AON 8-K
Aon plc (AON)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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| Item 8.01 | Other Events. |
On February 28, 2024, Aon North America, Inc., a Delaware corporation (the “Issuer”), Aon plc, an Irish public limited company (“Aon plc”), Aon Corporation, a Delaware corporation (“Aon Corporation”), Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales (“AGH”), and Aon Global Limited, a private limited company incorporated under the laws of England and Wales (“AGL” and, together with Aon plc, Aon Corporation and AGH, the “Guarantors” and each, a “Guarantor”), entered into an underwriting agreement (the “Underwriting Agreement”) with Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, HSBC Securities (USA) Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein (collectively, the “Underwriters”), with respect to the offering and sale by the Issuer of $600,000,000 aggregate principal amount of 5.125% senior unsecured notes due 2027 (the “2027 Notes”), $1,000,000,000 aggregate principal amount of 5.150% senior unsecured notes due 2029 (the “2029 Notes”), $650,000,000 aggregate principal amount of 5.300% senior unsecured notes due 2031 (the “2031 Notes”) and $1,750,000,000 aggregate principal amount of 5.450% senior unsecured notes due 2034 (the “2034 Notes” and, together with the 2027 Notes, the 2029 Notes and the 2031 Notes, the “NFP Acquisition Notes”) and $2,000,000,000 aggregate principal amount of 5.750% senior unsecured notes due 2054 (the “2054 Notes” and, together with the NFP Acquisition Notes, the “Notes”), pursuant to the Issuer’s shelf registration statement on Form S-3 (Registration File No. 333-272818-02). Each Guarantor has fully and unconditionally, jointly and severally, guaranteed the Notes pursuant to the Indenture (as defined below) (collectively, the “Guarantees” and, together with the Notes, the “Securities”). The Securities were issued pursuant to an indenture, dated March 1, 2024 (the “Base Indenture”), among the Issuer, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as amended and supplemented by a first supplemental indenture, dated March 1, 2024 (the “First Indenture Supplement” and, together with the Base Indenture, the “Indenture”), among the Issuer, the Guarantors and the Trustee.
The 2027 Notes are senior unsecured debt obligations of the Issuer, mature on March 1, 2027 and bear interest at a rate of 5.125% per annum. The 2029 Notes are senior unsecured debt obligations of the Issuer, mature on March 1, 2029 and bear interest at a rate of 5.150% per annum. The 2031 Notes are senior unsecured debt obligations of the Issuer, mature on March 1, 2031 and bear interest at a rate of 5.300% per annum. The 2034 Notes are senior unsecured debt obligations of the Issuer, mature on March 1, 2034 and bear interest at a rate of 5.450% per annum. The 2054 Notes are senior unsecured debt obligations of the Issuer, mature on March 1, 2054 and bear interest at a rate of 5.750% per annum.
Prior to February 1, 2027 (in the case of the 2027 Notes), February 1, 2029 (in the case of the 2029 Notes), January 1, 2031 (in the case of the 2031 Notes), December 1, 2033 (in the case of the 2034 Notes) and September 1, 2053 (in the case of the 2054 Notes) (each, a “Par Call Date”), the Issuer may redeem the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes and/or the 2054 Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of the principal amount and rounded to three decimal places) equal to the greater of:
| • | (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes of such series being redeemed discounted to the redemption date (assuming the Notes of such series being redeemed matured on the applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the First Indenture Supplement), plus (i) 15 basis points (0.150%), in the case of the 2027 Notes, (ii) 15 basis points (0.150%), in the case of the 2029 Notes, (iii) 20 basis points (0.200%), in the case of the 2031 Notes, (iv) 20 basis points (0.200%), in the case of the 2031 Notes and (v) 25 basis points (0.250%), in the case of the 2054 Notes, less (b) accrued and unpaid interest to the date of redemption, and |
| • | 100% of the principal amount of the Notes of such series being redeemed, |
plus, in each case, accrued and unpaid interest on the principal amount of the Notes being redeemed to the redemption date.
On or after the applicable Par Call Date, the Issuer may redeem the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes and/or the 2054 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the redemption date.
In the event that the previously announced acquisition by Randolph Acquisition Corp., a Delaware corporation and an indirect, wholly owned subsidiary of Aon plc (the “Acquirer”), of NFP Intermediate Holdings A Corp., a Delaware corporation (“NFP” and such acquisition, the “NFP Acquisition”) pursuant to the agreement and plan of merger, dated as of December 19, 2023 (the “Merger Agreement”), entered into by and among Aon plc, the Acquirer and NFP, among others, is not consummated on or before the earliest of (i) December 19, 2024 (subject to extension of up to six months if one or more regulatory approvals remain outstanding), (ii) the valid termination of the Merger Agreement (other than in connection with the consummation of the NFP Acquisition) and (iii) the Issuer’s determination based on its reasonable judgment (in which case the Issuer will notify the Trustee in writing thereof) that the NFP Acquisition will not be consummated, the Issuer will be required to redeem all of the outstanding NFP Acquisition Notes of each series (but not the 2054 Notes) at a redemption price equal to 101% of the aggregate principal amount of such NFP Acquisition Notes, plus accrued and unpaid interest, if any, to, but excluding, the redemption date in the manner set forth in the First Indenture Supplement.
The net proceeds from the offering of the Notes, after deducting the underwriting discounts and estimated offering expenses payable by the Issuer, were approximately $5,928,882,035. Aon plc, together with its consolidated subsidiaries, intends to use the net proceeds from the offering of the Notes for general corporate purposes, including, together with the net proceeds of the delayed draw term loan facility established by the Issuer on February 16, 2024 and, to the extent necessary, cash on hand or other sources of liquidity, to (i) pay the cash consideration with respect to the NFP Acquisition, (ii) effect the repayment or redemption of certain outstanding indebtedness of NFP and NFP Corp., a Delaware corporation and a wholly owned subsidiary of NFP, and (iii) pay fees, premiums and expenses in connection with the foregoing.
The preceding description of the Underwriting Agreement, the Base Indenture, the First Indenture Supplement and the Securities does not purport to be complete and is qualified entirely by reference to the full text of the Underwriting Agreement, the Base Indenture, the First Indenture Supplement and the form of the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes and the 2054 Notes (in each case, including the Guarantees), which are filed as Exhibits 1.1, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and 4.7, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
In connection with the issuance of the Securities, Cravath, Swaine & Moore LLP is filing the legal opinion attached as Exhibit 5.1 to this Current Report on Form 8-K, Freshfields Bruckhaus Deringer LLP is filing the legal opinion attached as Exhibit 5.2 to this Current Report on Form 8-K and Matheson LLP is filing the legal opinion attached as Exhibit 5.3 to this Current Report on Form 8-K.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AON PLC. | ||
| By: | /s/ Darren Zeidel | |
| Name: | Darren Zeidel | |
| Title: | Executive Vice President, General Counsel and Company Secretary | |
Date: March 1, 2024
Exhibit 1.1
Aon North America, Inc.
Aon plc
Aon Corporation
Aon Global Limited
Aon Global Holdings plc
$600,000,000 5.125% Senior Notes due 2027
$1,000,000,000 5.150% Senior Notes due 2029
$650,000,000 5.300% Senior Notes due 2031
$1,750,000,000 5.450% Senior Notes due 2034
$2,000,000,000 5.750% Senior Notes due 2054
UNDERWRITING AGREEMENT
February 28, 2024
Citigroup Global Markets Inc.
Morgan Stanley & Co. LLC
HSBC Securities (USA) Inc.
J.P. Morgan Securities LLC
As representatives (the “Representatives”) of the several underwriters listed in Exhibit A hereto
| c/o | Citigroup Global Markets Inc. | |
| 388 Greenwich Street | ||
| New York, New York 10013 | ||
| c/o | Morgan Stanley & Co. LLC | |
| 1585 Broadway | ||
| New York, New York 10036 | ||
| c/o | HSBC Securities (USA) Inc. | |
| 452 Fifth Avenue | ||
| New York, New York 10018 | ||
| c/o | J.P. Morgan Securities LLC | |
| 383 Madison Avenue | ||
| New York, New York 10179 | ||
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Ladies and Gentlemen:
| 1. | Introductory. |
| (a) | Aon North America, Inc., a Delaware corporation (the “Issuer”), agrees with the several underwriters named in Exhibit A hereto (the “Underwriters”) to issue and sell to the several Underwriters $600,000,000 principal amount of its 5.125% Senior Notes due 2027 (the “2027 Notes”), $1,000,000,000 principal amount of its 5.150% Senior Notes due 2029 (the “2029 Notes”), $650,000,000 principal amount of its 5.300% Senior Notes due 2031 (the “2031 Notes”), $1,750,000,000 principal amount of its 5.450% Senior Notes due 2034 (the “2034 Notes”) and $2,000,000,000 principal amount of its 5.750% Senior Notes due 2054 (the “2054 Notes” and, together with the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes, the “Notes”), to be issued under an indenture dated as of the Closing Date (as defined below) (the “Base Indenture”), among the Issuer, the Guarantors (as defined below) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by a supplemental indenture to be dated as of the Closing Date (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) among the Issuer, the Guarantors and the Trustee. The Notes will be fully and unconditionally guaranteed as to the payment of principal and interest by Aon plc, a public limited company formed under the laws of Ireland (“Aon plc”), Aon Corporation, a Delaware corporation (“Aon Corporation”), Aon Global Limited, a private limited company incorporated under the laws of England and Wales (“AGL”), and Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales (“AGH” and, together with Aon plc, Aon Corporation and AGL, the “Guarantors,” and each, a “Guarantor,” and such guarantees, the “Guarantees”). The Notes, together with the Guarantees, are referred to in this Agreement as the “Securities.” |
| (b) | Aon plc, Randolph Acquisition Corp., a Delaware corporation and an indirect, wholly owned subsidiary of Aon plc (“Acquirer”), Randolph Merger Sub LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of the Acquirer (“Merger Sub” and, collectively with Aon plc and Acquirer, the “Aon Parties”), NFP Intermediate Holdings A Corp., a Delaware corporation (“Target”), and NFP Parent Co, LLC, a Delaware limited liability company (“Target Seller” and, collectively with Target, the “Target Parties”), entered into an agreement and plan of merger (the “Merger Agreement”) dated as of December 19, 2023, pursuant to which, subject to the terms and conditions thereof, the Acquirer will acquire the issued and outstanding equity interests of NFP. The term “Merger Agreement” as used herein shall include all exhibits, schedules, disclosure letters and attachments to such Merger Agreement. |
| 2. | Representations and Warranties of the Issuer. Each of the Issuer and the Guarantors represents and warrants to, and agrees with, the several Underwriters that: |
| (a) | Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Issuer and the Guarantors have filed with the Commission a registration statement on Form S-3 (Nos. 333-272818, 333-272818-01, 333-272818-02, 333-272818-03 and 333-272818-04), including a related prospectus or prospectuses, covering the registration of the Securities under the Act, which has become effective. “Registration Statement” at any particular time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. “Registration Statement” without reference to a time means such registration statement as of the time as of which such registration statement was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c). For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. |
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 5:50 p.m. (New York City time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
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“Final Prospectus” means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Securities, and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Exhibit B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Issuer’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002, as amended, and all rules and regulations promulgated thereunder or implementing the provisions thereof (“Sarbanes-Oxley”), the Act, the Exchange Act, the Trust Indenture Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of The New York Stock Exchange (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus relating to the Securities that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that such form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
| (b) | Compliance with Act Requirements. (i) (A) At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus) and (C) on the Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act and (ii) statements in or omissions from any such document based upon written information furnished to the Issuer by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof. |
| (c) | Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer Status. (A) At the time of initial filing of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the time the Issuer, the Guarantors or any person acting on their respective behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163, each of the Issuer and the Guarantors was a “well-known seasoned issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined in Rule 405. |
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| (ii) | Effectiveness of Automatic Shelf Registration Statement. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date of this Agreement. |
| (iii) | Eligibility to Use Automatic Shelf Registration Form. Neither the Issuer nor any of the Guarantors has received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form. |
| (iv) | Filing Fees. The Issuer or a Guarantor has paid or shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). |
| (d) | General Disclosure Package. As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the preliminary prospectus supplement, dated February 27, 2024, including the base prospectus, dated June 22, 2023 (which is the most recent Statutory Prospectus distributed to investors generally), any document incorporated by reference therein and the other information, if any, stated in Exhibit B to this Agreement to be included in the General Disclosure Package, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the General Disclosure Package in reliance upon and in conformity with written information furnished to the Issuer by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof. |
| (e) | Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the Closing Date or until any earlier date that the Issuer notified or notify the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus and prior to the Closing Date there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would, when considered together with the rest of the General Disclosure Package, include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Issuer has promptly notified or will promptly notify the Representatives and (ii) the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. |
| (f) | Good Standing of the Issuer and the Guarantors. Each of the Issuer and the Guarantors has been duly incorporated or formed, as applicable, and is existing and, where such concept applies, in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority, where such concept applies, to own its properties and conduct its business as described in the General Disclosure Package; and each of the Issuer and the Guarantors is duly qualified to do business as a foreign corporation in good standing, where such concept applies, in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify or be in good standing would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect or any development or event involving a prospective material adverse effect on the financial condition, results of operations, business or properties of the Issuer, the Guarantors and their respective subsidiaries taken as a whole (“Material Adverse Effect”). |
| (g) | Significant Subsidiaries. Each subsidiary of Aon plc designated on Exhibit C hereto (each, a “Significant Subsidiary”) (i) has been duly incorporated and is existing and in good standing, where such concept applies, under the laws of the jurisdiction of its incorporation and (ii) has the corporate power and authority to own its properties and conduct its business as described in the General Disclosure Package, except, in the case of clause (h) above, as would not reasonably be expected to have a Material Adverse Effect; and each Significant Subsidiary is duly qualified to do business as a foreign corporation in good standing, where such concept applies, in all other jurisdictions in which its |
