this Indenture, unless a successor Person(s) shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Issuer” or “Issuers” shall mean such successor Person(s).
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OFFICERS’ CERTIFICATE
The term “Officers’ Certificate”, with respect to the Company, shall mean a certificate signed by the Chairman of the Board of Directors of the Company or the President or any Executive Vice President or any Vice President or the Treasurer of the Company and by the Secretary or any Assistant Secretary of the Company.
The term “Officers’ Certificate”, with respect to a Co-Issuer, shall mean a certificate signed by a director of such Co-Issuer, the Chairman of the Board of Directors of such Co-Issuer, or the President, any Executive Vice President, any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary of such Co-Issuer.
The term “Officers’ Certificate”, with respect to a Guarantor, shall mean a certificate signed by a director of such Guarantor, the Chairman of the Board of Directors of such Guarantor, or the President, any Executive Vice President, any Vice President or the Treasurer of such Guarantor and by the Secretary or any Assistant Secretary of such 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, any Co-Issuer or any 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 and, with respect to any series of Securities for which there is one or more co-issuers, by the Issuers (if the Company and/or the Co-Issuer(s) shall act as its or their 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 and/or the Co-Issuer(s) (if any);
(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 Issuer(s) upon the issuance of such Securities.
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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 and, with respect to any series of Securities for which there is one or more co-issuers, of any Issuer in the Borough of Manhattan, The City of New York, designated and maintained by such Issuer 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.
SHARES
The term “Shares” shall mean the Class A Ordinary Shares, nominal value $0.01 per share, of Aon Ireland 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 Aon Ireland 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.
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The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, and set forth in an Officers’ Certificate of the Company and/or the Issuers, as applicable, 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) whether the Securities will be co-issued by one or more Co-Issuers;
(3) 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);
(4) 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;
(5) the date or dates on which the principal of the Securities of the series is payable;
(6) 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;
(7) whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture from one or more, or all, of the Guarantors;
(8) 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;
(9) 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 Issuer(s), pursuant to any sinking fund or otherwise;
(10) the obligation, if any, of the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 Issuer(s) to select the Securities to be redeemed, repurchased or repaid;
(11) 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 Issuer(s) or a Holder thereof or otherwise, in a currency other than dollars;
(12) the denominations in which Securities of the series shall be issuable, if other than $1,000 or integral multiples thereof;
(13) 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;
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(14) 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);
(15) any deletions from, modifications of or additions to the Events of Default or covenants of the Issuer(s) and the Guarantors 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);
(16) 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
(17) 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 of the Company and/or a Co-Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and/or such Co-Issuer and delivered to the Trustee at the same time as or prior to the delivery of the Officers’ Certificate of the Company and/or such Co-Issuer 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 of the Company and/or the Co-Issuer(s), if applicable, establishing the series, and any Officers’ Certificate of the Company and/or such Co-Issuer, if applicable, or any indenture supplemental hereto relating to such Securities.
After the issue date of any Securities, if additional securities are issued having the same terms and conditions as the existing Securities in all respects (other than the issue date, public offering price, and to the extent applicable, first date of interest accrual and first interest payment date of such notes) (the “Additional Securities”), but that are not fungible with the existing Securities for U.S. federal income tax purposes, the Additional Securities will have a separate CUSIP number.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution of the Company and/or the Co-Issuer, if applicable, (or action taken pursuant thereto), any Officers’ Certificate of the Company and/or the Co-Issuer, if applicable, 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 and/or such Co-Issuer, if applicable, 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, or established in one or more Officers’ Certificates of the Company or the Issuers, as applicable, 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 Issuer(s) 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 the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of the Company. Such signatures may be the manual, or facsimile or electronic signatures of the present or any future such officers.
Each Security to be co-issued shall be executed on behalf of the Company by the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of the Company and on behalf of any Co-Issuer by the Chairman or any Vice Chairman of the Board of Directors of the Co-Issuer or by the President or any Executive Vice President and by the Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of such Co-Issuer or, for Aon Ireland, by any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be. Such signatures may be the manual, or facsimile or electronic signatures of the present or any future such officers or director.
With respect to any series of Securities to which the provisions of Article Fifteen shall apply, except as otherwise provided in Article Fifteen, a notation of the Guarantee of each Guarantor endorsed on such Securities shall be executed on behalf of such Guarantor by the Chairman of the Board of Directors of such Guarantor, by the President or any Vice President or the Treasurer of such Guarantor or, for Aon Ireland, by any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be. The signature of any of these officers or directors on such notation of Guarantee may be manual, or facsimile or electronic.
Except as otherwise provided in Article Fifteen, 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 or electronic signatures of individuals who were at any time the proper officers of the Company, a Co-Issuer or a Guarantor, as the case may be, shall bind the Company, such Co-Issuer and such 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers may deliver Securities of any series executed by the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 of the Company and/or the Co-Issuer(s), if applicable, 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 of the Company and the Co-Issuer, if applicable, 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 a Board Resolution of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee of each Guarantor will constitute valid and binding obligations of such 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.
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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 of the Company and/or the Co-Issuer(s), if applicable, 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 and/or the Co-Issuer(s), if applicable, 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, facsimile or electronic 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, and the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Company or any Co-Issuer 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, if the provisions of Article Fifteen apply to such Security, the Guarantors 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
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on a subsequent record date established by notice given by mail by or on behalf of the Company and/or any Co-Issuer (if any) 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 Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, an Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall execute and register or cause to be registered 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of each Guarantor thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and the Co-Issuer(s) (if any) and, with respect to any Guarantee, the applicable 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 Issuer(s) may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Issuer(s) 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 for which there is one or more co-issuers, the Issuers 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 Guarantors, 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 Issuer(s) shall execute and
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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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each 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 Issuer(s) 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 Issuer(s) 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers. Upon the issuance of any substituted Security, the Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers or any agent of the Company, such Co-Issuer (if any) 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 Issuer(s) or, if requested to do so by the Company and/or the Co-Issuer(s) (if any), shall return such cancelled Securities to the Company or such Co-Issuer (if any).
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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 Issuer(s) 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 Issuer(s) 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 Three; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article Three, the provisions of such series of Securities shall govern.
Section 3.02. Tax Redemption. The Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, upon the giving of not less than 30 nor more than 90 days’ notice of tax redemption to holders, 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers determine 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 the United Kingdom or Ireland (or, in each case, of any political subdivision or taxing authority thereof); 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 the United Kingdom or Ireland is a party, which change, execution or amendment becomes effective on or after the issue date of the Securities,
any Guarantor would be required to pay Additional Amounts with respect to its 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 such Guarantor; or
(b) the Company determines and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, determine 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, the United Kingdom or Ireland (or, in each case, any political subdivision or taxing authority thereof), which action is taken or brought on or after the issue date of the Securities under the laws of a jurisdiction other than the United Kingdom or Ireland (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, 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 a Guarantor would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be.
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(d) Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers will deliver to the Trustee an Officers’ Certificate of the Company and/or such Co-Issuer(s) (if any) stating that each of the Company and such Co-Issuer(s) (if any) 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 and/or the Co-Issuer(s) (if any) delivers such Officers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 deliver or, at the Company’s and such Co-Issuer’s (if any) request and expense, the Trustee shall deliver such notice of redemption at least ten (10) 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 delivery 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantors will deposit in trust with the Trustee or with one or more paying agents (or, if the Company and/or such Co-Issuer(s) (if any) 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers will give the Trustee notice of each redemption at least fifteen (15) 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 Securities to be redeemed shall be selected by lot if the Securities are in definitive form, and, if the Securities are in global form, then in accordance with the procedures of the Depositary; 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantors 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, either Issuer 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.
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Upon presentation of any Security redeemed in part only (with, if the Company, the Co-Issuer(s) (if any) or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, such Co-Issuer(s) (if any) and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company, the Co-Issuer(s) (if any) and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company and the Co-Issuer(s) (if any), 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 AND/OR ANY CO-ISSUER
Section 4.01. Payment of Principal, Premium and Interest. The Issuer(s) 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 Issuer(s) 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 Issuer(s) 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 and/or the Co-Issuer(s) (if any) 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 Issuer(s) 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 Issuer(s) shall fail to designate and 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 Issuer(s) 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 Issuer(s) of its or their obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes. The Issuer(s) 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 The Bank of New York Mellon Trust Company, N.A., located at 2 North LaSalle Street, Suite 700, Chicago, Illinois 60602 and The Bank of New York Mellon Trust Company, N.A. and its affiliate located at 240 Greenwich Street, New York, New York 10286 as a Security Registrar and as the office or agency of the Company and/or the Co-Issuer(s) (if any) 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 and/or the Co-Issuer(s) (if any) 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 Issuer(s) shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it or they, as applicable, 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 or they, as applicable, will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,
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(2) that it or they, as applicable, 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 or they, as applicable, will give the Trustee notice of any failure by such Issuer (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 or any Co-Issuer 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 applicable Issuer will promptly notify the Trustee of any failure to take such action.
(c) Whenever the Issuer(s) shall have one or more paying agents for any series of Securities, it or they, as applicable, 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) such Issuer(s) will promptly notify the Trustee of its action or failure so to act.
(d) Anything in this Section to the contrary notwithstanding, such Issuers 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 of the Company, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof either the Company and/or a Co-Issuer 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, 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 made by a Guarantor (including any successor in interest to any of the foregoing) in respect of its Guarantee shall 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 Ireland, as applicable, or, in each case, by any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), unless such Guarantor is required to withhold or deduct Taxes by law.
If a Guarantor is required to withhold or deduct any amount for or on account of Taxes from any payment made with respect to its Guarantee, such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary in order that that the net amount received in respect of such payments by each beneficial owner, the Trustee or any Agent, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), shall not be less than the amounts that would have been received in respect of such payments on the Guarantees in the absence of such withholding or deduction; provided however that no such Additional Amounts will be payable with respect to Taxes:
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(1) that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner of the Securities (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 the United Kingdom or Ireland, as applicable, or, in each case, 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 in respect of a Guarantee;
(4) that would not have been so 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, such Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(5) that would not have been imposed but for the presentation of a Security (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 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;
(7) that would not have been imposed if presentation for payment of the relevant Securities or a Guarantee (where presentation is required), had been made to a paying agent other than the paying agent to which the presentation was made; or
(8) any combination of the foregoing clauses (1) through (7);
nor shall Additional Amounts be paid with respect to any payment in respect of a 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) For avoidance of doubt, no Additional Amounts shall be paid with respect to 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 States or the United Kingdom relating to payments by the Issuer(s) under any Securities.
(c) 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 any payment made under a Guarantee shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable in respect thereof.
(d) The obligations of each 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.
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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
(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.
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(c) Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the Co-Issuer(s) (if any) and the Trustee that none of the Company, any Co-Issuer or the Trustee or any agent of the Company, any Co-Issuer 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 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 actual or 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 and the Co-Issuer(s) (if any). The Company and the Co-Issuer(s) (if any) agree 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
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(c) with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, any 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 any Guarantee is found to be invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of such Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or
(d) failure on the part of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, such Co-Issuer or, if applicable, such 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, such Co-Issuer or, if applicable, such 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, such Co-Issuer or, if applicable, such Guarantor by the Trustee, or to the Company and, if applicable, such Co-Issuer and, if applicable, such 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 for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, examiner, process adviser, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor or for any substantial part of property of the Company or, if applicable, any Co-Issuer or, if applicable, any 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 for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor for the purposes of a solvent reorganization or reconstruction of the Company, such Co-Issuer or such Guarantor, as applicable, either the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, examiner, process adviser, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any Guarantor or for any substantial part of the property of the Company or, if applicable, any Co-Issuer or, if applicable, any 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 for which there is one or more co-issuers, to the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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.
