Exhibit 4.3
================================================================================
XXXXX & XxXXXXXX COMPANIES, INC.,
Issuer,
and
U.S. Bank National Association (as successor
to State Street Bank
and Trust Company,
Trustee
--------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 19, 2003
--------------------
$250,000,000 principal amount of 3.625% Senior Notes Due 2008
$250,000,000 principal amount of 4.850% Senior Notes Due 2013
================================================================================
SECOND SUPPLEMENTAL INDENTURE, dated as of February 19, 2003, between
XXXXX & McLENNAN COMPANIES, INC., a Delaware corporation (the "Company" and
hereinafter the "Issuer"), and U.S. BANK NATIONAL ASSOCIATION (as successor to
State Street Bank and Trust Company), a national banking association, as Trustee
(the "Trustee")
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee executed and delivered an
Indenture, dated as of June 14, 1999 (as supplemented hereby, the "Indenture"),
to provide for the issuance by the Issuer from time to time of senior debt
securities evidencing its unsecured indebtedness;
WHEREAS, U.S. Bank National Association purchased substantially all of
the corporate trust business of the State Street Bank and Trust Company,
succeeding as the Trustee pursuant to Section 7.12 of the Indenture;
WHEREAS, pursuant to a Board Resolution, the Issuer has authorized the
issuance of $250,000,000 principal amount of 3.625% Senior Notes due 2008 (the
"3.625% Notes") and $250,000,000 principal amount of 4.850% Senior Notes due
2013 (the "4.850% Notes", together with the 3.625% Notes, the "Offered
Securities");
WHEREAS, the entry into this Second Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the Indenture;
and
WHEREAS, the Issuer desires to establish the terms of the Offered
Securities in accordance with Section 2.01 of the Indenture and to establish the
form of the Offered Securities in accordance with Section 2.02 of the Indenture;
and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid indenture and agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the premises, the Issuer
and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the Offered Securities as
follows:
Article 1
Section 1.01. Terms of Offered Securities. The following terms relating
to the Offered Securities are hereby established:
(a) The 3.625% Notes shall constitute a series of securities having the
title "3.625% Senior Notes due 2008" and the 4.850% Notes shall constitute a
series of securities having the title "4.850% Senior Notes due 2013."
(b) The aggregate principal amount of the 3.625% Notes that may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Sections 2.05, 2.06, 2.07 or 9.01) shall be up to
$250,000,000. The aggregate principal amount of the 4.850% Notes that may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Sections 2.05, 2.06, 2.07 or 9.01) shall be up to
$250,000,000.
(c) The entire outstanding principal of the 3.625% Notes shall be
payable on February 15, 2008 plus any unpaid interest accrued to such date and
the entire outstanding principal of the 4.850% Notes shall be payable on
February 15, 2013 plus any unpaid interest accrued to such date.
(d) The rate at which the 3.625% Notes shall bear interest shall be
3.625% per annum and the rate at which the 4.850% Notes shall bear interest
shall be 4.850% per annum; the date from which interest shall accrue on the
Offered Securities shall be February 19, 2003; the Interest Payment Dates for
the Offered Securities on which interest will be payable shall be February 15
and August 15 in each year, beginning August 15, 2003; the Regular Record Dates
for the interest payable on the Offered Securities on any Interest Payment Date
shall be the February 1 and August 1 preceding the applicable Interest Payment
Date; and the basis upon which interest shall be calculated shall be that of a
360-day year consisting of twelve 30-day months.
(e) The Offered Securities shall be issuable in denominations of $1,000
and any integral multiple thereof.
(f) The Trustee shall also be the security registrar and paying agent
for the Offered Securities.
(g) Payments of the principal of and interest on the Offered Securities
shall be made in U.S. Dollars, and the Notes shall be denominated in U.S.
Dollars.
(h) The holders of the Offered Securities shall have no special rights
in addition to those provided in the Indenture upon the occurrence of any
particular events.
(i) The Notes shall not be subordinated to any other debt of the Issuer,
and shall constitute senior unsecured obligations of the Issuer.
The Offered Securities are issuable in book entry form and are not
convertible into shares of common stock or other securities of the Company.