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| ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify or be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and nonassessable; and except as described in the General Disclosure Package, the capital stock of each Significant Subsidiary owned by Aon plc, directly or through subsidiaries, is owned free from liens, encumbrances and security interests. |
| (h) | Execution and Delivery of Indenture. When each of the Base Indenture and the Supplemental Indenture has been duly executed by each of the Issuer and the Guarantors (assuming due authorization, execution and delivery thereof by the Trustee), the Indenture will constitute a valid and binding agreement of each of the Issuer and the Guarantors, enforceable against the Issuer and the Guarantors in accordance with its terms; the Indenture has been qualified under the Trust Indenture Act; the Notes and Guarantees have been duly authorized and, when the Notes and the Guarantees are delivered and paid for pursuant to this Agreement on the Closing Date, such Notes will have been duly executed, authenticated, issued and delivered by each of the Issuer and the Guarantors (assuming that the Notes have been authenticated in the manner provided for in the Indenture) and such Guarantees will have been duly executed, issued and delivered, and the Notes and the Guarantees will conform in all material respects to the information in the General Disclosure Package and to the description of the Securities contained in the Final Prospectus and the Indenture, and the Securities will constitute valid and legally binding obligations of the Issuer or the Guarantors, as the case may be, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (i) | Absence of Further Requirements. No consent, approval, authorization or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement or the Indenture in connection with the offering, issuance and sale of the Securities by the Issuer and the Guarantors, except such as have been obtained or made and such as may be required under federal or state securities laws and except as disclosed or contemplated in the General Disclosure Package and the Final Prospectus. |
| (j) | Absence of Defaults and Conflicts Resulting from Transaction. The issuance and sale by the Issuer and the Guarantors of the Securities and the execution and delivery by the Issuer and the Guarantors of this Agreement, and the performance by the Issuer and the Guarantors of their respective obligations under this Agreement, the Indenture and the Securities, will not contravene (i) the articles of association, certificate of incorporation or by-laws of the Issuer or the Guarantors, as applicable, (ii) any agreement or other instrument binding upon Aon plc or any of its subsidiaries or (iii) any provision of applicable law or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer, the Guarantors or any of their respective subsidiaries, except for, in the cases of clauses (ii) and (iii) above, any such contravention that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. |
| (k) | Absence of Existing Defaults and Conflicts. Neither the Issuer nor any of the Guarantors is in violation of its organizational documents or in default (or with the giving of notice or lapse of time would be in default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument or agreement to which it is a party or by which it or any of its properties may be bound, which violation or default would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. |
| (l) | Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Guarantors. |
| (m) | Possession of Licenses and Permits. The Issuer, the Guarantors and their respective subsidiaries possess such certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by them as described in the Registration Statement, the General Disclosure Package and the Final Prospectus and, to the knowledge of the Issuer and the Guarantors, have not received any notice of proceedings relating to the revocation or modification of any certificates, authorities or permits, except where the failure to possess such certificates, authorities or permits would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. |
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| (n) | Absence of Labor Dispute. No labor dispute with the employees of the Issuer, the Guarantors or any of their respective subsidiaries exists or, to the knowledge of the Issuer and the Guarantors, is imminent that would reasonably be expected to have a Material Adverse Effect. |
| (o) | Accurate Disclosure. The statements in the General Disclosure Package and the Final Prospectus under the headings “Description of Debt Securities and Guarantees,” “Material U.S. Federal Income Tax Consequences,” “Certain U.K. Tax Consequences” and “Certain Irish Tax Consequences,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are, in all material respects, accurate and fair summaries of such legal matters, agreements, documents or proceedings and present the information required to be shown. |
| (p) | Absence of Stabilization or Manipulation. Neither the Issuer nor any of the Guarantors has taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Issuer in connection with the offering of the Securities. |
| (q) | Internal Controls. There are no material weaknesses in Aon plc’s internal controls over financial reporting (“Internal Controls”). Except as disclosed in the General Disclosure Package, since the date of the latest audited financial statements included in the General Disclosure Package, there has been no change in Aon plc’s internal control that has materially affected, or is reasonably likely to materially affect, Aon plc’s Internal Controls. Aon plc maintains a system of Internal Controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory compliance controls, that complies with Rule 13a-15 under the Exchange Act and is sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”) and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. |
| (r) | Litigation. There are no legal or governmental proceedings pending or, to the knowledge of the Issuer or Guarantors, threatened to which the Issuer, the Guarantors or any of their respective subsidiaries is a party or to which any of the properties of the Issuer, the Guarantors or any of their respective subsidiaries is subject, other than proceedings fairly summarized in all material respects in the General Disclosure Package and proceedings which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or materially impair the power or ability of the Issuer or the Guarantors to perform its obligations under this Agreement, the Indenture or the Securities or to consummate the offering contemplated hereby. |
| (s) | Financial Statements. (i) The financial statements included in the Registration Statement, the General Disclosure Package and the Final Prospectus present fairly in all material respects the financial position of Aon plc and Aon plc’s consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity in all material respects with GAAP applied on a consistent basis; and (ii) the assumptions used in preparing the pro forma financial statements included in the Registration Statement, the General Disclosure Package and the Final Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. The pro forma financial statements included in the Registration Statement, the General Disclosure Package and the Final Prospectus comply as to form in all material respects with the applicable accounting requirements of Regulation S-X under the Act. |
| (t) | No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest audited financial statements included in the General Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the financial condition, results of operations, business or properties of the Issuer, the Guarantors and their respective subsidiaries, taken as a whole, that is material and adverse. |
| (u) | Investment Company Act. Neither the Issuer nor any of the Guarantors is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the General Disclosure Package, neither the Issuer nor any of the Guarantors will be, required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”). |
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| (v) | No Unlawful Payments. (i) Except to the extent as would not reasonably be expected to have a Material Adverse Effect or except as disclosed in the General Disclosure Package, the Issuer and the Guarantors are in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977 and other applicable United States and foreign anti-corruption laws and regulations (collectively the “Anti-Corruption Laws”), (ii) since January 1, 2011, except to the extent as would not reasonably be expected to have a Material Adverse Effect or except as disclosed in the General Disclosure Package, neither the Issuer nor any of the Guarantors has been notified of or, in each case, to its knowledge, investigated for a potential violation of Anti-Corruption Laws, and (iii) the Issuer, the Guarantors and their respective subsidiaries have an operational anti-corruption compliance program that includes, at a minimum, policies, procedures and training intended to enhance awareness of and compliance by the Issuer, the Guarantors or their respective subsidiaries with Anti-Corruption Laws. |
| (w) | Compliance with Money Laundering Laws. The operations of the Issuer, the Guarantors and their respective subsidiaries are and have been conducted at all times and in all material respects in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and all applicable anti-money laundering laws, rules and regulations (collectively, the “Anti-Money Laundering Laws”); and none of the Issuer, any of the Guarantors or any of their respective subsidiaries has been notified of or, in each case, to its knowledge has been investigated for a potential violation of the Anti-Money Laundering Laws. |
| (x) | Compliance with OFAC. (i) None of the Issuer, the Guarantors or any of the Guarantors’ subsidiaries or, to the knowledge of the Issuer and the Guarantors, any director, officer, employee or affiliate of the Issuer, the Guarantors or any of the Guarantors’ subsidiaries is currently, or is owned or controlled by an individual or entity (“Person”) that is, (A) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union or HM Treasury (collectively, “Sanctions”); or (B) organized, located or a resident in a country or territory that is currently the subject of Sanctions, including without limitation, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria; and (ii) the Issuer will not directly or, to their knowledge, indirectly use all or part of the proceeds of the offering of the Securities, or lend, contribute or otherwise make available all or part of such proceeds, to any subsidiary, joint venture partner or other person or entity to fund or facilitate any activities or business of or with any Person, or in any country or territory, that, at the time of such funding or facilitation, is the subject of Sanctions, or in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as initial purchaser, underwriter, advisor, investor or otherwise). |
| (y) | Taxes. The Guarantors and the Issuer and each of the Significant Subsidiaries have filed all U.S. federal, U.K. and material U.S. state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof; all such returns were true and complete in all material respects; all taxes shown as due and payable on such returns have been timely paid, or withheld and remitted, to the appropriate taxing authority (except as currently being contested in good faith and for which reserves required by applicable U.S. or other generally accepted accounting principles have been created in the financial statements of Aon plc); and no material tax deficiency has been determined adversely to the Issuer or any of the Significant Subsidiaries which has not been paid. |
| (z) | Choice of Laws. The choice of laws of the State of New York (without giving effect to its conflicts of law principles) as the governing law of this Agreement, the Securities and the Indenture (including the Guarantees set forth therein) is a valid choice of law under the laws of England and Wales and of Ireland and will be honored by the courts of England and Wales and of Ireland. |
| (aa) | Jurisdiction. The Issuer and the Guarantors have the power to submit, and pursuant to Section 17 of this Agreement have legally, validly, effectively and irrevocably submitted, to the non-exclusive jurisdiction of Federal and state courts in the Borough of Manhattan in the City of New York; and the Guarantors have the power to designate, appoint and empower, and pursuant to Section 17 of this Agreement, has legally, validly and effectively designated, appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Agreement in Federal and state courts, as applicable, in the Borough of Manhattan in the City of New York. |
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| (bb) | eXtensible Business Reporting Language Interactive Data. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the required information in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. |
| (cc) | Cybersecurity. Except as to such matters as would not, singly or in the aggregate, reasonably likely result in a Material Adverse Effect: (i) to the reasonable knowledge of the Issuer, there has been no security breach or other compromise of any of the Issuer’s, the Guarantors’ or any of their subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and the Issuer, the Guarantors and their subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; and (ii) the Issuer, the Guarantors and their subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations, in each case, relating to the privacy and security of IT Systems and Data. |
| (dd) | Merger Agreement. The Merger Agreement has been duly authorized, executed and delivered by the Aon Parties and, to the knowledge of the Issuer and the Guarantors, by the Target and the Target Seller, and the Merger Agreement is a valid and binding obligation of the Aon Parties enforceable against the Aon Parties and, to the knowledge of the Issuer and the Guarantors, is a valid and binding obligation of the Target Parties enforceable against the Target Parties, in each case in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. To the knowledge of the Issuer and the Guarantors, the representations and warranties of the Target Parties contained in the Merger Agreement (as qualified therein and in the disclosure schedules thereto) were, as of the date of the Merger Agreement, and are, as of the date hereof, true and accurate in all material respects (or, if any such representations or warranties are qualified by materiality, material adverse effect or similar language, true and correct in all respects). |
| 3. | Purchase, Sale and Delivery of the Securities. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Issuer agree to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Issuer: at a purchase price of 99.405% of the principal amount of the 2027 Notes plus accrued interest, if any, from March 1, 2024 to, but excluding, the Closing Date (the “2027 Notes Purchase Price”), at a purchase price of 99.386% of the principal amount of the 2029 Notes plus accrued interest, if any, from March 1, 2024 to, but excluding, the Closing Date (the “2029 Notes Purchase Price”), at a purchase price of 99.240% of the principal amount of the 2031 Notes plus accrued interest, if any, from March 1, 2024 to, but excluding, the Closing Date (the “2031 Notes Purchase Price”), at a purchase price of 99.298% of the principal amount of the 2034 Notes plus accrued interest, if any, from March 1, 2024 to, but excluding, the Closing Date (the “2034 Notes Purchase Price”) and at a purchase price of 98.517% of the principal amount of the 2054 Notes plus accrued interest, if any, from March 1, 2024 to, but excluding, the Closing Date (the “2054 Notes Purchase Price”, and each of the 2027 Notes Purchase Price, the 2029 Notes Purchase Price, the 2031 Notes Purchase Price, the 2034 Notes Purchase Price and the 2054 Notes Purchase Price, a “Purchase Price”), the principal amounts of Securities set forth opposite the names of the Underwriters in Exhibit A hereto. |
The Issuer will deliver the Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the applicable Purchase Price by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives through the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, NY 10017, at 10:00 a.m., New York time, on March 1, 2024, or at such other time not later than seven full business days thereafter as the Representatives and the Issuer determine, such time being herein referred to as the “Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Securities sold pursuant to the offering.
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The Securities so to be delivered or evidence of their issuance will be made available for inspection at the above office of Davis Polk & Wardwell LLP at least 24 hours prior to the Closing Date.