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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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers 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 Co-Issuer(s) (if applicable), the Guarantors (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 Co-Issuer(s) (if applicable) the Guarantors (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 and, with respect to any series of Securities for which there is one or more co-issuers, each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer 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 Guarantors under their respective Guarantees, 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 Issuers (with respect to any series of Securities for which there is one or more co-issuers), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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, any Co-Issuer (with respect to any series of Securities for which there is one or more co-issuers), any 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 U.S. Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, any Co-Issuer (if applicable), any Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, any Co-Issuer (if applicable), any Guarantor (if applicable) or such other obligor, or to the creditors or property of the
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Company, such Co-Issuer (if applicable), such 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, any Co-Issuer (if applicable), any Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, such Co-Issuer (if applicable), such 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 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, in each of its capacities hereunder, 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
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FOURTH: Any remainder to the Company, any Co-Issuer (if applicable) 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 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 in accordance with Section 7.02(i) 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.
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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
(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 of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
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(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 or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President or the Treasurer of the Company and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of the Company (unless other evidence in respect thereof be herein specifically prescribed); any Board Resolution of the Company 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 any Co-Issuer mentioned herein shall be sufficiently evidenced by an instrument signed in the name of such Co-Issuer by the Chairman or any Vice Chairman of the Board of Directors of such Co-Issuer or by the President or any Executive Vice President or any Vice President or the Treasurer of such Co-Issuer and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of such Co-Issuer (unless other evidence in respect thereof be herein specifically prescribed) or, for Aon Ireland, any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be; and any Board Resolution of any Co-Issuer may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of such Co-Issuer; any request, direction, order or demand of any Guarantor mentioned herein shall be sufficiently evidenced by an instrument signed in the name of such Guarantor by the Chairman or any Vice Chairman of the Board of Directors of such Guarantor or by the President or any Executive Vice President or any Vice President or the Treasurer of such Guarantor and by the Secretary or any Assistant Secretary or, if the other signatory is other than the Treasurer, any Assistant Treasurer of such Guarantor (unless other evidence in respect thereof be herein specifically prescribed) or, for Aon Ireland, any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be; and any Board Resolution of any Guarantor may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of such 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, any Co-Issuer or any Guarantor personally or by agent or attorney;
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(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 knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written notice 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, any Co-Issuer or any 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, the Co-Issuer(s), as applicable, and the Guarantors, 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 and/or the Co-Issuer with respect to any series of Securities for which there is one or more co-issuers, of Securities or the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee or any agent of the Company, any Co-Issuer, any 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, a Co-Issuer, a 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Co-Issuer 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 the Chairman or any Vice Chairman of the Board of Directors of the Company or by the President or any Executive Vice President or any Vice President or the Treasurer or any Assistant Treasurer of the Company and/or, with respect to any series of Securities for which there is one or more co-issuers, upon the written order of the Co-Issuer(s), signed by the Chairman or any Vice Chairman of the Board of Directors of a Co-Issuer or by the President or any Executive Vice President or any Vice President or the Treasurer or any Assistant Treasurer of a Co-Issuer and for Aon Ireland, any director of Aon Ireland or, for either of AGH or Aon UK, by any director or company secretary of AGH or Aon UK, as the case may be.
Section 7.06. Compensation, Indemnification and Expenses of Trustee. The Company and, with respect to any series of Securities for which there is one or more co-issuers, each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, each Issuer and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each Guarantor, jointly and severally also covenant to indemnify the Trustee and its directors, officers, employees, and agents 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
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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 and, with respect to any series of Securities for which there is one or more co-issuers, the obligations of each of the Issuers 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 of the Company, a Co-Issuer, as applicable, or of a Guarantor, as applicable, delivered to the Trustee, and such Officers’ 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.
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, and, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company and, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers, 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, by order of the Board of Directors of each Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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.
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(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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, any Issuer 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, and, with respect to any series of Securities for which there is one or more co-issuers, the Board of Directors of each Issuer 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and appoint a successor trustee with respect to the Securities of such series with the consent of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers.
(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, each Co-Issuer each 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, any Co-Issuer, any 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, each Co-Issuer and each 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, each Issuer (if any of such series of Securities is co-issues by one or more co-issuers), each 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers fail 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 and/or the Co-Issuer(s), if applicable.
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 Co-Issuers or the Guarantors), 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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.
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Section 8.03. Who Are Deemed Absolute Owners. The Company, the Co-Issuer(s) (if applicable), the Guarantors (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 Co-Issuer(s) (if applicable), the Guarantors (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, any Co-Issuer or, if applicable, any 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, such Co-Issuer or, if applicable, such Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution of the Company, such Co-Issuer or such 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, with respect to any series of Securities for which there is one or more co-issuers, any Issuers or by any person directly or indirectly controlling or controlled by or under direct or indirect control with any Issuer, 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 or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer. 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, each Co-Issuer (if applicable), each 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 Nine for any of the following purposes:
(1) to give any notice to the Company, a Co-Issuer (if applicable), a 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
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(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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, pursuant to a Board Resolution of the Issuers, 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, such Co-Issuer(s), if applicable, 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 or the Co-Issuer(s) and its or their 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or by Securityholders as provided in Section 9.03, in which case the Company, the Issuers 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, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
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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 of the Company, each Issuer (if applicable), when authorized by Board Resolutions of the Issuers (with respect to any series of Securities for which there is one or more co-issuers), each Guarantor (if applicable), when authorized by a Board Resolution of such Guarantor, 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, a Co-Issuer or a Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company, such Co-Issuer or such Guarantor pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company, a Co-Issuer or a 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, a Co-Issuer or a 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.
The Trustee is hereby authorized to join with the Company and, if applicable, each of the Co-Issuers and, if applicable, each of the Guarantors 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, each Co-Issuer (if applicable), each 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.
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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 of the Company, each Issuer (if applicable), when authorized by Board Resolutions of the Issuers (with respect to any series of Securities for which there is one or more co-issuers), each Guarantor (if applicable), when authorized by a Board Resolution of such 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 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, each Co-Issuer, if applicable, and each Guarantor, if applicable, accompanied by a copy of a Board Resolution of the Company, and, if applicable, a Board Resolution of each Co-Issuer and, if applicable, a Board Resolution of each 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, each Co-Issuer and, if applicable, each 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 Co-Issuer(s), if applicable, the Guarantors, 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 Co-Issuers or, if applicable, the Guarantors 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 Co-Issuers (if applicable), the Guarantors (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.
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The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officers’ Certificate of the Company, Officers’ Certificates of the Co-Issuers and Officers’ Certificates of the Guarantors 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 of the Company, and, with respect to any series of Securities for which there is one or more co-issuers, the Board of Directors of the Issuers, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company or the Issuers, if applicable, 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, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms. So long as any Securities shall be Outstanding, none of the Company, or, with respect to any series of Securities for which there is one or more co-issuers, any Issuer or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, any 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, such Co-Issuer or such 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, such Co-Issuer or such 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, such Co-Issuer or such 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 and/or the Co-Issuer(s), 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 and/or the Co-Issuer(s), if applicable, to be performed or observed or, in the case of such 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 such 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 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.
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company, such Co-Issuer or such Guarantor, as applicable, as a result of such transaction as having been incurred by the Company, such Co-Issuer or such 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 and/or the Co-Issuer(s), as applicable, has delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or such Guarantor has delivered to the Trustee an Officers’ Certificate of such 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 Eleven 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, any Co-Issuer or any Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company, such Co-Issuer or such 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, such Co-Issuer or such Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company, a Co-Issuer or a 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.
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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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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, with respect to any series of Securities for which there is one or more co-issuers, the Issuers and thereafter repaid to the Company or the Issuers, if applicable, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers;
and the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors in the case of (A), (B) or (C) above, has or have 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors has or have paid or caused to be paid all other sums payable hereunder by the Company or the Issuers, if applicable, with respect to the Outstanding Securities of such series; and
(c) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors has or have delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuers or of such Guarantors, as the case may be, 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall survive such satisfaction and discharge:
(1) All obligations under Section 7.06;
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(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;
(3) Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors to repurchase or repay, and the obligations of the Company of, if applicable, the Issuers or, if applicable, the Guarantors 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 or the Issuers, if applicable, 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 for which there is one or more co-issuers, the Issuers’ and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors’ 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 or any Co-Issuer 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors, as the case may be, from time to time upon request of the Company or the Guarantors, 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, 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, the Issuers or the Guarantors, 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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.
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 a Board Resolution of the Company, or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers may at their option by Board Resolutions of the Issuers, 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.
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Section 13.02. Defeasance and Discharge. Upon the Company’s or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers’ 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 for which there is one or more co-issuers, the Issuers and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors 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
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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 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 or a Co-Issuer, if applicable, 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors have 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 beneficial owners 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 for which there is one or more co-issuers, the Issuers or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantors shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers in connection therewith pursuant to Section 3.01.
(h) The Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers shall have delivered to the Trustee an Officers’ Certificate of the Company or the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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.
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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 or any Co-Issuer 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers from time to time upon request of the Company or the Issuers, if applicable, 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.
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 Co-Issuer(s), the Guarantors or any successor Person to either of them, either directly or through the Company, the Co-Issuer(s), the Guarantors 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
GUARANTEES
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 Guarantees. 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. Each Guarantor hereby fully, unconditionally and irrevocably guarantees, jointly and severally, 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 or, with respect to any series of Securities for which there is one or more co-issuers, by the Issuers 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. Each 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.
Each Guarantor hereby agrees that its 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 or, with respect to any series of Securities for which there is one or more co-issuers, to the Issuers with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of its 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 such Guarantor’s obligations under the Guarantee.
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Each 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, first make demand upon or seek to enforce remedies against the Company or the Co-Issuer(s), if applicable, 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 of such Guarantor.
Each 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 such Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by such Guarantor to such Holder or the Trustee, as the case may be.
Each 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 or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers, any right to require a proceeding first against the Company or, with respect to any series of Securities for which there is one or more co-issuers, the Issuers or any other person, protest, notice of dishonor or non-payment to or on such Guarantor or the Company or such Co-Issuer, if applicable, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company or such Co-Issuer, if applicable, under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.
Each Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge a Guarantor of its obligations under its Guarantee in respect of such Guaranteed Obligation.
The Guarantees 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 a Co-Issuer or otherwise.
The obligations of each Guarantor under its 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 a Co-Issuer or by any defense which the Company or a Co-Issuer 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 the Guarantees shall impair any such right, nor shall it be construed to be a waiver thereof.
Notwithstanding anything to the contrary in this Indenture, a Board Resolution of the Company or a Co-Issuer, or one or more supplemental indentures supplemental hereto, providing for the issuance of a series of Securities pursuant to Section 2.01 may provide that any one or more, or all, of the Guarantors guarantee such series of Securities as provided in this Article Fifteen.
Section 15.02. Subrogation. Each Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company and any Co-Issuer, if applicable, in respect of any amounts paid to such Holder or the Trustee, as the case may be, by such Guarantor pursuant to the provisions of the Guarantee; provided, however, that no Guarantor shall 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, except as provided below, each 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 each Guarantor pursuant to Section 2.03. Each 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 Guarantors with respect to such Guarantee.
Notwithstanding anything in this Indenture to the contrary, each of Aon Ireland, Aon Delaware, Aon UK and AGH may, but shall have no obligation to, execute a notation of its Guarantee with respect to any Securities issued pursuant to the Original Indenture. Such Guarantee of each of Aon Ireland, Aon Delaware, Aon UK and AGH shall be sufficiently evidenced by its execution of this Indenture and, as provided in the second paragraph of this Section 15.03, such Guarantee shall remain in full force and effect notwithstanding no notation of such Guarantee is affixed to any such Securities.