Section 1.02. Amendment to Article IV. Article IV of the Indenture is
hereby amended to include the following covenant with respect to the Offered
Securities only (and not with respect to any other series of securities issuable
pursuant to the Indenture unless the supplemental indenture relating thereto
expressly so provides), which reads in its entirety as follows:
Section 4.06. Limitation on Liens on Stock of Significant
Subsidiaries. The Company will not, and it will not permit any
Subsidiary of the Company to, at any time directly or indirectly
create, assume, incur or permit to exist any Indebtedness secured by a
pledge, lien or other encumbrance (any pledge, lien or other
encumbrance being hereinafter in this Section referred to as a "lien")
on the voting stock of Xxxxx Inc., Xxxxxx Investments, LLC or Xxxxxx
Consulting Group, Inc. (each a "Significant Subsidiary") without making
effective provision whereby the Offered Securities then Outstanding
(and, if the Company so elects, any other Indebtedness of the Company
that is not subordinate to the Offered Securities and with respect to
which the governing instruments require, or pursuant to which the
Company is otherwise obligated or required, to provide such security)
shall be equally and ratably secured with such secured Indebtedness so
long as such other Indebtedness shall be so secured.
"Indebtedness" of any person means the principal of and
premium, if any, and interest due on indebtedness of such Person,
whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, which is (a) indebtedness for money
borrowed, and (b) any amendments, renewals, extensions, modifications
and refundings of any such indebtedness. For the purposes of this
definition, "indebtedness for money borrowed" means (i) any obligation
of, or any obligation guaranteed by, such Person for the repayment of
borrowed money, whether or not evidenced by bonds, debentures, notes or
other written instruments, (ii) any obligation of, or any such
obligation guaranteed by, such Person evidenced by bonds, debentures,
notes or similar written instruments, including obligations assumed or
incurred in connection with the acquisition of properly, assets or
businesses (provided, however, that the deferred purchase price of any
business or property or assets shall not be considered Indebtedness if
the purchase price thereof is payable in full within 90 days from the
date on which such indebtedness was created), and (iii) any obligations
of such Person as lessee under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting
principles and leases of property or assets made as part of any sale
and lease-back transaction to which such Person is a party. For
purposes of this covenant only, Indebtedness also includes any
obligation of, or any obligation guaranteed by, any Person for the
payment of amounts due under a swap agreement or similar instrument or
agreement, or under a foreign currency hedge or similar instrument or
agreement.
If the Company shall hereafter be required to secure the
Offered Securities equally and ratably with any other Indebtedness
pursuant to this Section, (i) the Company will promptly deliver to the
Trustee an Officers' Certificate stating that the foregoing covenant
has been complied with, and an Opinion of Counsel stating that in the
opinion of such counsel the foregoing covenant has been complied with
and (ii) the Trustee is hereby authorized to enter into an indenture or
agreement supplemental hereto and to take such action, if any, as it
may deem advisable to enable it to enforce the rights of the holders of
the Offered Securities so secured.
Section 1.03. Amendment of Article Ten. Article Ten of the Indenture
is hereby amended and restated in its entirety with respect to the Offered
Securities only (and not with respect to any other series of securities issuable
pursuant to the Indenture unless the supplemental indenture relating thereto
expressly so provides) as follows:
Section 10.01. Company May Consolidate, Etc., Only on Certain
Terms. (a) Subject to Section 10.01(c) below, the Company shall not
consolidate with or merge into any other Person or convey, transfer or
lease all or substantially all of its properties and assets to any
Person, and the Company shall not permit any Person to consolidate with
or merge into the Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease all or
substantially all of its properties and assets to any Person, the
Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which
leases, all or substantially all of the properties and assets of the
Company shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 10.02. Successor Substitute. Upon any consolidation of
the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of all or substantially all of the
properties and assets of the Company in accordance with Section 10.01
above, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under the Indenture with the same
effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under the
Indenture and the Offered Securities.
Section 10.03. Evidence of Consolidation, Etc. to Trustee. The
Trustee, subject to the provisions of Section 7.01, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.
Section 1.04. Trustee's Obligations with Respect to the Covenants. The
Trustee shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in this Article
One or with respect to reports or other documents filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 5.01 and 5.03 of the Indenture and to
fulfill its obligations under Article Seven of the Indenture.
Section 1.05. Form Of Note. The form of the 3.625% Notes and the 4.850%
Notes is attached hereto as Exhibit A.
Article 2
MISCELLANEOUS
Section 2.01. Definitions. Capitalized terms used but not defined in
this Second Supplemental Indenture shall have the meanings ascribed thereto
in the Indenture.
Section 2.02. Confirmation of Indenture. The Indenture, as heretofore
supplemented and amended and as further supplemented and amended by this Second
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture, this Second Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
Section 2.03. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Second Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
Section 2.04. Governing Law. This Second Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
Section 2.05. Separability. In case any provision in this Second
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 2.06. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, this Supplemental Indenture has been duly executed
by the Company and the Trustee as of the day and year first written above.
XXXXX & XxXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
U.S. BANK NATIONAL
ASSOCIATION (as successor to
State Street Bank and Trust
Company), as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Exhibit A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO, HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM IN ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE AND THE TERMS
OF THE SECURITIES, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
Certificate No. $250,000,000
CUSIP _________
XXXXX & McLENNAN COMPANIES, INC.