| 4. | Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus. |
| 5. | Certain Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors agree with the several Underwriters that: |
| (a) | Filing of Prospectuses. The Issuer and the Guarantors have filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and consented to by the Representatives, subparagraph 5) not later than the second business day following the earlier of the date it is first used or the execution and delivery of this Agreement. The Issuer and the Guarantors have complied and will comply in all material respects with Rule 433. |
| (b) | Filing of Amendments; Response to Commission Requests. The Issuer and the Guarantors will promptly advise the Representatives of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Representatives a reasonable opportunity to comment on any such amendment or supplement; and the Issuer and the Guarantors will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose and (iv) the receipt by the Issuer or any of the Guarantors of any notification with respect to the suspension of the qualification of the Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Issuer and the Guarantors will use their commercially reasonable efforts to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement or the suspension of any such qualification where such lack of qualification would have a material adverse impact on the offering of Securities contemplated hereby and, if issued, to obtain as soon as possible the withdrawal thereof. |
| (c) | Continued Compliance with Securities Laws. If, at any time on or prior to the completion of the public offer and sale of the Securities when a prospectus relating to the Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Issuer and the Guarantors will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; provided that any such amendment or supplement required to be prepared after 90 days following the Closing Date shall be at the expense of the Underwriters. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof. |
| (d) | Rule 158. As soon as practicable, but not later than 16 months, after the date of this Agreement, the Issuer will make generally available to their securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158. |
| (e) | Furnishing of Prospectuses. The Issuer and the Guarantors will furnish to the Representatives copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives may reasonably request during such period of time after the first date of the public offering of the Securities as is required by law to be delivered (or required to be delivered but for Rule 172 under the Act) by any Underwriter. |
| (f) | Blue Sky Qualifications. The Issuer and the Guarantors will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and will continue such qualifications in effect so long as required for the distribution; provided that neither |
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| the Issuer nor a Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. |
| (g) | Payment of Expenses. The Issuer and Guarantors will pay all expenses incident to the performance of their respective obligations under this Agreement, including but not limited to expenses of printing and distributing to the Underwriters prospectuses described in Section 5(e), any fees charged by investment rating agencies for the rating of the Securities, costs and expenses relating to investor presentations or any “road show” in connection with the offering and sale of the Securities including, without limitation, any travel expenses of the officers and employees of the Issuer and Guarantors, and any other expenses of the Issuer or Guarantors, fees and expenses incident to listing the Securities on the New York Stock Exchange, the NYSE American, Nasdaq Stock Market and other national and foreign exchanges, fees and expenses in connection with the registration of the Securities under the Exchange Act, and expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors. It is understood, however, that, except as provided in this Agreement, the Underwriters will pay all of their costs and expenses, including fees and expenses of counsel to the Underwriters, transfer taxes payable on resale of the Securities by them and any advertising expenses connected with any offers they make. |
| (h) | Use of Proceeds. The Issuer will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package. |
| (i) | Absence of Manipulation. The Issuer and the Guarantors will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Issuer or Guarantors to facilitate the sale or resale of the Securities. |
| (j) | Restriction on Disposition of Notes. The Issuer and the Guarantors will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, United States dollar-denominated debt securities issued or guaranteed by the Issuer or any of the Guarantors and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives, during the period beginning on the date hereof and ending on the Closing Date. |
| 6. | Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Issuer and the Guarantors each represent and agree that, unless they obtain the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Issuer, the Guarantors and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Issuer, the Guarantors and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors represent that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply in all material respects with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. |
| (b) | Term Sheets. The Issuer and Guarantors will prepare a final term sheet relating to the Securities, containing only information that describes the final terms of the Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) following the date such final terms have been established for the offering of the Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Issuer and Guarantors also consent to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Issuer and the Guarantors contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement. |
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| 7. | Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Securities on the Closing Date will be subject to the accuracy of the representations and warranties of the Issuer and the Guarantors herein (as though made on the Closing Date), to the accuracy of the statements of the officers of the Issuer made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder and to the following additional conditions precedent: |
| (a) | Aon Accountants’ Comfort Letter. The Representatives shall have received letters, dated, respectively, the date hereof with respect to the General Disclosure Package and the Closing Date with respect to the Final Prospectus, of Ernst & Young LLP, a registered public accounting firm and independent public accountants with respect to Aon plc within the meaning of the Securities Laws, in form and substance reasonably satisfactory to the Representatives and containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus, and the specified date of such letters shall be a date no more than three business days prior to the date hereof or the Closing Date, as applicable. |
| (b) | Filing of Prospectus. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Issuer, the Guarantors or any Underwriter, shall be contemplated by the Commission. |
| (c) | No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the financial condition, results of operations, business or properties of the Issuer, the Guarantors and their respective subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Issuer or any of the Guarantors by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Issuer or any of the Guarantors for a possible downgrading of such rating or any announcement that the Issuer or any of the Guarantors has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impracticable to market or to enforce contracts for the sale of the Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Issuer or any of the Guarantors on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Securities or to enforce contracts for the sale of the Securities. |
| (d) | Opinion of In-House Counsel to the Issuer. The Representatives shall have received an opinion, to be dated as of the Closing Date, of the In-House Counsel to the Issuer, in form and substance reasonably satisfactory to the Representatives. |
| (e) | Opinion of Special U.K. Counsel for AGL and AGH, Opinion of Special U.S. Counsel for the Issuer and the Guarantors and Opinion of Special Irish Counsel for Aon plc. The Representatives shall have received an opinion, to be dated as of the Closing Date, of Freshfields Bruckhaus Deringer LLP, special U.K. counsel to AGH and AGL, an opinion, to be dated as of the Closing Date, of Cravath, Swaine & Moore LLP, special U.S. counsel to the Issuer and the Guarantors, an opinion, to be dated as of the Closing Date, of Matheson LLP, special Irish counsel to Aon plc, in form and substance reasonably satisfactory to the Representatives. |
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| (f) | Opinion and Disclosure Letter of Counsel for Underwriters. The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the Underwriters, an opinion and a disclosure letter, to be dated as of the Closing Date, with respect to such matters as the Representatives may reasonably require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. |
| (g) | Officers’ Certificate. The Representatives shall have received a certificate, to be dated as of the Closing Date, of an executive officer of the Issuer and the Guarantors and a principal financial or accounting officer or treasurer of the Issuer and the Guarantors in which such officers shall state that: the representations and warranties of the Issuer and the Guarantors in clauses (a), (c), (d), (e), (i), (j), (l), (o), (u), (x) and (dd) of Section 2 of this Agreement are true and correct in all material respects; the representations and warranties of the Issuer and the Guarantors in clauses (b), (f), (g), (h), (k), (m), (n), (p), (q), (r), (s), (t), (v), (w), (y), (z), (aa), (bb) and (cc) of Section 2 of this Agreement are true and correct; the Issuer and the Guarantors have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, results of operations, business or properties of the Issuer, Guarantors and their respective subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate. |
The Issuer and the Guarantors will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives may reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
| 8. | Indemnification and Contribution. (a) Indemnification of the Underwriters. The Issuer and the Guarantors will jointly and severally indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Issuer and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from (i) that part of the Registration Statement that constitutes the Form T-1 of the Trustee under the Trust Indenture Act and (ii) any of such documents in reliance upon and in conformity with written information furnished to the Issuer by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below. |
| (b) | Indemnification of the Issuer and the Guarantors. Each Underwriter will severally and not jointly indemnify and hold harmless each of the Issuer, the Guarantors, each of their respective directors and each of their respective officers who signs a Registration Statement and each person, if any, who controls the Issuer or any Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”), against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon |
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| the omission or the alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Issuer by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the following information in the General Disclosure Package and the Final Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the third paragraph under the caption “Underwriting”; the statement of market making with respect to the Underwriters in the third sentence of the fifth paragraph under the caption “Underwriting”; and the description of stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids appearing in the ninth paragraph under the caption “Underwriting.” |
| (c) | Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) or above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party in such action), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified party. |
| (d) | Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuer and the Guarantors on the one hand and the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Issuer bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer and the Guarantors or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this |
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| subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. The Issuer, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d). |
| 9. | Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase the Securities hereunder on the Closing Date and the aggregate principal amount of the Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total principal amount of the Securities that the Underwriters are obligated to purchase on the Closing Date, the Representatives may make arrangements satisfactory to the Issuer for the purchase of the Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Securities that such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal amount of the Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of the Securities that the Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the Representatives and the Issuer for the purchase of the Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Issuer, except as provided in Section 10. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default. |
| 10. | Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Issuer, the Guarantors or their officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Issuer, the Guarantors or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Securities. If the purchase of the Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 7(c)(iii), 7(c)(iv), 7(c)(vi), 7(c)(vii), 7(c)(viii) or 9 hereof, the Issuer and the Guarantors will reimburse the Underwriters for all out-of-pocket expenses reasonably incurred by them in connection with the offering of the Securities, and the respective obligations of the Issuer, the Guarantors and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition, if any Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect. |
| 11. | Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed: |
| • | to the Representatives at: Citigroup Global Markets Inc., 388 Greenwich Street, New York NY 10013, Attention: General Counsel, Fax: 646-291-1469; Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10036, Attention: Investment Banking Division (fax: (212) 507-8999); HSBC Securities (USA) Inc., 452 Fifth Avenue, New York, New York 10018, Attention: Transaction Management Group; and J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk, Fax: (212) 834-6081; and |
| • | to the Issuer at Aon North America, Inc., 200 East Randolph Street, Chicago, Illinois 60601, Attention: General Counsel; |
provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
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| 12. | Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder. |
| 13. | Representation of Underwriters. The Representatives will act for the several Underwriters in connection with this financing, and any action under this Agreement taken by the Representatives jointly will be binding upon all the Underwriters. |
| 14. | Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). 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. |
| 15. | Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of this Agreement. |
| 16. | Absence of Fiduciary Relationship. The Issuer and the Guarantors acknowledge and agree that: |
| (a) | No Other Relationship. The Representatives have been retained solely to act as underwriters in connection with the sale of the Securities and that no fiduciary, advisory or agency relationship between the Issuer, on the one hand, and the Representatives, on the other, has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the Representatives have advised or are advising the Issuer or any of the Guarantors on other matters; |
| (b) | Arms’ Length Negotiations. The price of the Securities set forth in this Agreement was established by the Issuer and the Guarantors following discussions and arms’ length negotiations with the Representatives, and the Issuer and the Guarantors are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; |
| (c) | Absence of Obligation to Disclose. The Issuer and the Guarantors have been advised that the Representatives and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Issuer or any of the Guarantors and that the Representatives have no obligation to disclose such interests and transactions to the Issuer or any of the Guarantors by virtue of any fiduciary, advisory or agency relationship; and |
| (d) | Waiver. The Issuer and the Guarantors waive, to the fullest extent permitted by law, any claims either of the Issuer or any of the Guarantors may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the Representatives shall have no liability (whether direct or indirect) to the Issuer or any of the Guarantors in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Issuer, including members, stockholders, employees or creditors of the Issuer or any of the Guarantors. |
| 17. | Applicable Law. (a) This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to its conflicts of law principles. |
| (b) | Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement. |
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| (c) | Submission to Jurisdiction. The Issuer and the Guarantors hereby submit to the non-exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in the City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Issuer and the Guarantors irrevocably and unconditionally waive any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in federal and state courts in the Borough of Manhattan in the City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum. The Guarantors hereby irrevocably appoint the Issuer with an office at 200 East Randolph Street, Chicago, Illinois 60601, Attention: General Counsel, as their agent to receive on behalf of the Guarantors service of any legal process which may be served in all such actions and proceedings. Such service may be made by mail or delivery of such process to the Guarantors in care of such agent at the agent’s address set forth above and the Guarantors hereby irrevocably authorize and direct such agent to accept such service on behalf of the Guarantors. |
| 18. | Recognition of the U.S. Special Resolution Regimes. |
| (a) | In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
| (b) | In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
| 19. | Compliance with USA PATRIOT Act. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuer, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. |
| 20. | UK Bail-in Liability. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding among any Underwriter, the Issuer and the Guarantors, the Issuer and the Guarantors acknowledge and accept that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority , and acknowledges, accepts, and agrees to be bound by: |
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| (a) | the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of an Underwriter to the Issuer or the Guarantors under this agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of such Underwriter or another person, and the issue to or conferral on the Issuer and the Guarantors, as applicable, of such shares, securities or obligations; |
| (iii) | the cancellation of the UK Bail-in Liability; |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority. |
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
[Signature Pages Follow.]
17
If the foregoing is in accordance with the Representatives’ understanding of our agreement, kindly sign and return to us your counterpart hereof, whereupon it will become a binding agreement among the Issuer, the Guarantors and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||
| AON NORTH AMERICA, INC. | ||||
| By: | /s/ Robert Lee | |||
| Name: | Robert Lee | |||
| Title: | Vice President | |||
| AON PLC | ||||
| By: | /s/ Paul Hagy | |||
| Name: | Paul Hagy | |||
| Title: | Treasurer | |||
| AON CORPORATION | ||||
| By: | /s/ Robert Lee | |||
| Name: | Robert Lee | |||
| Title: | Vice President | |||
| AON GLOBAL LIMITED | ||||
| By: | /s/ Alistair Boyd | |||
| Name: | Alistair Boyd | |||
| Title: | Director | |||
| AON GLOBAL HOLDINGS PLC | ||||
| By: | /s/ Gardner Mugashu | |||
| Name: | Gardner Mugashu | |||
| Title: | Director | |||
[Signature Page to Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Acting on behalf of itself and as a
Representative of the several Underwriters
| CITIGROUP GLOBAL MARKETS INC. | ||||
| By: | /s/ Adam D. Bordner | |||
| Name: | Adam D. Bordner | |||
| Title: | Managing Director | |||
[Signature Page to Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Acting on behalf of itself and as a
Representative of the several Underwriters
| MORGAN STANLEY & CO. LLC | ||||
| By: | /s/ Erica Mui | |||
| Name: | Erica Mui | |||
| Title: | Managing Director | |||
[Signature Page to Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Acting on behalf of itself and as a
Representative of the several Underwriters
| HSBC SECURITIES (USA) INC. | ||||
| By: | /s/ Patrice Altongy | |||
| Name: | Patrice Altongy | |||
| Title: | Managing Director | |||
[Signature Page to Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Acting on behalf of itself and as a
Representative of the several Underwriters
| J.P. MORGAN SECURITIES LLC | ||||
| By: | /s/ Robert Bottamedi | |||
| Name: | Robert Bottamedi | |||
| Title: | Executive Director | |||
[Signature Page to Underwriting Agreement]
EXHIBIT A
| Underwriter |
Principal Amount of the 2027 Notes |
Principal Amount of the 2029 Notes |
Principal Amount of the 2031 Notes |
Principal Amount of the 2034 Notes |
Principal Amount of the 2054 Notes |
|||||||||||||||
| Citigroup Global Markets Inc. |
$ | 94,500,000 | $ | 157,500,000 | $ | 102,375,000 | $ | 275,625,000 | $ | 315,000,000 | ||||||||||
| Morgan Stanley & Co. LLC |
$ | 82,500,000 | $ | 137,500,000 | $ | 89,375,000 | $ | 240,625,000 | $ | 275,000,000 | ||||||||||
| HSBC Securities (USA) Inc. |
$ | 54,000,000 | $ | 90,000,000 | $ | 58,500,000 | $ | 157,500,000 | $ | 180,000,000 | ||||||||||
| J.P. Morgan Securities LLC |
$ | 54,000,000 | $ | 90,000,000 | $ | 58,500,000 | $ | 157,500,000 | $ | 180,000,000 | ||||||||||
| Barclays Capital Inc. |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| BMO Capital Markets Corp. |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| BNY Mellon Capital Markets, LLC |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| ING Financial Markets LLC |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| UBS Securities LLC |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| U.S. Bancorp Investments, Inc. |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| Wells Fargo Securities, LLC |
$ | 24,000,000 | $ | 40,000,000 | $ | 26,000,000 | $ | 70,000,000 | $ | 80,000,000 | ||||||||||
| Deutsche Bank Securities Inc. |
$ | 16,800,000 | $ | 28,000,000 | $ | 18,200,000 | $ | 49,000,000 | $ | 56,000,000 | ||||||||||
| BofA Securities, Inc. |
$ | 15,960,000 | $ | 26,600,000 | $ | 17,290,000 | $ | 46,550,000 | $ | 53,200,000 | ||||||||||
| Loop Capital Markets LLC |
$ | 15,120,000 | $ | 25,200,000 | $ | 16,380,000 | $ | 44,100,000 | $ | 50,400,000 | ||||||||||
| Aon Securities LLC |
$ | 12,180,000 | $ | 20,300,000 | $ | 13,195,000 | $ | 35,525,000 | $ | 40,600,000 | ||||||||||
| ANZ Securities, Inc. |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| Goldman Sachs & Co. LLC |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| nabSecurities, LLC |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| PNC Capital Markets LLC |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| Scotia Capital (USA) Inc. |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| Standard Chartered Bank |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| UniCredit Capital Markets LLC |
$ | 11,340,000 | $ | 18,900,000 | $ | 12,285,000 | $ | 33,075,000 | $ | 37,800,000 | ||||||||||
| R. Seelaus & Co., LLC |
$ | 3,780,000 | $ | 6,300,000 | $ | 4,095,000 | $ | 11,025,000 | $ | 12,600,000 | ||||||||||
| Siebert Williams Shank & Co., LLC |
$ | 3,780,000 | $ | 6,300,000 | $ | 4,095,000 | $ | 11,025,000 | $ | 12,600,000 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
| Total: |
$ | 600,000,000 | $ | 1,000,000,000 | $ | 650,000,000 | $ | 1,750,000,000 | $ | 2,000,000,000 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
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Exhibit A-1
EXHIBIT B
| 1. | General Use Free Writing Prospectus (included in the General Disclosure Package) |
“General Use Issuer Free Writing Prospectus” means:
The pricing term sheet, dated February 28, 2024, a copy of which is attached hereto as Annex B-1.
| 2. | Other Information Included in the General Disclosure Package |
The following information is also included in the General Disclosure Package:
None
Exhibit B-1
ANNEX B-1
Filed pursuant to Rule 433
Relating to Preliminary Prospectus Supplement dated February 27, 2024 to
Prospectus dated June 22, 2023
Registration Statement Nos. 333-272818, 333-272818-01, 333-272818-02, 333-272818-03 and 333-272818-04
Aon North America, Inc.