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Section 15.04. Irish Guarantee Limitation. A Guarantee shall not apply to the extent it would result in such Guarantee constituting unlawful financial assistance within the meaning of Section 82 of the Companies Act 2014 of Ireland (as amended) or constitute a breach of Section 239 of the Companies Act 2014 of Ireland (as amended).
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, the Co-Issuer(s) or the Guarantors 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 a Co-Issuer or a 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 UK, Aon Delaware, Aon Ireland or AGH: c/o Aon Corporation, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Treasurer. Any notice, direction, request or demand by the Company or a Co-Issuer or the Guarantors, 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 North LaSalle Street, Suite 700, Chicago, Illinois 60602, or at any other address previously furnished in writing to the Company by the Trustee.
Section 16.04. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company, any Co-Issuer or any Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company, such Co-Issuer or such Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or of such 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, any Co-Issuer or any 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, any Co-Issuer or any 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, such Co-Issuer or such 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.
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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. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
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, without regard to the principles of conflicts of laws.
Section 16.09. Consent to Service. The Company, each Co-Issuer and each 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 Company, each Co-Issuer and each 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 Company, such Co-Issuer or Guarantor, shall be deemed in every respect effective service of process upon the Company, such Co-Issuer or Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Company, such Co-Issuer or Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Company, each Co-Issuer or 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 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. Each of the Company and, with respect to any series of Securities for which there is one or more co-issuers, the Issuers 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 or the Issuers, as applicable, provided that, in the event of any such assignment, the Company or the Issuers, as applicable, 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; Submission to Jurisdiction. EACH OF THE COMPANY, THE CO-ISSUERS, THE GUARANTORS, THE TRUSTEE AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF 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. Each of the Company, the Co-Issuers and the Guarantors hereby irrevocably submit to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Southern District in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture, the Guarantee and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
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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, epidemics, pandemics or similar outbreaks of infectious disease, 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. Each Issuer and each 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 (as determined by an exchange rate agent to be appointed by the applicable Issuer or Guarantor) at which in accordance with normal banking procedures the exchange rate agent could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which a final unappealable judgment is entered, unless such day is not a Business Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate (as determined by an exchange rate agent) at which in accordance with normal banking procedures the exchange rate agent could purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day 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.
Section 16.16. Electronic Communications. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company and the Co-Issuer(s), if applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and the Co-Issuer(s), if applicable, whenever a person is to be added or deleted from the listing. If the Company or any of the Co-Issuer(s), if applicable, elects to give the Trustee Instructions using
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Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. Each of the Company and the Co-Issuer(s), if applicable, understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Co-Issuer(s), if applicable, shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and the Co-Issuer(s), if applicable, and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and the Co-Issuer(s), if applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. Each of the Company and the Co-Issuer(s), if applicable, agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company or the Co-Issuer(s), if applicable, as the case may be; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Trustee may execute this Indenture and any other documents delivered pursuant hereto (including authentication of the Securities) via Electronic Means.
“Electronic Means” shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Section 16.17. Sanctions.
(a) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”).
(b) Each Issuer and Guarantor covenants and represents that neither it nor any of its respective affiliates, subsidiaries, directors or officers will use any payments made pursuant to this Indenture (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
[Signature pages follow.]
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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 North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon plc, a public limited company duly incorporated and existing under the laws of Ireland | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon Corporation, a corporation duly organized and existing under the laws of the States of Delaware | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon Global Limited, a private limited company duly incorporated and existing under the laws of England and Wales | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Aon Global Holdings plc, a public limited company duly incorporated and existing under the laws of England and Wales | ||
| By: |
| |
| Name: | ||
| Title: | ||
| The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to the Indenture]
Annex A
NOTATION OF GUARANTEE
For value received, [each of] the undersigned Guarantor[s] (which term includes any successor Person[s] 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 [and the Co-Issuer[s]] 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 [each of] the Guarantor[s] 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.
| [Guarantor[s]] | ||
| By: |
| |
| [Name] | ||
| [Title] | ||
A-1
Exhibit 5.1
|
SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 +1 212 839 5300 +1 212 839 5599 FAX
AMERICA • ASIA PACIFIC • EUROPE |
June 22, 2023
Aon plc
Metropolitan Building
James Joyce Street
Dublin 1, Ireland D01 K0Y8
Aon Global Limited
The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England, EC3V 4AN
Aon Global Holdings plc
The Aon Centre
The Leadenhall Building
122 Leadenhall Street
London, England, EC3V 4AN
Aon Corporation
200 East Randolph Street
Chicago, Illinois 60601
United States of America
Aon North America, Inc.
200 East Randolph Street
Chicago, Illinois 60601
United States of America
Re: 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, an Irish public limited company (“Aon plc”), Aon Global Limited, a limited company incorporated under the laws of England and Wales (“AGL”), Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales (“AGH”), Aon Corporation, a Delaware corporation (“Aon Corporation”), and Aon North America, Inc., a Delaware corporation (“ANA” and, collectively with Aon plc, AGH and Aon Corporation, the
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships.
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 2
“Issuers” and each, an “Issuer”), 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) Aon plc’s Class A ordinary shares, $0.01 nominal value (the “Class A Ordinary Shares”);
(ii) Aon plc’s preference shares, $0.01 nominal value (the “Preference Shares”);
(iii) unsecured debt securities of AGH (the “AGH Debt Securities”);
(iv) unsecured debt securities of Aon Corporation (the “Aon Corporation Debt Securities”);
(v) unsecured debt securities of ANA (the “ANA Debt Securities”);
(vi) unsecured debt securities co-issued by any of Aon plc, AGH, Aon Corporation and ANA (the “Co-Issued Debt Securities” and, collectively with the AGH Debt Securities, the Aon Corporation Debt Securities and the ANA Debt Securities, the “Debt Securities”);
(vii) guarantees of the AGH Debt Securities by Aon plc, AGL, Aon Corporation and/or ANA (the “AGH Debt Securities Guarantees”);
(viii) guarantees of the Aon Corporation Debt Securities by Aon plc, AGL, AGH and/or ANA (the “Aon Corporation Debt Securities Guarantees”);
(ix) guarantees of the ANA Debt Securities by Aon plc, AGL, AGH and/or Aon Corporation (the “ANA Debt Securities Guarantees”);
(x) guarantees of the Co-Issued Debt Securities by Aon plc, AGL, AGH, Aon Corporation and/or ANA, to the extent not acting as co-issuer (the “Co-Issued Debt Securities Guarantees” and, collectively with the AGH Debt Securities Guarantees, the Aon Corporation Debt Securities Guarantees and the ANA Debt Securities Guarantees, the “Guarantees”);
(xi) 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 at a future date or dates; and
(xii) 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 Co-Issued Debt Securities, Preference Shares or debt obligations of third parties, including the AGH Debt Securities, the Aon Corporation Debt Securities or the ANA Debt Securities.
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 3
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) AGH Debt Securities or Co-Issued Debt Securities pursuant to which AGH is a co-issuer will be issued under an indenture (the “AGH Indenture”) to be entered into among AGH, as issuer or co-issuer, any of Aon plc, Aon Corporation or ANA, as co-issuer, and Aon plc, AGL, Aon Corporation and/or ANA, to the extent not acting as co-issuer, as guarantors (the “AGH Guarantors”) in respect of certain series of AGH Debt Securities or Co-Issued Debt Securities pursuant to which AGH is a co-issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”);
(2) Aon Corporation Debt Securities or Co-Issued Debt Securities pursuant to which Aon Corporation is a co-issuer will be issued under an indenture (the “Aon Corporation Indenture”) to be entered into among Aon Corporation, as issuer or co-issuer, any of Aon plc, AGH or ANA, as co-issuer, and Aon plc, AGL, AGH and/or ANA, to the extent not acting as co-issuer, as guarantors (the “Aon Corporation Guarantors”) in respect of certain series of Aon Corporation Debt Securities or Co-Issued Debt Securities pursuant to which Aon Corporation is a co-issuer, and the Trustee;
(3) ANA Debt Securities or Co-Issued Debt Securities pursuant to which ANA is a co-issuer will be issued under an indenture (the “ANA Indenture” and, collectively with the AGH Indenture and the Aon Corporation Indenture, the “Indentures”) to be entered into among ANA, as issuer or co-issuer, any of Aon plc, AGH or Aon Corporation, as co-issuer, and Aon plc, AGL, AGH and/or Aon Corporation, to the extent not acting as co-issuer, as guarantors (the “ANA Guarantors” and, collectively with the AGH Guarantors and the Aon Corporation Guarantors, the “Guarantors”) in respect of certain series of ANA Debt Securities or Co-Issued Debt Securities pursuant to which ANA is a co-issuer, and the Trustee; and
(4) the Share Purchase Contracts will be issued under a share purchase contract agreement (the “Share Purchase Contract Agreement”) between Aon plc and a share 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.
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 4
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, the exhibits to the Registration Statement, the Memorandum and Articles of Association of Aon plc (the “Aon plc Charter”), the Articles of Association of AGL (the “AGL Charter”), the Articles of Association of AGH (the “AGH Charter”), the Amended and Restated Certificate of Incorporation of Aon Corporation (the “Aon Corporation Charter”), the Certificate of Incorporation, as amended, of ANA (the “ANA Charter” and, collectively with the Aon plc Charter, the AGL Charter, the AGH Charter and the Aon Corporation Charter, the “Charters”), the Amended and Restated By-laws of Aon Corporation (the “Aon Corporation By-laws”), the Bylaws of ANA (the “ANA Bylaws” and, together with the Aon Corporation By-laws, the “Bylaws”), the resolutions of Aon plc (the “Aon plc Resolutions”) adopted by the board of directors of Aon plc (the “Aon plc Board”) relating to the Registration Statement and the Securities, the resolutions of AGL (the “AGL Resolutions”) adopted by the board of directors of AGL (the “AGL Board”) relating to the Registration Statement and the Securities, the resolutions of AGH (the “AGH Resolutions”) adopted by the board of directors of AGH (the “AGH Board”) relating to the Registration Statement and the Securities, the resolutions of Aon Corporation (the “Aon Corporation Resolutions”) adopted by the board of directors of Aon Corporation (the “Aon Corporation Board”) relating to the Registration Statement and the Securities and the resolutions of ANA (the “ANA Resolutions” and, collectively with the Aon plc Resolutions, the AGL Resolutions, the AGH Resolutions and the Aon Corporation Resolutions, the “Resolutions”) adopted by the board of directors of ANA (the “ANA Board” and, collectively with the Aon plc Board, the AGL Board, the AGH Board and the Aon Corporation Board, the “Boards”) relating to the Registration Statement and the Securities. 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.
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 5
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 AGH Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of AGH when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the AGH Indenture (including any necessary supplemental indenture) shall have been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”); (ii) a Prospectus Supplement with respect to the sale of such series of AGH Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the AGH Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by AGH to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of AGH Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such AGH Debt Securities and the AGH 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 AGH Debt Securities as contemplated by the AGH Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of AGH Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, the parties to the AGH Indenture or, in the case of such an officers’ certificate, duly authorized officers of AGH, in each case in accordance with the AGH Charter, the final resolutions of the AGH Board or a duly authorized committee thereof and the AGH Indenture; and (vi) the certificates evidencing the AGH Debt Securities of such series shall have been duly executed and delivered by AGH, authenticated by the Trustee and issued, all in accordance with the AGH Charter, the final resolutions of the AGH Board or a duly authorized committee thereof, the AGH Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the AGH 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 Corporation 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 Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) a Prospectus Supplement with respect to the sale of such series of Aon Corporation 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 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 Debt Securities as contemplated by the Registration Statement, the
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
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Prospectus and the Prospectus Supplement relating to such Aon Corporation Debt Securities and the Aon Corporation 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 Debt Securities as contemplated by the Aon Corporation Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Aon Corporation Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, the parties to the Aon Corporation Indenture or, in the case of such an officers’ certificate, duly authorized officers of Aon Corporation, in each case in accordance with the Aon Corporation Charter, the Aon Corporation By-laws, the final resolutions of the Aon Corporation Board or a duly authorized committee thereof and the Aon Corporation Indenture; and (vi) the certificates evidencing the Aon Corporation Debt Securities of such series shall have been duly executed and delivered by Aon Corporation, authenticated by the Trustee and issued, all in accordance with the Aon Corporation Charter, the Aon Corporation By-laws, the final resolutions of the Aon Corporation Board or a duly authorized committee thereof, the Aon Corporation Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Aon Corporation 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 ANA Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of ANA when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the ANA Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) a Prospectus Supplement with respect to the sale of such series of ANA Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the ANA Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by ANA to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of ANA Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such ANA Debt Securities and the ANA 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 ANA Debt Securities as contemplated by the ANA Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of ANA Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, the parties to the ANA Indenture or, in the case of such an officers’ certificate, duly authorized officers of ANA, in each case in accordance with the ANA Charter, the ANA Bylaws, the final resolutions of the ANA Board or a duly authorized committee thereof and the ANA Indenture; and (vi) the certificates evidencing the ANA Debt Securities of such series shall have been duly executed and delivered
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
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by ANA, authenticated by the Trustee and issued, all in accordance with the ANA Charter, the ANA Bylaws, the final resolutions of the ANA Board or a duly authorized committee thereof, the ANA Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the ANA 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 Co-Issued Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of the applicable Issuers 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 Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) a Prospectus Supplement with respect to the sale of such series of Co-Issued Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the applicable Indenture shall have been duly authorized, executed and delivered by the parties thereto; (iv) all necessary corporate action shall have been taken by each applicable Issuer to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Co-Issued Debt Securities as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Co-Issued Debt Securities and the applicable 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 Co-Issued Debt Securities as contemplated by the applicable Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Co-Issued Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, the parties to the applicable Indenture or, in the case of such an officers’ certificate, duly authorized officers of the applicable Issuers, in each case in accordance with the applicable Charters, Bylaws and final resolutions of the applicable Boards or duly authorized committees thereof and the applicable Indenture; and (vi) the certificates evidencing the Co-Issued Debt Securities of such series shall have been duly executed and delivered by the applicable Issuers, authenticated by the Trustee and issued, all in accordance with the applicable Charters, Bylaws, final resolutions of the applicable Boards or duly authorized committees thereof, the applicable Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Co-Issued 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.
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 8
5. Each Guarantee will constitute a validly issued and binding obligation of the applicable Guarantor 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 Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) a Prospectus Supplement with respect to the sale of such Guarantee and the Debt Securities to which such Guarantee relates shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the applicable Indenture shall have been duly authorized, executed and delivered by the parties thereto (including, if applicable, such Guarantor); (iv) all necessary corporate action shall have been taken by the applicable Issuer(s) to authorize the form, terms, execution, delivery, performance, issuance and sale of the series of Debt Securities to which such Guarantee relates as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to such Guarantee and the related Debt Securities and the applicable 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 Debt Securities as contemplated by the applicable Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Debt Securities shall have been duly executed and delivered by, in the case of such a supplemental indenture, the parties to the applicable Indenture or, in the case of such an officers’ certificate, duly authorized officers of the applicable Issuer(s), in each case in accordance with the applicable Charter, Bylaws, final resolutions of the applicable Board(s) or a duly authorized committee thereof and the applicable Indenture; (vi) the certificates evidencing the Debt Securities to which such Guarantee relates shall have been duly executed and delivered by the applicable Issuer(s), authenticated by the Trustee and issued, all in accordance with the applicable Charter, Bylaws, final resolutions of the applicable Board(s) or a duly authorized committee thereof, the applicable Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of such Debt Securities, 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; (vii) all necessary action shall have been taken by each Guarantor to authorize the terms, execution, delivery, performance and issuance of such Guarantor’s Guarantee as contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement relating to the Debt Securities to which such Guarantee relates and the applicable Indenture; and (viii) if applicable, the notation of guarantee evidencing such Guarantee shall have been duly executed and delivered by the applicable Guarantor and issued, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers of the Debt Securities to which such Guarantee relates against payment of the agreed consideration therefor.
6. 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 the sale of 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
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 9
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) the Aon plc Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Aon plc Charter and the Aon plc Resolutions authorizing the execution, delivery, issuance and sale of such Share Purchase Contracts; (v) any necessary public limited company action under the laws of Ireland 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 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.
7. 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 the sale of such Share Purchase Units shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Aon plc Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Aon plc Charter and the Aon plc Resolutions authorizing the execution, delivery, issuance and sale of such Share Purchase Units; (iv) if such Share Purchase Units consist of Preference Shares, any necessary public limited company action shall have been taken under the laws of Ireland to authorize and approve the issuance of such Preference Shares; (v) if such Share Purchase Units consist of Debt Securities, the actions described in paragraph 1, 2, 3 or 4 above, as applicable, shall have been taken; (vi) the actions described in paragraph 6 above shall have been taken; (vii) if such Share Purchase Units consist of debt obligations of a third party (other than Aon plc, AGH, Aon Corporation and ANA), 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 opinions are subject to bankruptcy, insolvency, bail-in, 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, in each case, whether by operation of law, contract, judicial or regulatory action or otherwise. Our opinions are 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)
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 10
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.
For the purposes of this opinion letter, we have assumed that, at the time of the issuance, sale and delivery of any of the Securities:
(i) the applicable 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 applicable Indenture and each indenture supplement thereto, each Share Purchase Contract Agreement and any Securities, and the issuance, sale and delivery of such Securities by Aon plc, AGL, AGH, Aon Corporation and ANA, will not (A) contravene or violate the constituent documents of Aon plc, AGL, AGH, Aon Corporation and ANA, (B) violate any law, rule or regulation applicable to Aon plc, AGL, AGH, Aon Corporation and ANA, (C) result in a default under or breach of any agreement or instrument binding upon Aon plc, AGL, AGH, Aon Corporation and ANA or any order, judgment or decree of any court or governmental authority applicable to Aon plc, AGL, AGH, Aon Corporation and ANA 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);
(iii) the authorization thereof by Aon plc, AGL, AGH, Aon Corporation and ANA 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;
(iv) the Charters, the Bylaws and the Resolutions, each as currently in effect, will not have been modified or amended and will be in full force and effect; and
(v) Aon plc will have a number of authorized and unissued Class A Ordinary Shares sufficient to provide for the issuance of all Class A Ordinary Shares issuable upon exercise of any Share Purchase Contracts or Share Purchase Units, as applicable.
Aon plc
Aon Global Limited
Aon Global Holdings plc
Aon Corporation
Aon North America, Inc.
June 22, 2023
Page 11
We have further assumed that each Indenture and each indenture supplement thereto, each Share Purchase Contract Agreement and each of the Guarantees 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, 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 5.2
| Aon plc Metropolitan Building James Joyce Street Dublin 1 Ireland | ||
| Our ref FBO/SCC 659500-41 |
22 June 2023 |
Dear Sirs
Registration Statement on Form S-3
We have acted as Irish counsel to Aon plc, a public limited company incorporated under the laws of Ireland (company number 604607) (the “Company” or “Aon plc”) in connection with its filing (together with Aon Global Limited, a private limited company incorporated under the laws of England and Wales (“AGL”), Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales (“AGH”), Aon Corporation, a Delaware corporation (“Aon Corporation”) and Aon North America, Inc., a Delaware corporation (“ANA”, and together with the Company, AGL, AGH and Aon Corporation, the “Registrants”)), on the date hereof, of a registration statement on Form S-3 (the “Registration Statement”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”) with the U.S. Securities and Exchange Commission (the “Commission”).
Pursuant to the Registration Statement, the Registrants will register, under the Securities Act, an indeterminate number of the following: (i) co-issued debt securities of the Company, (ii) debt securities or co-issued debt securities of AGH, (iii) debt securities or co-issued debt securities of Aon Corporation, (iv) debt securities or co-issued debt securities of ANA (each of the foregoing issued or co-issued debt securities listed as (i) to (iv), being “Debt Securities”), (v) preference shares of $0.01 each (nominal value) in the capital of the Company (“Preference Shares”), (vi) class A ordinary shares of $0.01 each (nominal value) in the capital of the Company (“A Ordinary Shares”, and together with the Preference Shares, “Shares”), (vii) share purchase contracts, representing contracts obligating holders to purchase from the Company, and obligating the Company to sell, to the holders, a specified number of A Ordinary Shares at a future date or dates (“Share Purchase Contracts”), (viii) share purchase units, comprising a Share Purchase Contract, and, as security for a holder’s obligations to purchase A Ordinary Shares, co-issued debt securities, Preference Shares or debt obligations of third parties, including U.S. Treasury securities, “Share Purchase Units”) and (ix) guarantees of the Debt Securities (“Guarantees”, and together with the Debt Securities, the Preference Shares, the A Ordinary Shares and the Share Purchase Contracts and the Share Purchase Units, “Securities”).
The Company may co-issue Debt Securities and give Guarantees of Debt Securities issued or co-issued by another Registrant under:
| 1. | a form of indenture, to be filed with the Commission as an exhibit to the Registration Statement, to be made among AGH, as issuer or co-issuer, any of the Company, Aon Corporation or ANA, as co-issuer, and the Company, AGL, Aon Corporation and/or ANA, to the extent not acting as co-issuer, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “AGH Indenture”), as supplemented, from time to time, by one or more, duly authorised, executed and lawful supplemental indenture(s); |
| 2. | a form of amended and restated indenture, to be filed with the Commission as an exhibit to the Registration Statement, to be made among Aon Corporation, as issuer or co-issuer, any of the Company, AGH or ANA, as co-issuer, and the Company, AGL, AGH and/or ANA, to the extent not acting as co-issuer, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Aon Corporation Indenture”), as supplemented, from time to time, by one or more, duly authorised, executed and lawful supplemental indenture(s); and |
| 3. | a form of indenture, to be filed with the Commission as an exhibit to the Registration Statement, to be made among ANA, as issuer or co-issuer, any of the Company, AGH or Aon Corporation, as co-issuer, and the Company, AGL, AGH and/or Aon Corporation, to the extent not acting as co-issuer, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ANA Indenture”, and together with the AGH Indenture and the Aon Corporation Indenture, the “Indentures”) as supplemented, from time to time, by one or more, duly authorised, executed and lawful supplemental indenture(s). |
In connection with this Opinion, we have reviewed the corporate resolutions, records and other documents and searches listed in Schedule 1 to this Opinion (the “Documents”).