$600,000,000 5.125% SENIOR NOTES DUE 2027 (the “2027 Notes”)
$1,000,000,000 5.150% SENIOR NOTES DUE 2029 (the “2029 Notes”)
$650,000,000 5.300% SENIOR NOTES DUE 2031 (the “2031 Notes”)
$1,750,000,000 5.450% SENIOR NOTES DUE 2034 (the “2034 Notes”)
$2,000,000,000 5.750% SENIOR NOTES DUE 2054 (the “2054 Notes”)
(together, the “Notes”)
PRICING TERM SHEET
Terms Applicable to the Notes
| Issuer: | Aon North America, Inc. | |
| Guarantors: | Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited | |
| Offering Format: | SEC Registered | |
| Expected Ratings*: | Moody’s Investors Service: *** Standard & Poor’s: *** Fitch: *** | |
| Ranking: | Senior Unsecured | |
| Trade Date: | February 28, 2024 | |
| Settlement Date (T+2)**: | March 1, 2024 | |
| Denominations: | $2,000 and multiples of $1,000 | |
Exhibit B-1-1
| Joint Book-Running Managers: | Citigroup Global Markets Inc. Morgan Stanley & Co. LLC HSBC Securities (USA) Inc. J.P. Morgan Securities LLC | |
| Barclays Capital Inc. BMO Capital Markets Corp. BNY Mellon Capital Markets, LLC ING Financial Markets LLC UBS Securities LLC U.S. Bancorp Investments, Inc. Wells Fargo Securities, LLC | ||
| Senior Co-Managers: | Deutsche Bank Securities Inc. BofA Securities, Inc. | |
| Co-Managers: | Loop Capital Markets LLC Aon Securities LLC ANZ Securities, Inc. Goldman Sachs & Co. LLC nabSecurities, LLC PNC Capital Markets LLC Scotia Capital (USA) Inc. Standard Chartered Bank UniCredit Capital Markets LLC R. Seelaus & Co., LLC Siebert Williams Shank & Co., LLC | |
| Principal Amount: | $600,000,000 for the 2027 Notes $1,000,000,000 for the 2029 Notes $650,000,000 for the 2031 Notes $1,750,000,000 for the 2034 Notes $2,000,000,000 for the 2054 Notes | |
| Maturity Date: | March 1, 2027 for the 2027 Notes March 1, 2029 for the 2029 Notes March 1, 2031 for the 2031 Notes March 1, 2034 for the 2034 Notes March 1, 2054 for the 2054 Notes | |
| Reference Treasury: | UST 4.125% due February 15, 2027 for the 2027 Notes UST 4.000% due January 31, 2029 for the 2029 Notes UST 4.000% due January 31, 2031 for the 2031 Notes UST 4.000% due February 15, 2034 for the 2034 Notes UST 4.750% due November 15, 2053 for the 2054 Notes | |
Exhibit B-1-2
| Reference Treasury Price and Yield: | 99-03 3/4; 4.446% for the 2027 Notes 98-24 1/4; 4.282% for the 2029 Notes 98-08; 4.295% for the 2031 Notes 97-26+; 4.270% for the 2034 Notes 105-28+; 4.393% for the 2054 Notes | |
| Reoffer Spread to Reference Treasury: | +75 bps for the 2027 Notes +90 bps for the 2029 Notes +105 bps for the 2031 Notes +120 bps for the 2034 Notes +140 bps for the 2054 Notes | |
| Re-offer Yield: | 5.196% for the 2027 Notes 5.182% for the 2029 Notes 5.345% for the 2031 Notes 5.470% for the 2034 Notes 5.793% for the 2054 Notes | |
| Coupon: | 5.125% for the 2027 Notes 5.150% for the 2029 Notes 5.300% for the 2031 Notes 5.450% for the 2034 Notes 5.750% for the 2054 Notes | |
| Interest Payment Dates: | Semi-annually in arrears on March 1 and September 1, beginning on September 1, 2024 for the 2027 Notes
Semi-annually in arrears on March 1 and September 1, beginning on September 1, 2024 for the 2029 Notes
Semi-annually in arrears on March 1 and September 1, beginning on September 1, 2024 for the 2031 Notes
Semi-annually in arrears on March 1 and September 1, beginning on September 1, 2024 for the 2034 Notes
Semi-annually in arrears on March 1 and September 1, beginning on September 1, 2024 for the 2054 Notes | |
| Price to Public: | 99.805% for the 2027 Notes 99.861% for the 2029 Notes 99.740% for the 2031 Notes 99.848% for the 2034 Notes 99.392% for the 2054 Notes | |
| Proceeds to Issuer (before deducting our offering expenses and underwriting discounts): | $598,830,000 for the 2027 Notes $998,610,000 for the 2029 Notes $648,310,000 for the 2031 Notes $1,747,340,000 for the 2034 Notes $1,987,840,000 for the 2054 Notes $5,980,930,000 for the Notes | |
Exhibit B-1-3
| CUSIP / ISIN: | 03740MAA8 / US03740MAA80 for the 2027 Notes 03740MAB6 / US03740MAB63 for the 2029 Notes 03740MAC4 / US03740MAC47 for the 2031 Notes 03740MAD2 / US03740MAD20 for the 2034 Notes 03740MAF7 / US03740MAF77 for the 2054 Notes | |
| Optional Redemption: | Prior to February 1, 2027 (one month prior to the 2027 Notes maturity date) (the “2027 Par Call Date”), prior to February 1, 2029 (one month prior to the 2029 Notes maturity date) (the “2029 Par Call Date”), prior to January 1, 2031 (two months prior to the 2031 Notes maturity date) (the “2031 Par Call Date”), prior to December 1, 2033 (three months prior to the 2034 Notes maturity date) (the “2034 Par Call Date”) and prior to September 1, 2053 (six months prior to the 2054 Notes maturity date) (the “2054 Par Call Date” and each of the 2027 Par Call Date, the 2029 Par Call Date, the 2031 Par Call Date, the 2034 Par Call Date and the 2054 Par Call Date, a “Par Call Date”), the Issuer may redeem the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes and/or the 2054 Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of the principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes of such series being redeemed discounted to the redemption date (assuming the Notes of such series being redeemed matured on the applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined under “Description of the Securities—Optional Redemption”), plus 15 basis points (0.150%), in the case of the 2027 Notes, plus 15 basis points (0.150%), in the case of the 2029 Notes, plus 20 basis points (0.200%), in the case of the 2031 Notes, plus 20 basis points (0.200%), in the case of the 2034 Notes and plus 25 basis points (0.250%), in the case of the 2054 Notes, less (b) accrued and unpaid interest to the date of redemption, and
(2) 100% of the principal amount of the Notes of such series being redeemed,
plus, in each case, accrued and unpaid interest on the principal amount of the Notes of such series being redeemed to the redemption date.
On or after the applicable Par Call Date, the Issuer may redeem the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes and/or the 2054 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes of such series being redeemed plus accrued and unpaid interest thereon to the redemption date.
See “Description of the Securities—Optional Redemption” and “Description of the Securities—Optional Tax Redemption” in the preliminary prospectus supplement for more information. | |
Exhibit B-1-4
| Special Mandatory Redemption (applicable only to the 2027 Notes, the 2029 Notes, the 2031 Notes, and the 2034 Notes): | Under certain conditions described in the preliminary prospectus supplement, the issuer will be required to redeem all of the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes at a redemption price equal to 101% of the aggregate principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the redemption date. | |
| Conflicts of Interest: | Aon Securities LLC is an indirect wholly owned subsidiary of Aon North America, Inc. This offering is subject to, and will be conducted in compliance with, the requirements of Rule 5121 of the Financial Industry Regulatory Authority, Inc. (“FINRA”) regarding a FINRA member firm distributing the securities of an affiliate. | |
| * | Note: An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The rating of the Notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency. |
| ** | Note: The information in this Pricing Term Sheet supplements the Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in the Preliminary Prospectus Supplement. The T+2 settlement cycle specified in this Pricing Term Sheet supersedes the extended settlement language included in the Preliminary Prospectus Supplement. |
The issuer and the guarantors have filed a registration statement, including a prospectus, with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer, the guarantors and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the Joint Book-Running Managers in the offering will arrange to send you the prospectus if you request it by contacting Citigroup Global Markets Inc. toll-free at 1-800-831-9146, Morgan Stanley & Co. LLC at 1-866-718-1649, HSBC Securities (USA) Inc. toll-free at 1-866-811-8049, or J.P. Morgan Securities LLC (collect) at 1-212-834-4533.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded (other than any statement relating to the identity of the legal entity authorizing or sending this communication in a non-U.S. jurisdiction). Such disclaimers or other notices were automatically generated as a result of this communication having been sent via Bloomberg or another e-mail system.
Exhibit B-1-5
EXHIBIT C
Significant Subsidiaries
| Significant subsidiary: | Jurisdiction of incorporation: | |
| Aon Global Holdings plc | United Kingdom | |
| Aon Corporation | Delaware | |
| Aon Global Limited | United Kingdom | |
| Randolph Finance Unlimited Company | Ireland | |
| Aon Group, Inc. | Maryland | |
| Aon Group International N.V. | Netherlands | |
| Aon Holdings International B.V. | Netherlands | |
| Aon Holdings B.V. | Netherlands | |
| Aon Southern Europe B.V. | Netherlands | |
| Aon UK Group Limited | United Kingdom | |
| Aon UK Holdings Intermediaries Limited | United Kingdom | |
| Aon UK Holdings Limited | United Kingdom | |
| Aon UK Limited | United Kingdom | |
| Aon Risk Services Companies, Inc. | Maryland | |
| Aon Risk Services, Inc. of Maryland | Maryland | |
| Aon Consulting, Inc. | New Jersey | |
| Aon North America, Inc. | Delaware | |
| Aon Global Holdings Intermediaries Limited | United Kingdom | |
Exhibit C-1
Exhibit 4.1
EXECUTION VERSION
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 March 1, 2024
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. |
Table of Contents
Page
| ARTICLE ONE | ||||||
| Definitions | ||||||
| SECTION 1.01. |
Definitions | 2 | ||||
| ARTICLE TWO | ||||||
| Issue, Execution, Registration and Exchange of Securities | ||||||
| SECTION 2.01. |
Amount Unlimited; Issuable in Series | 10 | ||||
| SECTION 2.02. |
Form of Trustee’s Certificate of Authentication | 13 | ||||
| SECTION 2.03. |
Form, Execution, Authentication, Delivery and Dating of Securities | 13 | ||||
| SECTION 2.04. |
Currency; Denominations; Regular Record Date | 16 | ||||
| SECTION 2.05. |
Exchange and Registration of Transfer of Securities | 16 | ||||
| SECTION 2.06. |
Temporary Securities | 18 | ||||
| SECTION 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 18 | ||||
| SECTION 2.08. |
Securities in Global Form | 19 | ||||
| SECTION 2.09. |
Cancellation | 20 | ||||
| SECTION 2.10. |
Computation of Interest | 20 | ||||
| SECTION 2.11. |
CUSIP Numbers | 20 | ||||
| ARTICLE THREE | ||||||
| Redemption of Securities | ||||||
| SECTION 3.01. |
Redemption of Securities; Applicability of Article | 20 | ||||
| SECTION 3.02. |
Tax Redemption | 20 | ||||
| SECTION 3.03. |
Notice of Redemption; Selection of Securities | 21 | ||||
| SECTION 3.04. |
Payment of Securities Called for Redemption | 23 | ||||
| ARTICLE FOUR | ||||||
| Particular Covenants of the Company and/or any Co-Issuer | ||||||
| SECTION 4.01. |
Payment of Principal, Premium and Interest | 23 | ||||
| SECTION 4.02. |
Offices for Notices and Payments, etc. | 24 | ||||
| SECTION 4.03. |
Provisions as to Paying Agent | 24 | ||||
| SECTION 4.04. |
Statement by Officers as to Default | 26 | ||||
| SECTION 4.05. |
Payment of Additional Amounts | 26 | ||||
i
Table of Contents
(continued)
Page
| ARTICLE FIVE | ||||||
| Securityholder Lists and Reports by | ||||||
| the Company And The Trustee | ||||||
| SECTION 5.01. |
Securityholder Lists | 28 | ||||
| SECTION 5.02. |
Preservation and Disclosure of Lists | 28 | ||||
| SECTION 5.03. |
Reports by the Company | 30 | ||||
| SECTION 5.04. |
Reports by the Trustee | 30 | ||||
| ARTICLE SIX | ||||||
| Remedies on Default | ||||||
| SECTION 6.01. |
Events of Default | 31 | ||||
| SECTION 6.02. |
Payment of Securities on Default; Suit Therefor | 34 | ||||
| SECTION 6.03. |
Application of Moneys Collected by Trustee | 36 | ||||
| SECTION 6.04. |
Proceedings by Securityholders | 36 | ||||
| SECTION 6.05. |
Remedies Cumulative and Continuing | 37 | ||||
| SECTION 6.06. |
Direction of Proceedings | 37 | ||||
| SECTION 6.07. |
Notice of Defaults | 38 | ||||
| SECTION 6.08. |
Undertaking to Pay Costs | 38 | ||||
| SECTION 6.09. |
Waiver of Past Defaults | 38 | ||||
| ARTICLE SEVEN | ||||||
| Concerning the Trustee | ||||||
| SECTION 7.01. |
Duties and Responsibilities of Trustee | 39 | ||||
| SECTION 7.02. |
Reliance on Documents, Opinions, etc. | 40 | ||||
| SECTION 7.03. |
No Responsibility for Recitals, etc. | 42 | ||||
| SECTION 7.04. |
Ownership of Securities | 42 | ||||
| SECTION 7.05. |
Moneys to Be Held in Trust | 42 | ||||
| SECTION 7.06. |
Compensation, Indemnification and Expenses of Trustee | 42 | ||||
| SECTION 7.07. |
Officers’ Certificate as Evidence | 43 | ||||
| SECTION 7.08. |
Conflicting Interest of Trustee | 43 | ||||
| SECTION 7.09. |
Eligibility of Trustee | 44 | ||||
| SECTION 7.10. |
Resignation or Removal of Trustee | 44 | ||||
| SECTION 7.11. |
Acceptance by Successor Trustee | 46 | ||||
| SECTION 7.12. |
Successor by Merger, etc. | 47 | ||||
| SECTION 7.13. |
Limitations on Rights of Trustee as Creditor | 47 | ||||
ii
Table of Contents
(continued)
Page
| ARTICLE EIGHT | ||||||
| Concerning the Securityholders | ||||||
| SECTION 8.01. |
Action by Securityholders | 47 | ||||
| SECTION 8.02. |
Proof of Ownership | 48 | ||||
| SECTION 8.03. |
Who Are Deemed Absolute Owners | 48 | ||||
| SECTION 8.04. |
Company-Owned Securities Disregarded | 48 | ||||
| SECTION 8.05. |
Revocation of Consents; Future Securityholders Bound | 49 | ||||
| ARTICLE NINE | ||||||
| Securityholders’ Meetings | ||||||
| SECTION 9.01. |
Purposes of Meetings | 49 | ||||
| SECTION 9.02. |
Call of Meetings by Trustee | 49 | ||||
| SECTION 9.03. |
Call of Meetings by Company or Securityholders | 50 | ||||
| SECTION 9.04. |
Qualification for Voting | 50 | ||||
| SECTION 9.05. |
Regulations | 50 | ||||
| SECTION 9.06. |
Voting | 51 | ||||
| ARTICLE TEN | ||||||
| Supplemental Indentures | ||||||
| SECTION 10.01. |
Supplemental Indentures without Consent of Securityholders | 51 | ||||
| SECTION 10.02. |
Supplemental Indentures with Consent of Securityholders | 53 | ||||
| SECTION 10.03. |
Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 54 | ||||
| SECTION 10.04. |
Notation on Securities | 54 | ||||
| ARTICLE ELEVEN | ||||||
| Consolidation, Merger, Conveyance, Transfer or Lease | ||||||
| SECTION 11.01. |
Company, Co-Issuer(s) and Guarantors May Consolidate, etc., Only on Certain Terms | 55 | ||||
| SECTION 11.02. |
Successor Person Substituted | 56 | ||||
iii
Table of Contents
(continued)
Page
| ARTICLE TWELVE | ||||||
| Satisfaction and Discharge of Indenture; Unclaimed Moneys | ||||||
| SECTION 12.01. |
Discharge of Indenture | 56 | ||||
| SECTION 12.02. |
Deposited Moneys to Be Held in Trust by Trustee | 58 | ||||
| SECTION 12.03. |
Paying Agent to Repay Moneys Held | 58 | ||||
| SECTION 12.04. |
Return of Unclaimed Moneys | 58 | ||||
| ARTICLE THIRTEEN | ||||||
| Defeasance and Covenant Defeasance | ||||||
| SECTION 13.01. |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance | 59 | ||||
| SECTION 13.02. |
Defeasance and Discharge | 59 | ||||
| SECTION 13.03. |
Covenant Defeasance | 60 | ||||
| SECTION 13.04. |
Conditions to Defeasance or Covenant Defeasance | 60 | ||||
| SECTION 13.05. |
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 63 | ||||
| ARTICLE FOURTEEN | ||||||
| Immunity of Incorporators, Stockholders, | ||||||
| Officers and Directors | ||||||
| SECTION 14.01. |
Indenture and Securities Solely Corporate Obligations | 63 | ||||
| ARTICLE FIFTEEN | ||||||
| GUARANTEES | ||||||
| SECTION 15.01. |
Guarantee | 64 | ||||
| SECTION 15.02. |
Subrogation | 65 | ||||
| SECTION 15.03. |
Notation of Guarantee | 65 | ||||
| SECTION 15.04. |
Irish Guarantee Limitation | 66 | ||||
iv
Table of Contents
(continued)
Page
| ARTICLE SIXTEEN | ||||||
| Miscellaneous Provisions | ||||||
| SECTION 16.01. |
Benefits of Indenture Restricted to Parties and Securityholders | 66 | ||||
| SECTION 16.02. |
Provisions Binding on Successors | 66 | ||||
| SECTION 16.03. |
Addresses for Notices, etc. | 66 | ||||
| SECTION 16.04. |
Evidence of Compliance with Conditions Precedent | 67 | ||||
| SECTION 16.05. |
Legal Holidays | 68 | ||||
| SECTION 16.06. |
Trust Indenture Act to Control | 68 | ||||
| SECTION 16.07. |
Execution in Counterparts | 68 | ||||
| SECTION 16.08. |
New York Contract | 68 | ||||
| SECTION 16.09. |
Consent to Service | 68 | ||||
| SECTION 16.10. |
Separability | 69 | ||||
| SECTION 16.11. |
Assignment | 69 | ||||
| SECTION 16.12. |
Waiver of Jury Trial; Submission to Jurisdiction | 69 | ||||
| SECTION 16.13. |
Force Majeure | 69 | ||||
| SECTION 16.14. |
Judgment Currency | 70 | ||||
| SECTION 16.15. |
Tax Withholding | 70 | ||||
| SECTION 16.16. |
Electronic Communications | 71 | ||||
| SECTION 16.17. |
Sanctions | 72 | ||||
v
THIS INDENTURE, dated as of March 1, 2024, 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 plc” or, with respect to any series of Securities for which Aon plc 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 “AGL” or, with respect to any series of Securities for which AGL 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 Corporation” or, with respect to any series of Securities for which Aon Corporation 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 plc, Aon Corporation and AGL, 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 plc, Aon Corporation, AGL 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, AGL, Aon Corporation, AGH and Aon plc 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 plc, Aon Corporation, AGL and AGH has in all respects been duly authorized, and each of the Company, Aon plc, Aon Corporation, AGL 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, AGL, Aon Corporation, AGH and Aon plc 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:
1
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; |
| (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.
2
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.
3
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 plc, by any director of Aon plc, or, for either of AGH or AGL, by any director or company secretary of AGH or AGL, 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 240 Greenwich Street, Floor 7E, New York, New York 10286, Attention: Corporate Trust Administration with a copy to 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606, 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).
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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.
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.
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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;
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(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.
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.
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RESPONSIBLE OFFICER
The term “Responsible Officer”, when used with respect to the Trustee, shall mean any officer of the Trustee in Corporate Trust Administration with direct responsibility for the administration of this Indenture, 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 plc 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 plc 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.
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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;
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(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;
(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);
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(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 plc, by any director of Aon plc or, for AGH, by any director or company secretary of AGH, 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.
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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 plc, by any director of Aon plc or, for either of AGH or AGL, by any director or company secretary of AGH or AGL, 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
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(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 is 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 Issuers 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.
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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 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.
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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 provided in this Article Two. 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
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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.
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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
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(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; or
(3) 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.
(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
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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, any 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.
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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 or the City of New York 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 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606 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.
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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:
(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;
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(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.
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(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.
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(b) In case three or more Holders of Securities of a series (hereinafter referred to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants’ desire to communicate with other Holders of Securities of such series or with Holders of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five (5) Business Days after the receipt of such application, at its election, either
(1) afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or
(2) inform such applicants as to the approximate number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five (5) days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holder with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the same, agrees with the Company and the 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).
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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
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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; or
(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.
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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
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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.
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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
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
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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
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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.
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;
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(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 plc, any director of Aon plc or, for either of AGH or AGL, by any director or company secretary of AGH or AGL, 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
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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 plc, any director of Aon plc or, for either of AGH or AGL, by any director or company secretary of AGH or AGL, 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;
(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;
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(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 plc, any director of Aon plc or, for either of AGH or AGL, by any director or company secretary of AGH or AGL, 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
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will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct. The Company and, with respect to any series of Securities 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.
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(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, (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.
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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.
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-issued 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 being 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.
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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, (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.
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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 has received written notice to be 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.
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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
(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,
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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 percent (10%) 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 such Issuer (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;
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(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 a Board Resolution of such Issuer (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, thereon 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.
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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.
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 (if applicable) and Officers’ Certificates of the Guarantors (if applicable) 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.
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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 or Aon Corporation, 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, the Co-Issuer(s) and/or the Guarantor(s), as applicable, delivered to the Trustee an Officers’ Certificate of the Company, such Co-Issuer or such Guarantor, as the case may be, and, in any 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
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(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 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
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(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
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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.
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,
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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, (ii) Governmental Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date
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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.
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(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 obligation, 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 any 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.
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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.
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.
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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
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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 plc, Aon Corporation, AGL 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 plc, Aon Corporation, AGL 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, AGL, Aon Corporation, Aon plc 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, 240 Greenwich Street, Floor 7E, New York, New York 10286, Attention: Corporate Trust Administration with a copy to 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606, Attention: Corporate Trust Administration, or at any other address previously furnished in writing to the Company by the Trustee.
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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 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, or such governmental official or officers or such other Person or Persons, 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 or 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.
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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
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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, 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.
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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 | /s/ Robert Lee | |||
| Name: | Robert Lee | |||
| Title: | Vice President | |||
| Aon plc, a public limited company duly incorporated and existing under the laws of Ireland, | ||||
| By | /s/ Paul Hagy | |||
| Name: | Paul Hagy | |||
| Title: | Treasurer | |||
| Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware, | ||||
| By | /s/ Robert Lee | |||
| Name: | Robert Lee | |||
| Title: | Vice President | |||
| 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 | |||
[Signature Page to the Indenture]
| 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 | |||
| The Bank of New York Mellon Trust Company, as Trustee, | ||||
| by | /s/ Ann M. Dolezal | |||
| Name: | Ann M. Dolezal | |||
| Title: | Vice President | |||
[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: | ||
Exhibit 4.2
EXECUTION VERSION
AON NORTH AMERICA, INC.
FIRST INDENTURE SUPPLEMENT
DATED AS OF MARCH 1, 2024
TO
THE INDENTURE
DATED AS OF MARCH 1, 2024
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
TRUSTEE
DEBT SECURITIES
THIS FIRST INDENTURE SUPPLEMENT (the “First Indenture Supplement”), is dated as of March 1, 2024, among Aon North America, Inc., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), Aon plc, a public limited company duly organized and existing under the laws of Ireland (hereinafter sometimes called “Aon plc”), Aon Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called “Aon Corporation”), Aon Global Holdings plc, a public limited company duly organized and existing under the laws of England and Wales (hereinafter sometimes called “AGH”), Aon Global Limited, a private limited company duly organized and existing under the laws of England and Wales (hereinafter sometimes called “AGL” and, together with Aon plc, Aon Corporation and AGH, the “Guarantors” and each, a “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven of the Base Indenture (as defined below)), and is a supplemental indenture supplementing the Base Indenture.
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee executed and delivered an indenture, dated as of March 1, 2024 (the “Base Indenture” and, together with this First Indenture Supplement, the “Indenture”), to provide for the issuance from time to time for its lawful purposes debt securities (hereinafter called “Securities” or, in the singular, a “Security”) evidencing its unsecured indebtedness.
WHEREAS, Section 10.01 of the Base Indenture provides that a supplemental indenture may be entered into by the Company, Aon plc, Aon Corporation, AGH and AGL when authorized by or pursuant to a Board Resolution, and the Trustee without the consent of any Holders to make provisions to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03 of the Base Indenture.
WHEREAS, solely with respect to the application of such provisions to the Notes, the Company and the Guarantors, desire to (i) effect that the Company issues the Notes, (ii) effect such guarantee by each of Aon plc, Aon Corporation, AGH and AGL, (iii) establish the form and terms of the Notes without the consent of any Holders as permitted by Sections 2.01 and 2.03 of the Base Indenture and (iv) execute a supplemental indenture to the Base Indenture pursuant to Section 10.01 thereof to effect the foregoing.
WHEREAS, each of the Company, Aon plc, Aon Corporation, AGH and AGL represents that all acts and things necessary to present a valid and binding supplemental indenture have been done and performed, and the execution of this First Indenture Supplement as a supplemental indenture to the Base Indenture by each of the Company, Aon plc, Aon Corporation, AGH and AGL has in all respects been duly authorized, and each of the Company, Aon plc, Aon Corporation, AGH and AGL, in the exercise of legal rights and power in it vested, is executing this First Indenture Supplement.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time 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 in the respective form of Note attached as Exhibit A hereto 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 Base Indenture shall have the meanings assigned to them in the Base Indenture. For all purposes of this First Indenture Supplement only:
“2027 Notes” means a new series of Securities to be issued by the Company to be known as $600,000,000 aggregate principal amount of 5.125% senior notes due 2027. For purposes of the Indenture, the 2027 Notes shall constitute a single series of Securities under the Indenture and shall vote together to the extent so provided therein. For all purposes of this First Indenture Supplement, the term “2027 Notes” shall include the 2027 Notes initially issued on the Closing Date and any other 2027 Notes issued after the Closing Date.
“2029 Notes” means a new series of Securities to be issued by the Company to be known as $1,000,000,000 aggregate principal amount of 5.150% senior notes due 2029. For purposes of the Indenture, the 2029 Notes shall constitute a single series of Securities under the Indenture and shall vote together to the extent so provided therein. For all purposes of this First Indenture Supplement, the term “2029 Notes” shall include the 2029 Notes initially issued on the Closing Date and any other 2029 Notes issued after the Closing Date.
“2031 Notes” means a new series of Securities to be issued by the Company to be known as $650,000,000 aggregate principal amount of 5.300% senior notes due 2031. For purposes of the Indenture, the 2031 Notes shall constitute a single series of Securities under the Indenture and shall vote together to the extent so provided therein. For all purposes of this First Indenture Supplement, the term “2031 Notes” shall include the 2031 Notes initially issued on the Closing Date and any other 2031 Notes issued after the Closing Date.
“2034 Notes” means a new series of Securities to be issued by the Company to be known as $1,750,000,000 aggregate principal amount of 5.450% senior notes due 2034. For purposes of the Indenture, the 2034 Notes shall constitute a single series of Securities under the Indenture and shall vote together to the extent so provided therein. For all purposes of this First Indenture Supplement, the term “2034 Notes” shall include the 2034 Notes initially issued on the Closing Date and any other 2034 Notes issued after the Closing Date.
“2054 Notes” means a new series of Securities to be issued by the Company to be known as $2,000,000,000 aggregate principal amount of 5.750% senior notes due 2054. For purposes of the Indenture, the 2054 Notes shall constitute a single series of Securities under the Indenture and shall vote together to the extent so provided therein. For all purposes of this First Indenture Supplement, the term “2054 Notes” shall include the 2054 Notes initially issued on the Closing Date and any other 2054 Notes issued after the Closing Date.
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“Acquirer” means Randolph Acquisition Corp., a Delaware corporation and an indirect, wholly owned subsidiary of Aon plc.
“Base Indenture” has the meaning set forth in the recitals hereof.
“Closing Date” means March 1, 2024.
“Global Securities Legend” means the legend set forth on the form of Note attached as Exhibit A hereto.
“Guarantors” has the meaning set forth in the recitals hereof.
“Indenture” has the meaning set forth in the recitals hereof.
“Interest Payment Date” means, as applicable, (i) a 2027 Notes Interest Payment Date, (ii) a 2029 Notes Interest Payment Date, (iii) a 2031 Notes Interest Payment Date, (iv) a 2034 Notes Interest Payment Date and (v) a 2054 Notes Interest Payment Date (in each case, as defined in Section 2.02(d)).
“Merger Agreement” means the agreement and plan of merger, dated as of December 19, 2023, among Aon plc, the Acquirer, Randolph Merger Sub LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of the Acquirer, NFP and NFP Parent Co, LLC, a Delaware limited liability company.
“NFP” means NFP Intermediate Holdings A Corp., a Delaware corporation.
“NFP Acquisition” means the acquisition by the Acquirer of the issued and outstanding equity interests of NFP pursuant to the Merger Agreement.
“Notes” means, collectively, the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes and the 2054 Notes, in each case substantially in the form attached hereto as Exhibit A, fully and unconditionally guaranteed as to payment of principal and interest by Aon plc, Aon Corporation, AGH and AGL, each designated in Section 2.01 hereof and authenticated and delivered under the Indenture.
“Par Call Date” means (i) February 1, 2027 (the date that is one month prior to the Stated Maturity for the 2027 Notes) for the 2027 Notes, (ii) February 1, 2029 (the date that is one month prior to the Stated Maturity for the 2029 Notes) for the 2029 Notes, (iii) January 1, 2031 (the date that is two months prior to the Stated Maturity for the 2031 Notes) for the 2031 Notes, (iv) December 1, 2033 (the date that is three months prior to the Stated Maturity for the 2034 Notes) for the 2034 Notes and (v) September 1, 2053 (the date that is six months prior to the Stated Maturity for the 2054 Notes) for the 2054 Notes.