Based on the foregoing, and subject to the assumptions, qualification and limitations set out in Schedule 2, Schedule 3 and elsewhere in this Opinion, we are of the opinion that:
| 1. | the Company is a public limited company, duly incorporated and validly existing under the laws of Ireland; |
| 2. | the Company has the requisite power and authority under its constitution to enter into the Indentures and to perform its obligations thereunder and, if duly authorised by a valid resolution of the board of directors of the Company or a duly appointed committee thereof in respect of a particular issuance, and subject to compliance with the terms of the relevant Indenture (as supplemented, from time to time, by any duly authorised, executed and lawful supplemental indenture(s)): (a) to co-issue Debt Securities; and (b) to the extent not acting as co-issuer, to give Guarantees of Debt Securities issued or co-issued by another Registrant, and such Debt Securities and Guarantees, when issued or given, as aforesaid, will constitute valid and binding obligations of the Company; |
| 3. | the Shares (including any Shares issued pursuant to Share Purchase Contracts and Share Purchase Units), when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof) and the provisions of the Company’s constitution, and subject to receipt by the Company of the full consideration payable therefor, will be validly issued, fully-paid and non-assessable (“non-assessable” is a phrase which has no defined meaning under Irish law, but, for the purposes of this Opinion, shall mean that the registered holders of shares are not subject to calls for additional payments on such shares); and |
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| 4. | the Share Purchase Contracts and Share Purchase Units, when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof), the provisions of the Company’s constitution, and subject to compliance with the terms of any duly authorised, executed and lawful agreement or instrument constituting such Securities (including, in the case of any Debt Securities comprised in any Share Purchase Units, the relevant Indenture (as supplemented, from time to time, by any duly authorised, executed and lawful supplemental indenture(s))), will constitute valid and binding obligations of the Company. |
This Opinion is based upon, and limited to, the laws of Ireland in effect on the date hereof and is based on legislation published and cases fully reported before that date and our knowledge of the facts relevant to the opinions contained herein. We have assumed, without enquiry, that there is nothing in the laws of any jurisdiction other than Ireland which would, or might, affect our opinions as stated herein. We have made no investigations of, and we express no opinion on, the laws of any jurisdiction other than Ireland, or the effect thereof. This Opinion is expressed as of the date hereof and we assume no obligation to update this Opinion.
This Opinion is furnished to you and the persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act strictly for use in connection with the Registration Statement and may not be relied upon by any other person without our prior written consent. This Opinion is confined strictly to the matters expressly stated herein and is not to be read as extending, by implication or otherwise, to any other matter.
We hereby consent to the filing of this Opinion as Exhibit 5.2 to the Registration Statement and to the reference to Matheson LLP under the caption “Validity of Securities” in the prospectus constituting a part of the Registration Statement. In giving such consent, we do not admit that we are included in the category of persons whose consent is required under section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.
This Opinion and the opinions given in it are governed by, and construed in accordance with, the laws of Ireland.
Yours faithfully
/s/ Matheson LLP
MATHESON LLP
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Schedule 1
The Documents
| 1. | A certificate issued by the secretary of the Company dated 22 June 2023 (the “Corporate Certificate”), among other matters, attaching a copy of each of the following certified as being true, complete and correct: |
| (a) | copies of each of the certificate of incorporation of the Company dated 23 May 2017, certificate of incorporation on change of name of the Company dated 5 November 2019 and certificate of incorporation on re-registration of the Company as a public limited company 18 March 2020; |
| (b) | copy constitution of the Company adopted by special resolution passed on 31 March 2020 and amended by special resolution passed on 2 June 2021; and |
| (c) | copy of the resolutions of the board of directors of the Company passed on 16 June 2023. |
| 2. | The final form of the Registration Statement, including the prospectus contained therein filed, or to be filed, with the Commission. |
| 3. | The final forms of each of the Indentures to be filed with the Commission as exhibits to the Registration Statement. |
| 4. | Searches carried out by independent law researchers on our behalf against the Company on 22 June 2023 in: (a) the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, (b) the Judgments’ Office of the Central Office of the High Court of Ireland and (c) the Irish Companies Registration Office in Dublin (the “Companies Registration Office”) (the “Searches”). |
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Schedule 2
Assumptions
For the purposes of this Opinion, we have assumed:
| 1. | The truth and accuracy of the contents of the Documents as to factual matters, but have made no independent investigation regarding such factual matters. |
| 2. | All signatures (including, for the avoidance of doubt, electronic signatures), initials, seals and stamps contained in, or on, the Documents submitted to us are genuine. |
| 3. | Any electronic signature inserted on a Document was inserted by the signatory in question and not by another person and, where attested by a witness, was inserted in the physical presence of the witness, and each other party to any Document which has been executed using an electronic signature has consented to the execution by the Company of that Document by way of electronic signature. |
| 4. | All Documents submitted to us as originals are authentic and complete and all Documents submitted to us as copies (including without limitation any document submitted to us as a .pdf, or any other format, attachment to an email) are complete and conform to the originals of such Documents, and the originals of such Documents are authentic and complete. |
| 5. | The Corporate Certificate is accurate in all respects (other than in relation to any matter of Irish law on which we expressly opine). |
| 6. | Each of the Indentures will be executed by all parties in the forms we have examined for the purposes of this Opinion. |
| 7. | The terms of any supplemental indenture to any of the Indentures will be duly authorised, executed and delivered by all parties thereto (including the Company) and no such supplemental indenture will contain a term or other provision that would render the applicable Indenture or the offer, sale, issuance, co-issuance, admission to trading and/or listing of Debt Securities, or the giving by the Company of Guarantees thereunder, unlawful under the Company’s constitution or the applicable laws of any jurisdiction, including Ireland. |
| 8. | Each party to the Documents (other than the Company) had (when it entered into), and continues to have, the due and requisite capacity, power and authority to enter into, execute and perform its obligations under the Documents, and the Documents are, and will not become, subject to avoidance by any person under all applicable laws in any applicable jurisdictions (other than, in the case of the Company, the laws of Ireland and the jurisdiction of Ireland). |
| 9. | All Documents dated on or prior to the date hereof and on which we have expressed reliance have not been revoked or amended and remain accurate. |
| 10. | The resolutions of the board of directors of the Company on which we have expressed reliance were duly passed at a properly constituted, convened and quorate meeting of the board of directors of the Company, and such resolutions have not been amended or rescinded and are in full force and effect. |
| 11. | The Company will derive a commercial benefit from entering into the Indentures, any supplemental indenture(s) and any other document referred to in, or contemplated by, the |
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| Registration Statement (including the prospectus contained therein and any prospectus supplement) and issuing and/or co-issuing Debt Securities or giving Guarantees commensurate with the obligations undertaken by it thereunder. |
| 12. | In approving the entry into the Indentures and any other document referred to in, or contemplated by, the Registration Statement (including the prospectus contained therein) and giving Guarantees, the directors of the Company have acted in a manner they consider, in good faith, to be in the interests of the Company for its legitimate business purposes and which would be likely to promote the success of the Company for its members as a whole. |
| 13. | At the time of the allotment of any Shares (including upon the grant or issuance of any rights, or securities conferring rights, to be allotted or which are convertible into Shares (“Convertible Rights”), including Share Purchase Contracts and Share Purchase Units), the Company will have a sufficient number of authorised but unissued Shares in its share capital (being at least equal to the number of Shares the subject of the relevant allotment). For the avoidance of doubt, an “allotment” includes an agreement to allot Shares. |
| 14. | At the time of the allotment of any Shares (including upon the grant or issuance of any Convertible Right, including Share Purchase Contracts or as part of Share Purchase Units), to the extent required: (a) the directors of the Company will, in accordance with section 1021 of the Companies Act 2014 of Ireland (the “Companies Act”), have been generally and unconditionally authorised by the shareholders of the Company to allot a sufficient number of “relevant securities” (within the meaning of that section), being at least equal to the number of Shares the subject of such allotment (including upon the grant or issuance of a Convertible Right) and (b) the directors of the Company will, in accordance with section 1023 of the Companies Act, have been empowered by the shareholders of the Company to allot such Shares or to grant or issue such Convertible Rights as if section 1022(1) of the Companies Act did not apply to such allotment. |
| 15. | Where treasury shares are being re-issued, the maximum and minimum prices of re-issue shall have been determined in advance at a general meeting of the Company in accordance with the requirements of section 1078 of the Companies Act. |
| 16. | No Share will be allotted and issued for less than its nominal value, and no Share will be allotted and issued for consideration other than cash save in accordance with the provisions of sections 1027, 1028 and 1029 of the Companies Act. |
| 17. | No Share will be allotted and issued: (a) for consideration of an undertaking from any person that he, she or another will do work or perform services for the Company or for any other person, (b) for consideration otherwise than in cash that includes an undertaking which is to be or may be performed more than five years after the date of allotment or (c) for other consideration which, from time to time, is not considered good or adequate consideration. |
| 18. | A Share shall be issued by the entry of the name of the registered holder thereof in the register of members of the Company confirming that such Share has been issued fully paid-up. |
| 19. | The Company shall not, by virtue of or in connection with any Securities to be allotted, issued and/or co-issued by it or the giving by it of any Guarantees, give any financial assistance, as contemplated by sections 82 and 1043 of the Companies Act for the purpose of any acquisition of shares in the capital of the Company or any company which, from time to time, is the holding company of the Company, save as permitted by, or pursuant to an exemption to, the said sections 82 and 1043. |
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| 20. | The Company and any other entity whose obligations are guaranteed by it under any of the Indentures or any supplemental indenture together comprise a “group” for the purposes of section 243 of the Companies Act and any person that subsequently becomes an issuer, co-issuer or a guarantor under any of the Indentures or any supplemental indenture will also be a member of such group. |
| 21. | In entering into the Documents and approving the allotment, issue, co-issue and/or sale of any Securities or the giving of any Guarantee, there shall be no intent by the directors and/or any duly authorised officer of the Company acting under delegated authority to give a creditor a preference which could be deemed to be an unfair preference in accordance with section 604 of the Companies Act. |
| 22. | The obligations expressed to be assumed by each party to the Indentures are legal, valid, binding and enforceable obligations under all applicable laws and in all applicable jurisdictions, other than, in the case of the Company, the laws of Ireland and the jurisdiction of Ireland and any obligations expressed to be assumed by each party to any supplemental indenture(s) will be legal, valid, binding and enforceable obligations under all applicable laws and in all applicable jurisdictions, including the laws of Ireland and the jurisdiction of Ireland. |
| 23. | If any obligation of any of the parties under any of the Indentures or any supplemental indenture(s) is to be performed in any jurisdiction other than Ireland, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction and there are no provisions of the laws or public policy of any jurisdiction outside Ireland which would be contravened by the execution or performance of any of the Indentures or any supplemental indenture(s) or which would render their performance ineffective by virtue of the laws of that jurisdiction. |
| 24. | The Indenture, any supplemental indenture(s) and the transactions contemplated thereby and the payments to be made thereunder are not and will not be affected by any financial restrictions or sanctions arising from orders made by the Irish Minister for Finance under the Financial Transfers Act 1992 of Ireland and/or section 42 of the Criminal Justice (Terrorist Offences) Act 2005 of Ireland or the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 of Ireland. |
| 25. | All authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the agreements or arrangements referred to in the Registration Statement (including the prospectus contained therein and any prospectus supplement) or with respect to the issue, co-issue, offer or sale of any Securities or the giving of any Guarantees (other than, in the case of the Company, the governmental or regulatory authorities of Ireland) have been, or will be, obtained and are, or will be, in full force and effect, all Securities and Guarantees will conform with the descriptions contained in the Registration Statement (including the prospectus contained therein and any prospectus supplement) and, subject to such changes as may be required in order to comply with any requirement of Irish law, the selling restrictions contained in the Registration Statement (including the prospectus and any supplemental prospectus) have been and will, at all times, be observed and the Company will otherwise comply with the terms of any other lawful agreements relating to the issue, co-issue, sale and/or offer of any Securities or the giving of any Guarantees. |
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| 26. | The creation, issuance, co-issuance, offer or sale, including the marketing, of any Securities or the giving of any Guarantees will be made, effected and conducted in accordance with and will not otherwise violate any applicable laws and regulations of any jurisdiction, including Ireland, or supra-national authority, including, without limitation: (a) the securities laws and regulations of any jurisdiction or supra-national authority which impose any restrictions, or mandatory requirements, in relation to the offering or sale of the Securities to the public in any jurisdiction, including the obligation to prepare a prospectus or registration document relating to any Securities and (b) any requirement or restriction imposed by any court, governmental body or supra-national authority having jurisdiction over the Company or the members of its group. |