“Regular Record Date” means, as applicable, (i) a 2027 Regular Record Date, (ii) a 2029 Regular Record Date, (iii) a 2031 Regular Record Date, (iv) a 2034 Regular Record Date and (v) a 2054 Regular Record Date (in each case, as defined in Section 2.02(d)).
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“Stated Maturity” has the meaning set forth in Section 2.02 hereof.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the applicable Par Call Date and one with a maturity date following the applicable Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
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“Trustee” has the meaning set forth in the preamble hereof.
The parties hereto acknowledge that certain terms are defined in both the Base Indenture and in this First Indenture Supplement. The parties hereto hereby agree that, unless otherwise expressly stated or the context otherwise requires, any term which is defined in either the Base Indenture or this First Indenture Supplement, when used with respect to or in the respective certificates evidencing the Notes, shall have the meaning set forth in this First Indenture Supplement.
ARTICLE II
Terms of the Notes
SECTION 2.01. Establishment of the Notes.
(a) There is hereby authorized and established (i) a series of Securities designated the 5.125% senior notes due 2027, limited in aggregate principal amount to $600,000,000, (ii) a series of Securities designated the 5.150% senior notes due 2029, limited in aggregate principal amount to $1,000,000,000, (iii) a series of Securities designated the 5.300% senior notes due 2031, limited in aggregate principal amount to $650,000,000, (iv) a series of Securities designated the 5.450% senior notes due 2034, limited in aggregate principal amount to $1,750,000,000 and (v) a series of Securities designated the 5.750% senior notes due 2054, limited in aggregate principal amount to $2,000,000,000 (provided that the foregoing limitations on the aggregate principal amount of Notes of each series shall not apply to Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of such series pursuant to Section 2.05, 2.06, 2.07, 3.03, 6.01 or 10.04 of the Indenture); provided that the Company may, from time to time, without notice to or consent of Holders or beneficial owners of the Outstanding Notes of any series, increase the aggregate principal amount of Outstanding Notes of any series pursuant to Section 2.01 of the Indenture in compliance with the procedures set forth in the Indenture, including Sections 2.03 and 2.04 thereof, by issuing Additional Securities having the same ranking, interest rate, maturity and other terms (except for the issue date, public offering price and, in some cases, the first Interest Payment Date and the date from which interest shall begin to accrue) as the Notes of such series then Outstanding; provided, further, that any such Additional Securities will constitute part of the same series as the Notes of such series issued on the Closing Date; and provided, further, that if such Additional Securities are not fungible for U.S. federal income tax purposes with the Notes of such series issued on the Closing Date, then such Additional Securities will have a separate CUSIP number.
(b) The form and terms of each series of Notes have been established pursuant to authority duly granted by the Board Resolutions of the Company, adopted on February 23, 2024 (the “Board Resolutions”), in accordance with Section 2.03 of the Indenture, and the Corporate Secretary of the Company has certified that the Board Resolutions have been duly adopted by the Board of Directors of the Company and are in full force and effect on the date of such certification.
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SECTION 2.02. Terms of the Notes. The following terms relate to the applicable series of Notes:
(a) The 2027 Notes hereby established are a series of Securities having the title “5.125% senior notes due 2027 with full and unconditional guarantees as to payment of principal and interest by Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited,” the terms and provisions of which are as provided for in Section 2.01 of the Indenture with the further terms and provisions as set forth in the form of the Notes attached hereto as Exhibit A. The 2029 Notes hereby established are a series of Securities having the title “5.150% senior notes due 2029 with full and unconditional guarantees as to payment of principal and interest by Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited,” the terms and provisions of which are as provided for in Section 2.01 of the Indenture with the further terms and provisions as set forth in the form of the Notes attached hereto as Exhibit A. The 2031 Notes hereby established are a series of Securities having the title “5.300% senior notes due 2031 with full and unconditional guarantees as to payment of principal and interest by Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited,” the terms and provisions of which are as provided for in Section 2.01 of the Indenture with the further terms and provisions as set forth in the form of the Notes attached hereto as Exhibit A. The 2034 Notes hereby established are a series of Securities having the title “5.450% senior notes due 2034 with full and unconditional guarantees as to payment of principal and interest by Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited,” the terms and provisions of which are as provided for in Section 2.01 of the Indenture with the further terms and provisions as set forth in the form of the Notes attached hereto as Exhibit A. The 2054 Notes hereby established are a series of Securities having the title “5.750% senior notes due 2054 with full and unconditional guarantees as to payment of principal and interest by Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited,” the terms and provisions of which are as provided for in Section 2.01 of the Indenture with the further terms and provisions as set forth in the form of the Notes attached hereto as Exhibit A.
(b) The initial aggregate principal amount of the 2027 Notes that may be issued, authenticated and delivered under the Indenture (except for 2027 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other 2027 Notes pursuant to Section 2.05, 2.06, 2.07, 3.03, 6.01 or 10.04 of the Indenture or 2027 Notes authenticated and delivered as Additional Securities pursuant to Section 2.01 of the Base Indenture and Section 2.01 of this First Indenture Supplement) is $600,000,000. The initial aggregate principal amount of the 2029 Notes that may be issued, authenticated and delivered under the Indenture (except for 2029 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other 2029 Notes pursuant to Section 2.05, 2.06, 2.07, 3.03, 6.01 or 10.04 of the Indenture or 2029 Notes authenticated and delivered as Additional Securities pursuant to Section 2.01 of the Base Indenture and Section 2.01 of this First Indenture Supplement) is $1,000,000,000. The initial aggregate principal amount of the 2031 Notes that may be issued, authenticated and delivered under the Indenture (except for 2031 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other 2031 Notes pursuant to Section 2.05, 2.06, 2.07, 3.03, 6.01 or 10.04 of the Indenture or 2031 Notes authenticated and delivered as Additional Securities pursuant to Section 2.01 of the Base Indenture and Section 2.01 of this First Indenture Supplement) is $650,000,000. The initial aggregate principal amount of the 2034 Notes that may be issued, authenticated and delivered
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under the Indenture (except for 2034 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other 2034 Notes pursuant to Section 2.05, 2.06, 2.07, 3.03, 6.01 or 10.04 of the Indenture or 2034 Notes authenticated and delivered as Additional Securities pursuant to Section 2.01 of the Base Indenture and Section 2.01 of this First Indenture Supplement) is $1,750,000,000. The initial aggregate principal amount of the 2054 Notes that may be issued, authenticated and delivered under the Indenture (except for 2054 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other 2054 Notes pursuant to Section 2.05, 2.06, 2.07, 3.03, 6.01 or 10.04 of the Indenture or 2054 Notes authenticated and delivered as Additional Securities pursuant to Section 2.01 of the Base Indenture and Section 2.01 of this First Indenture Supplement) is $2,000,000,000.
(c) The Stated Maturity on which the principal of the 2027 Notes shall be due and payable (unless earlier redeemed) shall be March 1, 2027. The Stated Maturity on which the principal of the 2029 Notes shall be due and payable (unless earlier redeemed) shall be March 1, 2029. The Stated Maturity on which the principal of the 2031 Notes shall be due and payable (unless earlier redeemed) shall be March 1, 2031. The Stated Maturity on which the principal of the 2034 Notes shall be due and payable (unless earlier redeemed) shall be March 1, 2034. The Stated Maturity on which the principal of the 2054 Notes shall be due and payable (unless earlier redeemed) shall be March 1, 2054.
(d) The principal of the 2027 Notes shall bear interest at the rate of 5.125% per annum, which interest shall accrue from the most recent 2027 Interest Payment Date to which interest has been paid or duly provided for, and if no interest has been paid or duly provided for, from and including March 1, 2024, payable semi-annually in arrears on March 1 and September 1 (each, a “2027 Notes Interest Payment Date”) in each year, commencing September 1, 2024, to the Persons in whose names the 2027 Notes are registered at the close of business on the February 15 or August 15 immediately preceding such Interest Payment Dates (each, a “2027 Notes Regular Record Date”) regardless of whether such Regular Record Date is a Business Day. The principal of the 2029 Notes shall bear interest at the rate of 5.150% per annum, which interest shall accrue from the most recent 2029 Interest Payment Date to which interest has been paid or duly provided for, and if no interest has been paid or duly provided for, from and including March 1, 2024, payable semi-annually in arrears on March 1 and September 1 (each, a “2029 Notes Interest Payment Date”) in each year, commencing September 1, 2024, to the Persons in whose names the 2029 Notes are registered at the close of business on the February 15 or August 15 immediately preceding such Interest Payment Dates (each, a “2029 Notes Regular Record Date”) regardless of whether such Regular Record Date is a Business Day. The principal of the 2031 Notes shall bear interest at the rate of 5.300% per annum, which interest shall accrue from the most recent 2031 Interest Payment Date to which interest has been paid or duly provided for, and if no interest has been paid or duly provided for, from and including March 1, 2024, payable semi-annually in arrears on March 1 and September 1 (each, a “2031 Notes Interest Payment Date”) in each year, commencing September 1, 2024, to the Persons in whose names the 2031 Notes are registered at the close of business on the February 15 or August 15 immediately preceding such Interest Payment Dates (each, a “2031 Notes Regular Record Date”) regardless of whether such Regular Record Date is a Business Day. The principal of the 2034 Notes shall bear interest at the rate of 5.450% per annum, which interest shall accrue from the most recent 2034 Interest Payment Date to which interest has been paid or duly provided for, and if no interest has been paid or duly provided for, from and
7
including March 1, 2024, payable semi-annually in arrears on March 1 and September 1 (each, a “2034 Notes Interest Payment Date”) in each year, commencing September 1, 2024, to the Persons in whose names the 2034 Notes are registered at the close of business on the February 15 or August 15 immediately preceding such Interest Payment Dates (each, a “2034 Notes Regular Record Date”) regardless of whether such Regular Record Date is a Business Day. The principal of the 2054 Notes shall bear interest at the rate of 5.750% per annum, which interest shall accrue from the most recent 2054 Interest Payment Date to which interest has been paid or duly provided for, and if no interest has been paid or duly provided for, from and including March 1, 2024, payable semi-annually in arrears on March 1 and September 1 (each, a “2054 Notes Interest Payment Date”) in each year, commencing September 1, 2024, to the Persons in whose names the 2054 Notes are registered at the close of business on the February 15 or August 15 immediately preceding such Interest Payment Dates (each, a “2054 Notes Regular Record Date”) regardless of whether such Regular Record Date is a Business Day.
(e) Interest on each series of Notes shall be calculated on the basis of a 360-day year of twelve 30-day months. Except as described below for the first applicable Interest Payment Date, on each applicable Interest Payment Date, the Company will pay interest on each series of Notes for the period commencing on (and including) the immediately preceding applicable Interest Payment Date and ending on (and including) the day immediately preceding that Interest Payment Date. On the first applicable Interest Payment Date, the Company will pay interest for the period beginning on (and including) the issue date to (but excluding) the first applicable Interest Payment Date. If any Interest Payment Date falls on a day that is not a Business Day, the related interest payment shall be postponed to the next day that is a Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date. If the Stated Maturity or date of earlier redemption falls on a day that is not a Business Day, payment of principal and interest on such series of Notes will be made on the next succeeding day that is a Business Day, and no interest will accrue for the period from and after such Stated Maturity or date of earlier redemption. “Business Day” means any day, other than Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York.
(f) Prior to the applicable Par Call Date with respect to a series of Notes, the Company may redeem the Notes of such series, at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of the principal amount and rounded to three decimal places) equal to the greater of:
(i) (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed discounted to the redemption date (assuming the Notes being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus (i) 15 basis points (0.150%), in the case of the 2027 Notes, (ii) 15 basis points (0.150%), in the case of the 2029 Notes, (iii) 20 basis points (0.200%), in the case of the 2031 Notes, (iv) 20 basis points (0.200%), in the case of the 2034 Notes, and (v) 25 basis points (0.250%), in the case of the 2054 Notes, less, (b) interest accrued to the date of redemption, and
(ii) 100% of the principal amount of the Notes being redeemed;
8
plus, in each case, accrued and unpaid interest on the principal amount of the Notes being redeemed to the redemption date.
(g) On or after the applicable Par Call Date with respect to a series of Notes, the Company may redeem the Notes of such series, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest thereon to the redemption date.
Notwithstanding the foregoing, installments of interest on Notes being redeemed that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date according to such Notes and the Indenture.
(h) All payments of interest and principal, including payments made upon any redemption or repurchase of Notes, will be payable in U.S. Dollars.
(i) Each series of Notes is designated, pursuant to Section 2.01 of the Indenture, as being entitled to the benefits of the Guarantees of Aon plc, Aon Corporation, AGH and AGL, and Article Fifteen of the Base Indenture shall apply, and inure to the benefit of, each series of Notes.
(j) Each series of Notes is subject to redemption at the option of the Company as provided in the form of Note attached hereto as Exhibit A and in the Indenture.
(k) Each series of Notes shall have such other terms and provisions as are set forth in the form of Note attached hereto as Exhibit A (all of which are incorporated by reference in and made a part of this First Indenture Supplement as if set forth in full at this place).
(l) In the event that the NFP Acquisition is not consummated on or before the earliest of (i) the later of (x) December 19, 2024 and (y) such later date to which the outside date under the Merger Agreement as in effect on the issue date may be extended in accordance with the terms thereof, (ii) the valid termination of the Merger Agreement (as defined below) (other than in connection with the consummation of the NFP Acquisition) and (iii) the Company’s determination based on its reasonable judgment (in which case the Company will notify the Trustee in writing thereof) that the NFP Acquisition will not be consummated (any event described in clause (i), (ii) or (iii), a “Special Mandatory Redemption Event”), the Company will be required to redeem all of the outstanding 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes (but not the 2054 Notes) at a redemption price equal to 101% of the aggregate principal amount of such 2027 Notes, 2029 Notes, 2031 Notes and 2034 Notes, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (the “Special Mandatory Redemption Price”, and such redemption, a “Special Mandatory Redemption”). Upon the occurrence of a Special Mandatory Redemption Event, the Company will cause a notice of Special Mandatory Redemption to be transmitted to the Trustee and each holder of the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes at its registered address (or electronically delivered or otherwise transmitted in accordance with the depositary’s procedures) promptly, but in any event not later than five Business Days after the occurrence of such Special Mandatory Redemption Event, and will redeem the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes on the date specified in such notice (the date so specified, the “Special Mandatory Redemption
9
Date”). The Special Mandatory Redemption Date will be a date selected by the Company and set forth in the notice of Special Mandatory Redemption and will be no later than 30 days following the occurrence of the applicable Special Mandatory Redemption Event, but no earlier than the fifth Business Day following the day the notice of Special Mandatory Redemption is transmitted to holders of the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes. If funds sufficient to pay the Special Mandatory Redemption Price of the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes on the Special Mandatory Redemption Date are deposited with the Trustee or a paying agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes will cease to bear interest.
SECTION 2.03. Denominations. The Notes shall be issued in registered form without interest coupons and only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.04. Form. The Notes will be represented by one or more Global Securities. The Notes shall be in substantially the form set forth in Exhibit A hereto with such changes therein as may be authorized by any officer of the Company executing such Notes by manual, facsimile or electronic signature, such approval to be conclusively evidenced by the execution thereof by such applicable officer.
The terms and provisions contained in each series of Notes shall constitute, and are hereby expressly made, a part of this First Indenture Supplement, and the Company and the Trustee, by their execution and delivery of this First Indenture Supplement, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any series of Notes conflicts with the express provisions of this First Indenture Supplement, the provisions of this First Indenture Supplement shall govern and be controlling.
Each series of Notes shall be issued as registered Securities without coupons.
ARTICLE III
Miscellaneous
SECTION 3.01. Ratification. This First Indenture Supplement shall be deemed part of the Base Indenture in the manner and to the extent herein provided. Except as expressly amended hereby, the Base 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. Counterparts. This First Indenture Supplement and the Global Securities 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
10
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 3.04. 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 3.05. Separability. In case any one or more of the provisions contained in this First Indenture Supplement or in the Notes 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 Notes, but this First Indenture Supplement and such Notes 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 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 First Indenture Supplement 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 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
11
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, 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.
[Signature Pages Follow]
12
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 NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, | ||||
| By | /s/ Robert Lee | |||
| Name: | Robert Lee | |||
| Title: | Vice President | |||
| AON PLC, A PUBLIC LIMITED COMPANY DULY ORGANIZED AND EXISTING UNDER THE LAWS OF IRELAND, | ||||
| By | /s/ Paul Hagy | |||
| Name: | Paul Hagy | |||
| Title: | Treasurer | |||
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, | ||||
| By | /s/ Robert Lee | |||
| Name: | Robert Lee | |||
| Title: | Vice President | |||
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY ORGANIZED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES, | ||||
| By | /s/ Gardner Mugashu | |||
| Name: | Gardner Mugashu | |||
| Title: | Director | |||
[Trustee Signature Page to the Indenture Supplement]
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY ORGANIZED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES, | ||||
| By | /s/ Alistair Boyd | |||
| Name: | Alistair Boyd | |||
| Title: | Director | |||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., | ||||
| by | /s/ Ann M. Dolezal | |||
| Name: | Ann M. Dolezal | |||
| Title: | Vice President | |||
EXHIBIT A
FORM OF NOTE
Unless this Security is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Security issued upon registration of transfer of, or in exchange for, or in lieu of, this Security is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
AON NORTH AMERICA, INC.
$ % Senior Notes Due 20
with full and unconditional guarantees
as to payment of principal and interest by
Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited
No.
$
CUSIP No.
AON NORTH AMERICA, INC.
Aon North America, Inc., a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee for The Depository Trust Company, or registered assigns, the principal sum of ($ ) on , 20 and, subject to Section 16.05 of said Indenture, to pay interest thereon from March 1, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on each March 1 and September 1, commencing on September 1, 2024 (each, an “Interest Payment Date”), at the rate of % per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on a subsequent record date for the payment of such defaulted interest established by the Company, notice whereof shall be given to Holders of Securities of this series not less than 15 days prior to such subsequent record date, such record date to be not less than 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 the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
A-1
Payment of the principal of and premium, if any, and interest on this Security will be made at the office or agency of the Company maintained for that purpose in the City of Chicago or the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by wire transfer, other electronic means or mailing checks to the address of the Holder entitled thereto as such address shall appear in the Security Register.
The Securities of this series are subject to redemption at the option of the Company prior to the stated maturity as described in the Indenture and on the reverse hereof.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to herein by manual, facsimile or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
NOTICE TO HOLDER
THE HOLDER OF THIS SECURITY IS HEREBY NOTIFIED, AND BY ITS ACCEPTANCE HEREOF ACKNOWLEDGES, THAT (1) THE COMPANY AND A GUARANTOR, IN RESPECT OF ITS GUARANTEE, SHALL WITHHOLD OR DEDUCT 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 STATES OR BY ANY AUTHORITY OR AGENCY THEREIN OR THEREOF HAVING THE POWER TO TAX (COLLECTIVELY, “UNITED STATES TAXES”) AS REQUIRED BY LAW OF THE UNITED STATES AND (2) IF THE COMPANY OR A GUARANTOR (OR A WITHHOLDING AGENT FOR THE COMPANY OR SUCH GUARANTOR) IS SO REQUIRED TO WITHHOLD OR DEDUCT ANY AMOUNT FOR OR ON ACCOUNT OF UNITED STATES TAXES FROM ANY PAYMENT, NO ADDITIONAL AMOUNTS SHALL BE PAID TO A HOLDER OR BENEFICIAL OWNER FOR OR WITH RESPECT TO THE AMOUNT SO WITHHELD OR DEDUCTED.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: March 1, 2024
| AON NORTH AMERICA, INC., A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
[Seal]
| Attest: |
[Company Signature Page to the Global Note]
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: March 1, 2024
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, | ||
| by | ||
| Authorized Officer | ||
[Trustee Signature Page to the Global Note]
This Security is one of a duly authorized series of securities of the Company entitled “ % Senior Notes Due 20 ” (herein called the “Securities”) issued and to be issued under the Indenture, dated March 1, 2024, as supplemented by the First Indenture Supplement, dated March 1, 2024, among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture, as defined below) (together, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The Securities of this series will initially be issued in the aggregate principal amount of $ . The Company may, from time to time, without the written consent of or notice to Holders of the Securities of this series, create and issue under the Indenture additional securities having the same terms and conditions as the Securities of this series (other than the issue date, the issue price and, to the extent applicable, the first date from which interest on such additional securities shall accrue and the first interest payment date for such additional securities) and such additional securities shall be consolidated with and form a single series with the Securities of this series.
Prior to , 20 ( months prior to the Securities’ Stated Maturity) (the “Par Call Date”), the Company may redeem the Securities at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of the principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities being redeemed discounted to the redemption date (assuming the Securities being redeemed matured on the applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus basis points ( %) less, (b) interest accrued to the date of redemption, and (ii) 100% of the principal amount of the Securities being redeemed; and plus, in either case, accrued and unpaid interest on the principal amount of the Securities being redeemed to the redemption date.
On or after the Par Call Date, the Company may redeem the Securities, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Securities being redeemed plus accrued and unpaid interest thereon to the redemption date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant
A-5
maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If, on the third business day preceding the redemption date, H.15 is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
[In the event that the NFP Acquisition (as defined below) is not consummated on or before the earliest of (i) the later of (x) December 19, 2024 and (y) such later date to which the outside date under the Merger Agreement (as defined below) as in effect on the issue date may be extended in accordance with the terms thereof, (ii) the valid termination of the Merger Agreement (other than in connection with the consummation of the NFP Acquisition) and (iii) the Company’s determination based on its reasonable judgment (in which case the Company will notify the Trustee in writing thereof) that the NFP Acquisition will not be consummated (any event described in clause (i), (ii) or (iii), a “Special Mandatory Redemption Event”), the Company will be required to redeem all of the outstanding Securities at a redemption price equal to 101% of the aggregate principal amount of such Securities, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (the “Special Mandatory Redemption Price”, and such redemption, a “Special Mandatory Redemption”). Upon the occurrence of a Special Mandatory Redemption Event, the Company will cause a notice of Special Mandatory Redemption to be transmitted to the Trustee and each holder of the Securities at its registered
A-6
address (or electronically delivered or otherwise transmitted in accordance with the depositary’s procedures) promptly, but in any event not later than five business days after the occurrence of such Special Mandatory Redemption Event, and will redeem the Securities on the date specified in such notice (the date so specified, the “Special Mandatory Redemption Date”). The Special Mandatory Redemption Date will be a date selected by the Company and set forth in the notice of Special Mandatory Redemption and will be no later than 30 days following the occurrence of the applicable Special Mandatory Redemption Event, but no earlier than the fifth business day following the day the notice of Special Mandatory Redemption is transmitted to holders of the Securities.
If funds sufficient to pay the Special Mandatory Redemption Price of the Securities on the Special Mandatory Redemption Date are deposited with the Trustee or a paying agent on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the outstanding Securities will cease to bear interest.
“Acquirer” means Randolph Acquisition Corp., a Delaware corporation and an indirect, wholly owned subsidiary of Aon plc.
“Merger Agreement” means the agreement and plan of merger, dated as of December 19, 2023, among Aon plc, the Acquirer, Randolph Merger Sub LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of the Acquirer, NFP and NFP Parent Co, LLC, a Delaware limited liability company.
“NFP” means NFP Intermediate Holdings A Corp., a Delaware corporation.
“NFP Acquisition” means the acquisition by the Acquirer of the issued and outstanding equity interests of NFP pursuant to the Merger Agreement.]1
The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any optional redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 90 days before the redemption date to each Holder of Securities to be redeemed. In the case of a partial redemption, selection of Securities in certificated form for redemption will be made by lot. Unless the Company and the Guarantors default in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Securities or portions thereof called for redemption. In the case of a partial redemption, selection of the Securities for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. For so long as the Securities are held by The Depository Trust Company (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.
Notwithstanding the foregoing, installments of interest on Securities being redeemed that are due and payable on Interest Payment Dates falling on or prior to a redemption date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the Regular Record Date according to the Securities and the Indenture.
| 1 | Applicable only in the case of the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes. |
A-7
All payments made by a Guarantor with respect to 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 an Event of Default with respect to the Securities of this series shall occur and be continuing, the principal amount of and accrued and unpaid interest, if any, on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
A-8
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Except as described below for the first Interest Payment Date, on each Interest Payment Date, the Company will pay interest on the Notes for the period commencing on (and including) the immediately preceding Interest Payment Date and ending on (and including) the day immediately preceding that Interest Payment Date. On the first Interest Payment Date, the Company will pay interest for the period beginning on (and including) the issue date to (but excluding) the first Interest Payment Date. If any Interest Payment Date falls on a day that is not a Business Day, the related interest payment shall be postponed to the next day that is a Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date. If the Stated Maturity or date of earlier redemption falls on a day that is not a Business Day, payment of principal and interest on such Notes will be made on the next succeeding day that is a Business Day, and no interest will accrue for the period from and after such Stated Maturity or date of earlier redemption. “Business Day” means any day, other than Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York.
All terms used but not defined in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflict of laws provisions thereof.
A-9
ASSIGNMENT
I or we assign and transfer this Security to:
(Insert assignee’s social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
as agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |||||||
| (Sign exactly as your name appears on the face of this Security) |
| Signature Guarantee: |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-10
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| AON PLC, A PUBLIC LIMITED COMPANY DULY ORGANIZED AND EXISTING UNDER THE LAWS OF IRELAND, | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to the Notation of Guarantee]
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| AON CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to the Notation of Guarantee]
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| AON GLOBAL HOLDINGS PLC, A PUBLIC LIMITED COMPANY DULY ORGANIZED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES, | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to the Notation of Guarantee]
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| AON GLOBAL LIMITED, A PRIVATE LIMITED COMPANY DULY ORGANIZED AND EXISTING UNDER THE LAWS OF ENGLAND AND WALES, | ||||
| by | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to the Notation of Guarantee]
Exhibit 5.1
March 1, 2024
Aon North America, Inc.
$600,000,000 5.125% Senior Notes due 2027
$1,000,000,000 5.150% Senior Notes due 2029
$650,000,000 5.300% Senior Notes due 2031
$1,750,000,000 5.450% Senior Notes due 2034
$2,000,000,000 5.750% Senior Notes due 2054
Ladies and Gentlemen:
We have acted as counsel to Aon North America, Inc., a Delaware corporation (the “Company”), and each of the affiliates of the Company listed on Annex A to this opinion (the “Guarantors”) in connection with the public offering and sale by the Company of $600,000,000 aggregate principal amount of the Company’s 5.125% Senior Notes due 2027 (the “2027 Notes”), $1,000,000,000 aggregate principal amount of the Company’s 5.150% Senior Notes due 2029 (the “2029 Notes”), $650,000,000 aggregate principal amount of the Company’s 5.300% Senior Notes due 2031 (the “2031 Notes”), $1,750,000,000 aggregate principal amount of the Company’s 5.450% Senior Notes due 2034 (the “2034 Notes”) and $2,000,000,000 aggregate principal amount of the Company’s 5.750% Senior Notes due 2054 (the “2054 Notes” and, together with the 2027 Notes, the 2029 Notes, the 2031 Notes and the 2034 Notes, the “Notes”), to be issued under an indenture dated as of the date hereof (the “Base Indenture” and, as amended and supplemented from time to time, including pursuant to the First Supplemental Indenture referred to below, the “Indenture”), among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of the date hereof (the “First Supplemental Indenture”) by and among the Company, the Guarantors and the Trustee, in accordance with the Underwriting Agreement, dated February 28, 2024 (the “Underwriting Agreement”), among Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, HSBC Securities (USA) Inc. and J.P. Morgan Securities LLC, as representatives of the several Underwriters listed on Exhibit A thereto, the Company and the Guarantors. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Underwriting Agreement.
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including (a) the Certificate of Incorporation of the Company, as amended; (b) the By-laws of the Company; (c) the resolutions adopted by the Board of Directors of the Company on February 23, 2024; (d) the Certificate of Incorporation of Aon Corporation, a Delaware corporation (“Aon Corp.”), as amended; (e) the By-laws of Aon Corp.; (f) the resolutions adopted by the Board of Directors of Aon Corp. on February 23, 2024; (g) the Indenture (and the forms of Notes contained therein) and (h) the Registration Statement on Form S-3 (Registration No. 333-272818) filed with the Securities and Exchange Commission (the “Commission”) on June 22, 2023 (the “Registration Statement”), with respect to registration under the Securities Act of 1933, as amended (the “Securities Act”) of an unlimited amount of various securities of the Company, to be issued from time to time by the Company.
In rendering this opinion, we have assumed, with your consent and without independent investigation or verification, the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as duplicates or copies. We also have assumed, with your consent, that the Indenture (including the Guarantees therein) has been duly authorized, executed and delivered by, and represents a legal, valid and binding obligation of, the Trustee and that the form of the Notes will conform to that included in the Indenture.
Based on the foregoing and subject to the qualifications set forth herein and subject to compliance with applicable state securities laws, we are of the opinion as follows:
| 1. | When the Notes have been executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, the Notes will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). |
| 2. | When the Notes have been executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, each Guarantee will constitute the legal, valid and binding obligation of the applicable Guarantor, enforceable against such Guarantor in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). |
We are admitted to practice in the State of New York, and we express no opinion as to matters governed by any laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal laws of the United States of America. In particular, we do not purport to pass on any matter governed by the laws of Ireland or England and Wales.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof and incorporated by reference into the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the prospectus supplement constituting part of the Registration Statement. In giving this consent, we do not thereby 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.
| Very truly yours, |
| /s/ Cravath, Swaine & Moore LLP |
Aon North America, Inc.