| 27. | That: (a) the Company will be fully solvent at the time of and immediately following the issue and/or co-issue of any Securities or the giving of any Guarantees, (b) no resolution or petition for the appointment of a liquidator or examiner will be passed or presented prior to the issue and/or co-issue of any Securities or the giving of any Guarantees, (c) no receiver will have been appointed in relation to any of the assets or undertaking of Aon plc prior to the issue and/or co-issue of any Securities or the giving of any Guarantees and (d) no composition in satisfaction of debts, scheme of arrangement, or compromise or arrangement with creditors or members (or any class of creditors or members) will be proposed, sanctioned or approved in relation to Aon plc prior to the issue and/or co-issue of any Securities or the giving of any Guarantees. |
| 28. | The information disclosed by the Searches was accurate and complete as of the date the Searches were made and has not been altered, and the Searches did not fail to disclose any information which had been delivered for registration but which did not appear from the information available at the time the Searches were made or which ought to have been delivered for registration at that time but had not been so delivered. No additional matters would have been disclosed by searches being carried out since that time. |
| 29. | No proceedings have been or will be instituted or injunction granted against the Company to restrain it from issuing and/or co-issuing any Securities or giving any Guarantees and the issue, co-issue or giving of same would not be contrary to any state, government, court, state or quasi-governmental agency, licencing authority, local or municipal government body or regulatory authority’s order, direction, guideline, recommendation, decision, licence or requirement. |
| 30. | The absence of fraud and the presence of good faith on the part of all parties to the Documents and any other relevant documents and their respective officers, employees, agents and advisors. |
| 31. | No Securities will be listed or traded on a stock exchange or other market in the European Economic Area. |
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Schedule 3
Qualifications
The opinions in this Opinion are subject to the following qualifications:
| 1. | A search at the Companies Registration Office is not conclusively capable of revealing whether or not a winding-up petition or a petition for the appointment of an examiner, receiver or liquidator has been presented or a resolution passed for the winding-up of the Company. A search on the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland is not capable of revealing whether or not a receiver has been appointed in respect of the Company. |
| 2. | Whilst each of the making of a winding-up order, the making of an order for the appointment of an examiner or the appointment of a receiver may be revealed by a search at the Companies Registration Office it may not be filed at the Companies Registration Office immediately and, therefore, our searches at the Companies Registration Office may not have revealed such matters. Similarly whilst a petition to wind-up the Company may be revealed by a search on Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, the making of a winding-up order may not be filed on the Index immediately and therefore our searches may not have revealed such matters. |
| 3. | The position reflected in the Searches may not be fully up to date. |
| 4. | The expressions “validly” and “valid and binding” when used in this Opinion mean that the obligations expressed to be assumed are of a type which the courts of Ireland will treat as valid and binding. It does not mean that these obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular, enforcement of obligations may be: |
| (a) | limited by general principles of equity, in particular, equitable remedies (such as an order for specific performance or an injunction) which are discretionary and are not available where damages are considered to be an adequate remedy; |
| (b) | subject to any limitations arising from examinership, administration, bankruptcy, insolvency, moratoria, receivership, liquidation, reorganisation, court scheme of arrangement, arrangement and similar laws affecting the rights of creditors; |
| (c) | limited by the provisions of the laws of Ireland applicable to contracts held to have been frustrated by events happening after their execution; |
| (d) | invalidated if and to the extent that performance or observance arising in a jurisdiction outside Ireland would be unlawful, unenforceable, or contrary to public policy or to the exchange control regulations under the laws of such jurisdiction; |
| (e) | invalidated by reason of fraud; and |
| (f) | barred under the Statutes of Limitations of 1957 of Ireland (as amended from time to time) or may be or become subject to the defence of set-off or counterclaim. |
| 5. | The Companies Act prohibits certain steps being taken except with the leave of the court against a company after the presentation of a petition for the appointment of an examiner. This prohibition continues if an examiner is appointed for so long as the examiner remains appointed |
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| (maximum period of one hundred days or such period as the court in question may determine). Prohibited steps include steps taken to enforce any security over the company’s property, the commencement or continuation of proceedings or execution or other legal process or the levying of distress against the company or its property and the appointment of a receiver. |
| 6. | Under the provisions of the Companies Act, an examiner can be appointed on a petition to the Circuit Court, if certain criteria are met. It is not possible for anyone other than a party to the relevant proceedings or the solicitors on record for such parties to inspect the Circuit Court files to ascertain whether a petition for the appointment of an examiner has been made in the Circuit Court, and we have made no searches or enquiries in this regard in respect of the Company. |
| 7. | A contractual provision conferring or imposing a remedy or an obligation consequent upon default may not be enforceable if it were construed by an Irish court as being a penalty, particularly if it involved enforcing an additional pecuniary remedy (such as a default or overdue interest) referable to such default and which does not constitute a genuine and reasonable pre-estimate of the damage likely to be suffered as a result of the default in payment of the amount in question or the termination in question; further, recovery may be limited by laws requiring mitigation of loss suffered. |
| 8. | An Irish court may not give effect to an indemnity given by any party to the extent it is in respect of legal costs incurred by an unsuccessful litigator or to the extent that it is in respect of litigation costs which are not awarded by the court. |
| 9. | In the event of any proceedings being brought in an Irish court in respect of a monetary obligation expressed to be payable in a currency other than euro, an Irish court would have the power to give a judgment to pay a currency other than euro but may decline to do so in its discretion and an Irish court might not enforce the benefit of currency conversion or indemnity clauses and, with respect to a bankruptcy, liquidation, insolvency, reorganisation or similar proceeding, the laws of Ireland may require that all claims or debts be converted into euro at an exchange rate determined by the court as at a date related thereto, such as the date of commencement of a winding-up. |
| 10. | This Opinion does not deal with the tax (including stamp duty) treatment of the issuance, co-issuance, transfer and/or assignment of any Securities or the giving, transfer and/or assignment of any Guarantees or any payments in respect of any Securities or Guarantees, or any other tax matter. |
| 11. | Where a party is vested with a discretion or may determine a matter in his or its opinion, the laws of Ireland may require that such discretion is exercised reasonably or that such opinion is based upon reasonable grounds. |
| 12. | The courts of Ireland may interpret restrictively any provision purporting to allow the beneficiary of a guarantee or other suretyship to make a material amendment to the obligations to which the guarantee or suretyship relates without further reference to the guarantor or surety. |
| 13. | An Irish court may not give effect to any provision of a contract which (a) provides for a matter to be determined by future agreement or negotiation or (b) it considers to be devoid of any meaning, vague or uncertain. |
| 14. | A right of set-off provided for in a contract or another document may not be enforceable in all circumstances. |
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Exhibit 5.3
|
Execution Version |
|
Aon Global Holdings plc The Aon Centre The Leadenhall Building 122 Leadenhall Street London, EC3V 4AN
Aon Global Limited The Aon Centre The Leadenhall Building 122 Leadenhall Street London, EC3V 4AN |
London Freshfields Bruckhaus Deringer LLP 100 Bishopsgate London EC2P 2SR T +44 20 7936 4000 (Switchboard) +44 20 7832 7022 (Direct) F +44 20 7108 7022 LDE No 23 E peter.allen@freshfields.com www.freshfields.com |
22 June 2023
Registration Statement on Form S-3
Introduction
1. In connection with the new automatic shelf registration statement or an amendment thereto on Form S-3 (the Registration Statement) of Aon Corporation, a Delaware corporation, Aon North America, Inc., a Delaware corporation (ANA), Aon plc, an Irish public limited company, Aon Global Limited, a private limited company incorporated under the laws of England and Wales (AGL) (which will act as guarantor only), and Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales (AGH, and, together with Aon Corporation, ANA, Aon plc and AGL, the Registrants), under the United States Securities Act of 1933, as amended (the Securities Act), we have been requested to render our opinion on certain matters in connection with the Registration Statement. The Registration Statement relates to the registration under the Securities Act by the Registrants of the issuance and sale of an indeterminate number of the following: (i) co-issued debt securities of Aon plc, (ii) debt securities or co-issued debt securities of AGH, (iii) debt securities or co-issued debt securities of Aon Corporation, (iv) debt securities or co-issued debt securities of ANA (each of the foregoing issued or co-issued debt securities, which may consist of notes, debentures and/or other evidences of indebtedness, (the Debt Securities), (v) guarantees of the Debt Securities (the Guarantees) and (vi) certain preference shares and class A ordinary shares in the capital of Aon plc and certain share purchase contracts and share purchase units.
Freshfields Bruckhaus Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC334789. It is authorised and regulated by the Solicitors Regulation Authority (SRA no. 484861). For further regulatory information please refer to www.freshfields.com/support/legal-notice.
A list of the members (and of the non-members who are designated as ‘partners’) of Freshfields Bruckhaus Deringer LLP is available for inspection at its registered office, 100 Bishopsgate, London EC2P 2SR. Any reference to a ‘partner’ means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any associated firms or entities.
2. We are acting as English legal advisers to AGH and AGL, for the purposes of giving this opinion in connection with AGH and AGL’s filing (together with the other named Registrants) on the date hereof, of the Registration Statement under the Securities Act with the U.S. Securities and Exchange Commission (Commission). In so acting, we have examined the following documents:
| (a) | the Registration Statement; |
| (b) | a copy of the current Articles of Association of AGH as at 22 June 2023; |
| (c) | a copy of AGH’s Certificate of Incorporation dated 16 September 2014, issued by the Registrar of Companies of England and Wales, together with a copy of AGH’s Certificate of Incorporation on re-registration of a private limited company as a public limited company dated 29 April 2020 ((b) and (c) together the AGH Constitutional Documents); |
| (d) | a copy of the current Articles of Association of AGL as at 22 June 2023; |
| (e) | a copy of AGL’s Certificate of Incorporation dated 8 December 2011, issued by the Registrar of Companies of England and Wales, together with copies of AGL’s Certificate of Incorporation on change of name dated 23 December 2011, Certificate of Incorporation on change of name and registration of a private company as a public company dated 30 March 2012 and Certificate of Incorporation on change of name and registration of a public company as a private company dated 15 July 2020 ((d) and (e) together the AGL Constitutional Documents and, together with the AGH Constitutional Documents, the Constitutional Documents); |
| (f) | a form of: |
| (i) | an indenture, to be filed with the Commission as an exhibit to the Registration Statement, to be made among AGH, as issuer or co-issuer, any of Aon plc, Aon Corporation or ANA, as co-issuer, and Aon plc, AGL, Aon Corporation and/or ANA, to the extent not acting as co-issuer, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented, from time to time, by one or more, duly authorised, executed and lawful supplemental indenture(s), the AGH Indenture); |
| (ii) | an amended and restated indenture, to be filed with the Commission as an exhibit to the Registration Statement, to be made among Aon Corporation, as issuer or co-issuer, any of Aon plc, AGH or ANA, as co-issuer, and Aon plc, AGL, AGH and/or ANA, to the extent not acting as co-issuer, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented, from time to time, by one or more, duly authorised, executed and lawful supplemental indenture(s), the Aon Corporation Indenture); |
| (iii) | an indenture, to be filed with the Commission as an exhibit to the Registration Statement, to be made among ANA, as issuer or co-issuer, any of Aon plc, AGH or Aon Corporation, as co-issuer, and Aon plc, AGL, AGH and/or Aon Corporation, to the extent not acting as co-issuer, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented, from time to time, by one or more, duly authorised, executed and lawful supplemental indenture(s), the ANA Indenture and, together with the AGH Indenture and the Aon Corporation Indenture, the Indentures, and together with the Guarantees, the Documents); |
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| (g) | searches carried out on 22 June 2023 with respect to each of AGH and AGL (carried out by us or by LegalinX Limited trading as GlobalX on our behalf) of the public documents of AGH and AGL kept at Companies House in Cardiff (the Company Searches); |
| (h) | a winding up enquiry of the Central Registry of Winding up Petitions (carried out by us or by GlobalX on our behalf) on 22 June 2023 with respect to each of AGH and AGL (the Winding-up Enquiry); |
| (i) | a certificate issued to us by the Company Secretary of AGH dated 22 June 2023 (the AGH Secretary’s Certificate); |
| (j) | a certificate issued to us by the Company Secretary of AGL dated 22 June 2023 (the AGL Secretary’s Certificate and together with the AGH Secretary’s Certificate, the Secretaries’ Certificates); |
| (k) | written resolutions of the board of directors of AGH approved on 21 May 2023, as evidenced by the written resolutions included in the AGH Secretary’s Certificate, authorising the execution and delivery of and performance of obligations under the Documents, the filing of the Registration Statement and the execution and delivery of and performance of obligations under, when issued, the Debt Securities and the Guarantees; and |
| (l) | written resolutions of the board of directors of AGL approved on 21 May 2023, as evidenced by the written resolutions included in the AGL Secretary’s Certificate, authorising the execution and delivery of and performance of obligations under the Documents and the filing of the Registration Statement and the execution and delivery of and performance of obligations under, when issued, the Guarantees, |
and relied upon the statements as to factual matters contained in or made pursuant to each of the above mentioned documents.