200 East Randolph Street
Chicago, Illinois 60601
O
ANNEX A
Guarantors
| Guarantors |
Jurisdiction | |
| Aon plc |
Ireland | |
| Aon Corporation |
Delaware | |
| Aon Global Holdings plc |
England and Wales | |
| Aon Global Limited |
England and Wales | |
Exhibit 5.2
|
Aon North America, Inc. 200 East Randolph Street Chicago, IL 60601 |
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 www.freshfields.com |
1 March 2024
Aon North America, Inc.
Prospectus Supplement to Registration Statement on Form S-3ASR
Introduction
1. In connection with the automatic shelf registration statement on Form S-3ASR (the Registration Statement) filed with the U.S. Securities and Exchange Commission (SEC) on 22 June 2023, as supplemented by a prospectus supplement dated 28 February 2024 and filed with the SEC on 29 February 2024 (the Prospectus Supplement) of Aon North America, Inc., a Delaware corporation (ANA and the Issuer), 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 Prospectus Supplement. The Registration Statement and Prospectus Supplement relate to the registration under the Securities Act of the issuance and sale of US$600,000,000 aggregate principal amount of 5.125% senior notes due 2027, US$1,000,000,000 aggregate principal amount of 5.150% senior notes due 2029, US$650,000,000 aggregate principal amount of 5.300% senior notes due 2031, US$1,750,000,000 aggregate principal amount of 5.450% senior notes due 2034 and US$2,000,000,000 aggregate principal amount of 5.750% senior notes due 2054, issued by the Issuer (together, the Debt Securities). The Debt Securities will be fully and unconditionally guaranteed, jointly and severally, by Aon plc, an Irish public limited company, Aon Global Holdings plc (AGH), a public limited company incorporated under the laws of England and Wales, Aon Corporation, a Delaware corporation and Aon Global Limited, a private limited company incorporated under the laws of England and Wales (AGL and, together with Aon plc, Aon Corporation and AGH, the Guarantors).
2. We are acting as English legal advisers to AGH and AGL, for the purposes of giving this opinion. In so acting, we have examined the following documents:
| (a) | the Prospectus Supplement; |
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 |10 |
| (b) | a copy of the underwriting agreement of the Issuer, the Guarantors, Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, HSBC Securities (USA) Inc. and J.P. Morgan Securities LLC dated 28 February 2024 (the Underwriting Agreement and, together with the Indenture (as defined below), the Documents); |
| (c) | a copy of the current Articles of Association of AGH as at 1 March 2024; |
| (d) | 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 ((c) and (d) together the AGH Constitutional Documents); |
| (e) | a copy of the current Articles of Association of AGL as at 1 March 2024; |
| (f) | 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 ((e) and (f) together the AGL Constitutional Documents and, together with the AGH Constitutional Documents, the Constitutional Documents); |
| (g) | a copy of the indenture to be dated on closing of the issue of the Debt Securities (the Base Indenture), as supplemented by the first indenture supplement to be dated on closing of the issue of the Debt Securities (the Supplemental Indenture) entered into between the Issuer, the Guarantors and the Bank of New York Mellon, as Trustee, as further supplemented by an officers’ certificate of the Issuer, and containing the guarantee of the Debt Securities by the Guarantors (the Guarantee and, together with the Base Indenture and the Supplemental Indenture, the Indenture); |
| (h) | searches carried out on 1 March 2024 with respect to each of AGH and AGL (carried out by us or by GlobalX on our behalf) of the public documents of AGH and AGL kept at Companies House in Cardiff (the Company Searches); |
| (i) | a winding up enquiry of the Central Registry of Winding up Petitions (carried out by us or by GlobalX on our behalf) on 1 March 2024 with respect to each of AGH and AGL (the Winding-up Enquiry); |
| (j) | a certificate issued to us by the Company Secretary of AGH dated 1 March 2024 (the AGH Secretary’s Certificate); |
| (k) | a certificate issued to us by the Company Secretary of AGL dated 1 March 2024 (the AGL Secretary’s Certificate and together with the AGH Secretary’s Certificate, the Secretaries’ Certificates); |
| (l) | written resolutions of the board of directors of AGH approved on 23 February 2024 authorising the execution and delivery of and performance of obligations under the Indenture and the execution and delivery of and performance of obligations under the Guarantee; and |
|
|
3 |10 |
| (m) | written resolutions of the board of directors of AGL approved on 23 February 2024 authorising the execution and delivery of and performance of obligations under the Indenture and the execution and delivery of and performance of obligations under the Guarantee, |
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 assimilated EU legislation) is to it as amended.
4. We express no opinion herein in respect of the tax treatment of the above documents or the transactions contemplated by such 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 above 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 Cravath, Swaine & Moore 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 each 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); |
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4 |10 |
| (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 executed in the form of that draft or specimen; |
| (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: that the written resolutions approved by AGL on 23 February 2024, 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: that the written resolutions approved by AGH on 23 February 2024, 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) | Corporate Power: 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; |
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| (k) | Validity under all 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; |
| (l) | Filings under all 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; |
| (m) | 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; |
| (n) | 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; |
| (o) | 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; |
| (p) | Directors’ Duties: that the directors of AGL and AGL in authorising 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; |
| (q) | 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 the Issuer of a prospectus pursuant to assimilated Regulation (EU) 2017/1129, as it forms part of the laws of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018; |
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| (r) | 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; |
| (s) | FSMA (Financial promotion): that the Registration Statement and the Prospectus Supplement (including any 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; |
| (t) | 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; |
| (u) | 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; |
| (v) | Representations: that the terms of the Documents and Underwriting Agreement, other than, in the case of the Underwriting Agreement, as to matters of law on which we opine in this opinion, have been and will be observed and performed by the parties thereto; |
| (w) | 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, anti-subsidy, sanctions, pensions and human rights laws and regulations which may affect them, the transactions contemplated by the Documents or the Documents, and that performance and enforcement of them, the transactions contemplated by the Documents or the Documents is, and will continue to be, consistent with all such laws and regulations; and |
| (x) | 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). |
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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 private limited company; |
| (b) | Corporate Power: each of AGH and AGL has the requisite corporate power and capacity to issue, deliver and perform its obligations under, when issued, the Guarantee, in accordance with the terms of the Guarantee and the Indenture; |
| (c) | Corporate Authority: each of AGH and AGL has taken the steps required under English law and the Constitutional Documents to authorise them to enter into and perform their obligations under, when issued, the Guarantee in accordance with the terms of the Indenture; and |
| (d) | No Violation: the execution and delivery of the Debt Securities, the Guarantee 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.
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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;
| (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; |
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| (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 irrevocably guaranteed by the Guarantors 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. |
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 the Debt Securities and the giving of the Guarantee 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 and the giving of the Guarantee 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 and the Prospectus Supplement 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).
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Having requested production of this opinion and in order to rely on its contents, you agree to be bound by its terms.
We consent to the filing of this opinion as an Exhibit to the report on Form 8-K to be filed by ANA on the date hereof and to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement. 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 |
Exhibit 5.3
Aon plc
Metropolitan Building
James Joyce Street
Dublin 1
Ireland
| Our ref | 1 March 2024 | |
| FBO/AOC 659500-51 |
Dear Sirs
Registration, offer and sale of certain Senior Notes by Aon North America, Inc., as guaranteed by Aon plc, Aon Corporation, Aon Global Holdings plc and Aon Global Limited
We have acted as Irish counsel to Aon plc, a public limited company incorporated under the laws of Ireland (company number 604607) (the “Company”), in connection with the registration, offer and sale of $600,000,000 5.125% Senior Notes due 2027 (the “2027 Notes”), $1,000,000,000 5.150% Senior Notes due 2029 (the “2029 Notes”), $650,000,000 5.300% Senior Notes due 2031 (the “2031 Notes”), $1,750,000,000 5.450% Senior Notes due 2034 (the “2034 Notes”) and $2,000,000,000 5.750% Senior Notes due 2054 (the “2054 Notes” and, together with the 2027 Notes, 2029 Notes, 2031 Notes and 2034 Notes, the “Notes”) by Aon North America, Inc., a Delaware corporation (the “Issuer”), as guaranteed by the Company, Aon Corporation, a Delaware corporation, Aon Global Holdings plc, a public limited company incorporated under the laws of England and Wales, and Aon Global Limited, a private limited company incorporated under the laws of England and Wales (together, the “Guarantors”) pursuant to the registration statement on Form S-3ASR (the “Registration Statement”) filed by the Company on 22 June 2023 under the U.S. Securities Act of 1933, as amended (the “Securities Act”) with the U.S. Securities Exchange Commission (the “Commission”), the prospectus included therein and a prospectus supplement dated 28 February 2024 (the “Prospectus Supplement”).
The Notes will be issued under the New York law governed indenture dated the date hereof, among the Issuer, as issuer, the Guarantors, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented by the New York law governed first supplemental indenture dated the date hereof, among the Issuer, as issuer, the Guarantors, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee (together, the “Indenture”).
The Notes are to be sold pursuant to an underwriting agreement dated 28 February 2024, among the Issuer, as issuer, the Guarantors, as guarantors and the underwriters named therein (the “Underwriting Agreement”).
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 solely on our review of the Documents and subject to the assumptions, qualifications 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; and |
| 2. | the Company has the requisite power and authority under its constitution to enter into the Indenture and to perform its obligations thereunder, the entry into the Indenture has been duly authorised by the Company and the guarantee of the Notes constitutes a valid and binding obligation 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 5.1 to the Current Report on Form 8-K dated the date hereof filed by the Company and incorporated by reference into the Registration Statement and to the reference to Matheson LLP under the caption “Legal Matters” in the Prospectus Supplement 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 the date hereof (the “Corporate Certificate”), attaching a copy of each of the following certified as being true, complete and correct by such director: |
| (a) | the constitution and certificate of incorporation of the Company dated 23 May 2017, the certificate of incorporation on change of name of the Company dated 5 November 2019 and the certificate of incorporation on re-registration of the Company as a public limited company dated 18 March 2020; |
| (b) | the current constitution of the Company, comprised of its memorandum of association and articles of association, as last amended on 2 June 2021; |
| (c) | extracts of the resolutions of the board of directors of the Company passed at meetings of the board of directors of the Company held on 17 November 2023 and 16 February 2024, |
and certifying certain other matters, as set therein, on which we have relied for the purpose of this Opinion.
| 2. | The Registration Statement, including the prospectus included therein. |
| 3. | The Prospectus Supplement. |
| 4. | A copy of the Indenture, as executed. |
| 5. | A copy of the Underwriting Agreement, as executed. |
| 6. | Searches carried out by independent law researchers on our behalf against the Company on 1 March 2024 in (a) the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland (the “Index”)., (b) the Judgments’ Office of the Central Office of the High Court of Ireland and (c) the Companies Registration Office in Dublin (the “CRO”). (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 we 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 electronic signatures 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 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 not subject to avoidance by any person under all applicable laws in all applicable jurisdictions (other than, in the case of the Company, the laws of Ireland and the jurisdiction of Ireland). |
| 7. | 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. |
| 8. | 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 directors of the Company and such resolutions have not been amended or rescinded and are in full force and effect. |
| 9. | The Company has, or will, derive a commercial benefit from entering into the Indenture and any other document referred to in, or contemplated by, the Registration Statement (including the prospectus contained therein and the Prospectus Supplement) and guaranteeing the Notes in accordance with the provisions of the Indenture commensurate with the obligations undertaken by it thereunder. |
| 10. | In approving the entry into the Indenture and any other document referred to in, or contemplated by, the Registration Statement (including the prospectus contained therein) and the Prospectus Supplement and guaranteeing the Notes in accordance with the provisions of the Indenture, 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. |
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| 11. | The Company has not, and shall not, by virtue of or in connection with its guarantee of the Notes, give any financial assistance, as contemplated by sections 82 and 1043 of the Companies Act 2014 of Ireland (the “Companies Act”) for the purpose of any acquisition of shares in the capital of the Company, save as permitted by, or pursuant to an exemption to, the said sections 82 and 1043. |
| 12. | The Company together with any other entity whose obligations are guaranteed by it under the Indenture together comprise a “group” for the purposes of section 243 of the Companies Act and any person that subsequently becomes an issuer or a guarantor under the Indenture will also be a member of such group. |
| 13. | In entering into the Documents and approving the guarantee of the Notes under the Indenture, there was no intent by the directors and/or duly authorised officer acting under delegated authority to give a creditor a preference which could be deemed an unfair preference in accordance with section 604 of the Companies Act. |
| 14. | The obligations expressed to be assumed by each party to the Indenture 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. |
| 15. | If any obligation of any of the parties under the Indenture 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 the Indenture or which would render its performance ineffective by virtue of the laws of that jurisdiction. |
| 16. | The Indenture 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 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. |
| 17. | 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 the Prospectus Supplement or with respect to the issue, offer or sale of the Notes (other than, in the case of the Company, the governmental or regulatory authorities of Ireland) have been obtained and are in full force and effect, the Notes will be issued in the form set out in the Indenture and the selling restrictions contained in the Registration Statement (including the prospectus contained therein) and the Prospectus Supplement and the Underwriting Agreement 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, sale and/or offer of the Notes. |
| 18. | The creation, issuance, offering and sale, including the marketing, of the Notes 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 Notes to the public in any jurisdiction, including the obligation to prepare a prospectus or registration document relating to the Notes 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. |
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| 19. | That: (a) the Company will be fully solvent at the time of and immediately following the issue of the Notes, (b) no resolution or petition for the appointment of a liquidator or examiner will be passed or presented prior to the issue of the Notes, (c) no receiver will have been appointed in relation to any of the assets or undertaking of the Company prior to the issue of the Notes 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 the Company prior to the issue of the Notes. |
| 20. | 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. |
| 21. | No proceedings have been or will be instituted or injunction granted against the Company to restrain it from guaranteeing the Notes and the guarantee by the Company of the Notes 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. |
| 22. | The absence of fraud and the presence of good faith on the part of all parties to the Documents and their respective officers, employees, agents and advisors. |
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Schedule 3
Qualifications
The opinions in this Opinion are subject to the following qualifications:
| 1. | A search at the CRO 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. |
| 2. | A search on the Index is not capable of revealing whether or not a receiver has been appointed in respect of the Company. |
| 3. | Whilst each of the making of a winding-up order or resolution, 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 CRO it may not be filed at the CRO immediately and, therefore, our searches at the CRO may not have revealed such matters. Similarly whilst a petition to wind-up the Company may be revealed by a search on the Index, 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. |
| 4. | The position reflected in the Searches may not be fully up to date. |
| 5. | The expression “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. |
| 6. | 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 (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. |
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| 7. | 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. |
| 8. | 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. |
| 9. | 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. |
| 10. | 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. |
| 11. | This Opinion does not deal with the tax treatment of the issuance, transfer and guarantee of the Notes or any payments in respect of the Notes and/or the guarantee of the Notes. |
| 12. | 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. |
| 13. | 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. |
| 14. | 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. |
| 15. | A right of set-off provided for in a contract or another document may not be enforceable in all circumstances. |
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