3. This opinion is confined to matters of English law (including case law) as at the date of this opinion and is governed by and should be construed in accordance with English law. 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. Accordingly, we express no opinion herein with regard to any system of law other than the laws of England as currently applied by the English courts. We express no opinion as to whether or not a foreign court (applying its own conflict rules) will act in accordance with the parties’ agreement as to jurisdiction and/or choice of law or uphold the terms of the Documents or the Debt Securities. A reference in this opinion to a statutory provision (including for the avoidance of doubt any onshored EU legislation) is to it as amended.
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4. We express no opinion herein in respect of the tax treatment of the Registration Statement or the Documents or the transactions contemplated by the Registration Statement or the Documents, and you have not relied on any advice from us herein in relation to the tax implications of such matters, for you or any other person, whether in the United Kingdom or in any other jurisdiction, or the suitability of any tax provisions in the Registration Statement or the Documents.
5. To the extent that the laws of the United States, the laws of the State of New York or the Delaware Limited Liability Company Act may be relevant, our opinion is subject to the effect of such laws including the matters contained in the opinion of Sidley Austin LLP and to the extent that the laws of the Ireland may be relevant, our opinion is subject to the effect of such laws including the matters contained in the opinion of Matheson. We express no views on the validity of the matters set out in such opinions.
Assumptions
6. In considering the above documents and in rendering this opinion we have with your consent and without any further enquiry assumed:
| (a) | Authenticity: (A) the genuineness of all signatures, (B) that a signatory has personally signed the Document either (i) by hand (a wet ink signatory); or (ii) by adding an image or their signature to an electronic version of the Document; or (iii) by adding their signature to an electronic version of the Document on an approved web-based electronic signing platform (e-platform) contemplated by the parties; or (iv) by using a mouse, finger, stylus or similar to sign their name in an electronic version of the Document on a touchscreen device such as an iPad (each signature referred to in (ii) to (iv) an e-signature, and each signatory referred to in (ii) to (iv) an e-signatory), and (C) the genuineness of all stamps and seals on, and the authenticity, accuracy and completeness of, all documents submitted to us (whether as originals or copies); |
| (b) | Copies: the conformity to originals of all documents supplied to us as photocopies, portable document format (PDF) copies, facsimile copies or e-mail conformed copies; |
| (c) | Witnessing: that where a document has been witnessed, each witness has personally witnessed the signature of that document by the person whose signature they are witnessing and has applied its own witness signature or authorised its witness signature to be appended to the final text or any electronic version of the final text of the document only after doing so; |
| (d) | Virtual Signings: that the parties have complied with the procedures for counterpart signature and delivery of the Documents contemplated by the parties and their legal advisers and that the parties have validly authorised the attachment of their respective signature pages to the final texts of the Documents; |
| (e) | Confirmation by Counsel: in any case where a party’s counsel has attached and released the signature pages of that party’s counterparts of the Documents, that such counsel had all necessary authority from that party to do so; |
| (f) | Drafts: that, where a document has been examined by us in draft or specimen form, it will be or has been duly executed and delivered in the form of that draft or specimen; |
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| (g) | Secretaries’ Certificates: that each of the statements contained in the Secretaries’ Certificates is true and correct as at the date hereof; |
| (h) | Written Resolutions of AGL: that the written resolutions approved by AGL on 21 May 2023, as evidenced by the written resolutions included in the AGL Secretary’s Certificate, were properly passed, that all provisions contained in the Companies Act 2006 and the Articles of Association of AGL relating to the disclosure of directors’ interests and the power of interested directors to vote were duly observed, and that such resolutions have not been amended, modified or revoked and are in full force and effect; the directors of AGL having any interest in any of the matters duly disclosed their interest therein and were entitled to approve the written resolutions; and such resolutions remain in full force and effect without modification; |
| (i) | Written Resolutions of AGH: that the written resolutions approved by AGH on 21 May 2023, as evidenced by the written resolutions included in the AGH Secretary’s Certificate, were properly passed, that all provisions contained in the Companies Act 2006 and the Articles of Association of AGH relating to the disclosure of directors’ interests and the power of interested directors to vote were duly observed, and that such resolutions have not been amended, modified or revoked and are in full force and effect; the directors of AGH having any interest in any of the matters duly disclosed their interest therein and were entitled to approve the written resolutions; and such resolutions remain in full force and effect without modification; |
| (j) | Other Parties’ Corporate Capacity/Approval: that each of the parties to the Documents (other than AGH and AGL) has the necessary capacity and corporate power to execute, deliver and perform its obligations under the Documents, and that the Documents have been duly authorised and executed and delivered by each of the parties thereto in accordance with all applicable laws (other than in the case of AGH and AGL, the laws of England) in the form filed as an exhibit to the Registration Statement; |
| (k) | Corporate Authorisation: that the Debt Securities of a particular issuance will, upon issue, be duly authorised, executed, issued, authenticated and delivered by AGH and/or AGL and will be offered and sold in accordance with the provisions of the relevant Documents and as described in the Registration Statement and there will be no provision in any supplement relating to the Debt Securities or any other document which would affect the content of this opinion; |
| (l) | Validity under other laws: that the Documents and, when issued, the Debt Securities constitute legal, valid and binding obligations of each of the parties thereto enforceable under all applicable laws including the laws of the United States and the laws of the State of New York by which they are expressed to be governed (other than in the case of AGH and AGL, the laws of England); that satisfactory evidence of the laws of the United States and the State of New York, which is required to be pleaded and proved as a fact in any proceedings before the English Courts, could be so pleaded and proved; and that insofar as the laws and regulations of any other jurisdiction may be relevant to (i) the obligations or rights of any of the parties under the Documents, or (ii) any of the transactions contemplated by the Documents , such laws and regulations do not prohibit, and are not inconsistent with, the entering into and performance of any such obligations, rights or transactions; |
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| (m) | Filings under other laws: that all consents, licences, approvals, notices, filings, recordations, publications and registrations which are necessary under any applicable laws (other than, in the case of AGH and AGL, the laws of England) in order to permit the execution, delivery or performance of the Documents or to perfect, protect or preserve any of the interests created by the Documents, have been made or obtained, or will be made or obtained within the period permitted or required by such laws or regulations; |
| (n) | No Amendments: that the Documents have not been amended, terminated, rescinded or varied, that there has been no breach of any of its provisions by any of the parties thereto which would affect the opinions expressed in this opinion, and that the Documents are not affected in any way by any relevant provisions of any other document or agreement or any course of dealings between the parties thereto; |
| (o) | Unknown Facts: that there are no facts or circumstances (and no documents, agreements, instruments or correspondence) which are not apparent from the face of the documents we have reviewed or which have not been disclosed to us that may affect the validity or enforceability of the Documents or any obligation therein or otherwise affect the opinions expressed in this opinion; |
| (p) | Arm’s Length Terms: that the Documents have been entered into for bona fide commercial reasons and on arm’s length terms by each of the parties thereto; |
| (q) | Directors’ Duties: that the directors of each of AGL and AHL in authorising the filing of the Registration Statement and the execution and delivery of and performance of obligations under the Documents and, when issued, the Debt Securities, have exercised their powers in accordance with their duties under all applicable laws and the Constitutional Documents, as applicable, in force at the applicable time; |
| (r) | FSMA: that the sale of the Debt Securities or the consummation by AGH and AGL of the transactions contemplated by the Documents (as relevant) will not constitute an “offer to the public” within the meaning of Part VI of the Financial Services and Markets Act 2000 (the FSMA) and does not require the publication by AGL or AHL of a prospectus pursuant to Onshored Regulation (EU) 2017/1129, as it forms part of the laws of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018; |
| (s) | Authorisation under FSMA: that each person dealing with AGH and/or AGL in connection with the Debt Securities which is carrying on, or purporting to carry on, a regulated activity (within the meaning of section 19 of the Financial Services and Markets Act 2000) is an authorised person or an exempt person for the purposes of the FSMA; |
| (t) | FSMA (Financial promotion): that the Registration Statement (including such document in draft and preliminary form) and any other invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) in connection with the issue or sale of the Debt Securities has only been and will only be communicated or caused to be communicated in circumstances in which section 21(1) of the FSMA does not apply to AGH and/or AGL; |
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| (u) | Company Searches: that the information revealed by the Company Searches: (i) was accurate in all respects and has not since the time of such search been altered; and (ii) was complete, and included all relevant information which had been properly submitted to the Registrar of Companies; |
| (v) | Winding up Enquiry: that the information revealed by our Winding-up Enquiry was accurate in all respects and has not since the time of such enquiry been altered; |
| (w) | Representations: that the terms of the Documents have been and will be observed and performed by the parties thereto; |
| (x) | Financial crime, national security and investment, antitrust and criminal cartel, sanctions, pensions and human rights etc: that the parties to the Documents and all persons representing them have complied (and will continue to comply) with all applicable anti-terrorism, national security and investment laws, anti-corruption, anti-money laundering, anti-tax evasion, other financial crime, civil or criminal antitrust, cartel, competition, public procurement, state aid, subsidy control, sanctions, pensions and human rights laws and regulations which may affect them, the transactions contemplated by the Documents , and that performance and enforcement of them, the transactions contemplated by the Documents is, and will continue to be, consistent with all such laws and regulations; |
| (y) | Bad Faith, Fraud, Duress: the absence of bad faith, breach of duty, breach of trust, fraud, coercion, duress or undue influence on the part of any of the parties to the Documents and their respective directors, employees, agents and advisers (excepting ourselves); and |
| (aa) | No issuance as a private limited company: that AGL will not issue any Debt Securities until or unless it re-registers as a public limited company prior to such issuance. |
Opinion
7. On the basis of and subject to the foregoing and the matters set out in paragraphs 8 and 9 below and any matters not disclosed to us, and having regard to such considerations of English law in force as at the date of this letter as we consider relevant, we are of the opinion that:
| (a) | Corporate Existence: AGH has been duly incorporated in the United Kingdom and registered in England and Wales as a public limited company and AGL has been duly incorporated in the United Kingdom and registered in England and Wales as a private limited company; |
| (b) | Corporate Power: (i) AGL has the requisite corporate power and capacity to issue, deliver and perform its obligations under the Documents and, when issued, the Guarantees in accordance with the terms of the Documents and (ii) AGH has the requisite corporate power and capacity to issue, deliver and perform its obligations under the Documents and, when issued, the Debt Securities and the Guarantees in accordance with the terms of the Documents and the Debt Securities under the Indentures; |
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| (c) | Corporate Authority: (i) AGL has taken the steps required under English law and the AGL Constitutional Documents to authorise AGL to enter into and perform its obligations under the Documents and, when issued, the Guarantees in accordance with the terms of the Documents and (ii) AGH has taken the steps required under English law and the AGH Constitutional Documents to authorise AGH to enter into and perform its obligations under the Documents and, when issued, the Debt Securities and the Guarantees in accordance with the terms of the Documents and the Debt Securities under the Indentures; |
| (d) | No Violation: the execution and delivery of the Debt Securities and the Documents and the performance of AGH’s and AGL’s obligations thereunder (in accordance with the terms of the relevant Document) have been respectively duly authorised by all necessary corporate action on the part of AGH and AGL and do not and will not of themselves result in any violation by AGH or AGL of any term of their respective Constitutional Documents or of any law or regulation having the force of law in England and applicable to AGH or AGL as to performance. |
Qualifications
8. Our opinion is subject to the following qualifications:
| (a) | Company Searches: the Company Searches are 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 records of the relevant company immediately.
In addition, the Company Searches are 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;
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| (b) | Winding up Enquiry: 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, (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, and (iv) a notice of a moratorium under Part A1 of the Insolvency Act 1986. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention, notice of appointment or notice of a moratorium 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 (A) an application for the making of an administration order; (B) the filing of a notice of intention to appoint an administrator; (C) the filing of a notice of appointment of an administrator; or (D) the filing of a notice of a moratorium, 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, 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 to 1994; |
| (c) | Foreign Courts: no opinion is given as to whether or not the chosen court will take jurisdiction (applying its own conflict rules), or act in accordance with the parties’ agreement as to choice of law or whether the English courts would grant a stay of any proceedings commenced in England, or whether the English courts would grant any ancillary relief in relation to proceedings commenced in a foreign court; |
| (d) | Financial Limitations: no opinion is given as to the compliance or otherwise with: (i) the financial limitations on borrowings or covenants by each of AGH and AGL contained in the relevant Constitutional Documents; or (ii) the limitations on the maximum aggregate principal amount of the Debt Securities which may be issued by the relevant issuer or co-issuer(s) and irrevocably guaranteed by the entities not acting as issuer or co-issuer as contemplated by the Registration Statement; and |
| (e) | Insolvency: this opinion is subject to all applicable laws relating to insolvency, bankruptcy, administration, moratorium, reorganisation, liquidation or analogous circumstances and other similar laws of general application relating to or affecting generally the enforcement of creditor’s rights and remedies from time to time. |
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Observations
9. Factual Statements: It should be understood that we have not been responsible for investigating or verifying the accuracy of the facts, including the statements of foreign law, or the reasonableness of any statement or opinion or intention contained in or relevant to any document referred to herein, or that no material facts have been omitted therefrom. This opinion is also given on the basis that we undertake no responsibility to notify you of any change in English law after the date of this opinion.
10. Pensions: In giving this opinion, we have not considered whether the transactions contemplated by the Documents (including the issuance of Debt Securities) might constitute a criminal offence or otherwise attract criminal liability under the amendments made by the UK Pension Schemes Act 2021 to the UK Pensions Act 2004.
11. National Security & Investment Act 2021: We have not considered whether the transactions contemplated by the Documents (including the issuance of the Debt Securities) comply with the National Security & Investment Act 2021, nor whether any filings, clearances, notifications or disclosures are required or advisable under such law.
Benefit of Opinion
12. This opinion is addressed to you solely for your own benefit for the purposes of the Registration Statement to be filed under the Securities Act and, except with our prior written consent, is not to be transmitted or disclosed to or used or relied upon by any other person or used or relied upon by you for any other purpose. Your reliance on the matters addressed in this opinion letter is on the basis that any associated recourse is against the firm’s assets only and not against the personal assets of any individual partner. The firm’s assets for this purpose consist of all assets of the firm’s business, including any right of indemnity of the firm or its partners under the firm’s professional indemnity insurance policies, but excluding any right to seek contribution or indemnity from or against any partner of the firm or person working for the firm or similar right. The restrictions in the previous sentences apply to any claim, whether in contract, tort (including negligence) for breach of statutory duty, or otherwise, but they do not apply in the case of our wilful misconduct or fraud or where and to the extent prohibited by applicable law and regulation (including without limitation, the rules of professional responsibility governing the practice of law).
Having requested production of this opinion and in order to rely on its contents, you agree to be bound by its terms.
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We consent to the filing of this opinion as an Exhibit 5.3 to the Registration Statement to be filed by the Registrants on the date hereof and to the reference to our firm under the heading “Validity of securities” in the prospectus constituting a part of the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required by the Securities Act or by the rules and regulations promulgated thereunder.
Yours faithfully
/s/ Freshfields Bruckhaus Deringer LLP
Freshfields Bruckhaus Deringer LLP
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Exhibit 22.1
Subsidiary Guarantors and Issuers of Guaranteed Securities
The table below sets forth the respective issuers, co-issuers and guarantors of the notes issued by Aon Global Limited, Aon Global Holdings plc and Aon Corporation and the jurisdiction of incorporation of each such entity.
| Aon Corporation |
Aon Global Limited |
Aon Corporation and | ||||||
| Entity |
Jurisdiction of Incorporation |
8.205% Junior Subordinated Notes |
4.00% Senior Notes due 2023 |
2.85% Senior Notes due 2027 5.35% Senior Notes due 2033 | ||||
| Aon plc | Ireland | Guarantor | Guarantor | Guarantor | ||||
| Aon Global Limited | UK | Guarantor | Issuer | Guarantor | ||||
| Aon Global Holdings plc | UK | Guarantor | Guarantor | Co-Issuer | ||||
| Aon Corporation | US | Issuer | Guarantor | Co-Issuer | ||||
| Aon North America, Inc. | US | Guarantor | Guarantor | Guarantor | ||||
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Aon plc, Aon Global Limited, Aon Global Holdings plc, Aon Corporation and Aon North America, Inc. for the registration of debt securities, guarantees, preference shares, Class A Ordinary Shares, share purchase contracts and share purchase units and to the incorporation by reference therein of our reports dated February 17, 2023, with respect to the consolidated financial statements of Aon plc, 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, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
June 22, 2023
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) |
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.) |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) |
Aon Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 36-3051915 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-1539969 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Limited
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1030901 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Holdings plc
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1199820 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon North America, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 52-1245792 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Debt Securities
and Guarantees of 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”).
| 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). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 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. |
- 3 -
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 Jacksonville, and State of Florida, on the 14th day of June, 2023.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business March 31, 2023, 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 |
2,821 | |||
| Interest-bearing balances |
524,227 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
1,038 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
14,362 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
116,025 | |||
|
|
|
|||
| Total assets |
$ | 1,514,786 | ||
|
|
|
|||
1
| LIABILITIES | ||||
| Deposits: |
||||
| In domestic offices |
1,079 | |||
| Noninterest-bearing |
1,079 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
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 |
286,970 | |||
| Total liabilities |
288,049 | |||
| Not applicable |
||||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
325,877 | |||
| Not available |
||||
| Retained earnings |
899,862 | |||
| Accumulated other comprehensive income |
-2 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,226,737 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,226,737 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,514,786 | |||
|
|
|
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 )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Managing 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) |
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.) |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) |
Aon Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 36-3051915 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-1539969 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Limited
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1030901 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Holdings plc
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1199820 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon North America, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 52-1245792 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Debt Securities
and Guarantees of 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”).
| 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). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 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. |
- 3 -
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 Jacksonville, and State of Florida, on the 14th day of June, 2023.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business March 31, 2023, 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 |
2,821 | |||
| Interest-bearing balances |
524,227 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
1,038 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
14,362 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
116,025 | |||
|
|
|
|||
| Total assets |
$ | 1,514,786 | ||
|
|
|
|||
1
| LIABILITIES | ||||
| Deposits: |
||||
| In domestic offices |
1,079 | |||
| Noninterest-bearing |
1,079 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
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 |
286,970 | |||
| Total liabilities |
288,049 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
325,877 | |||
| Not available |
||||
| Retained earnings |
899,862 | |||
| Accumulated other comprehensive income |
-2 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,226,737 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,226,737 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,514,786 | |||
|
|
|
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 )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Managing 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) |
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.) |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) |
Aon Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 36-3051915 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-1539969 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Limited
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1030901 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Holdings plc
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1199820 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon North America, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 52-1245792 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Debt Securities
and Guarantees of 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”).
| 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). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 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. |
- 3 -
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 Jacksonville, and State of Florida, on the 14th day of June, 2023.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business March 31, 2023, 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 |
2,821 | |||
| Interest-bearing balances |
524,227 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
1,038 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
14,362 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
116,025 | |||
|
|
|
|||
| Total assets |
$ | 1,514,786 | ||
|
|
|
|||
1
| LIABILITIES | ||||
| Deposits: |
||||
| In domestic offices |
1,079 | |||
| Noninterest-bearing |
1,079 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
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 |
286,970 | |||
| Total liabilities |
288,049 | |||
| Not applicable |
||||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
325,877 | |||
| Not available |
||||
| Retained earnings |
899,862 | |||
| Accumulated other comprehensive income |
-2 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,226,737 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,226,737 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,514,786 | |||
|
|
|
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 )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Managing 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) |
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.) |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) |
Aon Global Holdings plc
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1199820 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-1539969 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Limited
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1030901 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 36-3051915 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon North America, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 52-1245792 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Debt Securities
and Guarantees of 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”).
| 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). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 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. |
- 3 -
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 Jacksonville, and State of Florida, on the 14th day of June, 2023.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business March 31, 2023, 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 |
2,821 | |||
| Interest-bearing balances |
524,227 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
1,038 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
14,362 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
116,025 | |||
|
|
|
|||
| Total assets |
$ | 1,514,786 | ||
|
|
|
|||
1
| LIABILITIES | ||||
| Deposits: |
||||
| In domestic offices |
1,079 | |||
| Noninterest-bearing |
1,079 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
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 |
286,970 | |||
| Total liabilities |
288,049 | |||
| Not applicable |
||||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
325,877 | |||
| Not available |
||||
| Retained earnings |
899,862 | |||
| Accumulated other comprehensive income |
-2 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,226,737 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,226,737 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,514,786 | |||
|
|
|
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 )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Managing 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) |
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.) |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) |
Aon North America, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 52-1245792 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-1539969 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Limited
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1030901 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Global Holdings plc
(Exact name of registrant as specified in its charter)
| England and Wales | 98-1199820 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Aon Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 36-3051915 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| c/o Aon plc Metropolitan Building James Joyce Street Dublin 1, Ireland D01 K0Y8 |
||
| (Address of principal executive offices) | (Zip code) |
Debt Securities
and Guarantees of 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”).
| 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). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 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. |
- 3 -
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 Jacksonville, and State of Florida, on the 14th day of June, 2023.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business March 31, 2023, 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 |
2,821 | |||
| Interest-bearing balances |
524,227 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
1,038 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
14,362 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
116,025 | |||
|
|
|
|||
| Total assets |
$ | 1,514,786 | ||
|
|
|
|||
1
| LIABILITIES | ||||
| Deposits: |
||||
| In domestic offices |
1,079 | |||
| Noninterest-bearing |
1,079 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
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 |
286,970 | |||
| Total liabilities |
288,049 | |||
| Not applicable |
||||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
325,877 | |||
| Not available |
||||
| Retained earnings |
899,862 | |||
| Accumulated other comprehensive income |
-2 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,226,737 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,226,737 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,514,786 | |||
|
|
|
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 )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Managing Director )
2