3.625% Senior Notes
due February 15, 2008
XXXXX & XxXXXXXX COMPANIES, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
Co., or its registered assigns, the principal sum of 250,000,000 Dollars
($250,000,000) on February 15, 2008 and to pay interest on said principal sum
from February 19, 2003 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semiannually on February 15 and August 15 of each year commencing
August 15, 2003 at the rate of 3.625% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if any,
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Note is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Note (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the Regular Record Date for such interest installment which shall be February
1 or August 1 preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for (as defined in the
Indenture, the "Defaulted Interest") shall forthwith cease to be payable to the
registered holders on such regular record date, and may be paid to the person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such Defaulted Interest, which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment, and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment or
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America which at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Note is Cede & Co., the payment of the principal of (and premium, if
any) and interest on this Note will be made at such place and to such account as
may be designated by DTC.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, senior and unsecured and will rank in right of payment on parity
with all other senior unsecured obligations of the Company.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated February 19, 2003
XXXXX & McLENNAN COMPANIES, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
--------------------------------------------------------------------------------
(Insert Social Security number or other identifying number of assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including zip code of assignee)
--------------------------------------------------------------------------------
the within Note of Xxxxx & XxXxxxxx Companies, Inc. and hereby does
irrevocably constitute and appoint
--------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:___________________ ___________________________________
___________________________________
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-1 5.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
XXXXX & McLENNAN COMPANIES, INC.
3.625% Senior Notes due 2008
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an indenture (the "Base Indenture") dated as of June 14, 1999 among the
Company, and U.S. Bank National Association (as successor to State Street Bank
and Trust Company), as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture, dated as of June 14, 1999, and the Second Supplemental
Indenture dated as of February 19, 2003 among the Company and the Trustee (the
Base Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Notes. This series of Notes
is limited in aggregate principal amount as specified in said Second
Supplemental Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
Outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such supplemental indenture shall, without the consent of the
holders of each Note then Outstanding and affected thereby (i) extend the fixed
maturity of any Notes of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or (ii) reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes of any series
at the time Outstanding affected thereby, on behalf of all of the Holders of the
Notes of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the Notes
of such series and except as provided in Section 6.06 of the Base Indenture. Any
such consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and of any Note issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Notes. The Trustee
shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Section 5.03 of the Indenture and to fulfill its
obligations under Article VII of the Indenture. If an Event of Default as
defined in the Indenture with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the Notes at the time Outstanding a direction
inconsistent with such request. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Company in the borough of Manhattan,
the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Note Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in authorized denominations. As provided in the Indenture and subject to
certain limitations herein and therein set forth, Notes of this series so issued
are exchangeable for a like aggregate principal amount of Notes of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM IN ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE AND THE TERMS
OF THE SECURITIES, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
Certificate No.
CUSIP _________ $250,000,000
XXXXX & XxXXXXXX COMPANIES, INC.
4.850% Senior Notes
due February 15, 2013
XXXXX & McLENNAN COMPANIES, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
Co., or its registered assigns, the principal sum of 250,000,000 Dollars
($250,000,000) on February 15, 2013 and to pay interest on said principal sum
from February 19, 2003 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semiannually on February 15 and August 15 of each year commencing
August 15, 2003 at the rate of 4.850% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if any,
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Note is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Note (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the Regular Record Date for such interest installment which shall be February
1 or August 1 preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for (as defined in the
Indenture, the "Defaulted Interest") shall forthwith cease to be payable to the
registered holders on such regular record date, and may be paid to the person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such Defaulted Interest, which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment, and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment or
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America which at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Note is Cede & Co., the payment of the principal of (and premium, if
any) and interest on this Note will be made at such place and to such account as
may be designated by DTC.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, senior and unsecured and will rank in right of payment on parity
with all other senior unsecured obligations of the Company.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated February 19, 2003
XXXXX & XxXXXXXX COMPANIES, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
--------------------------------------------------------------------------------
(Insert Social Security number or other identifying number of assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including zip code of assignee)
--------------------------------------------------------------------------------
the within Note of Xxxxx & McLennan Companies, Inc. and hereby does
irrevocably constitute and appoint
--------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:___________________ ___________________________________
___________________________________
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-1 5.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
XXXXX & XXXXXXXX COMPANIES, INC.
4.850% Senior Notes due 2013
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an indenture (the "Base Indenture") dated as of June 14, 1999 among the
Company, and U.S. Bank National Association (as successor to State Street Bank
and Trust Company), as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture, dated as of June 14, 1999, and the Second Supplemental
Indenture dated as of February 19, 2003 among the Company and the Trustee (the
Base Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Notes. This series of Notes
is limited in aggregate principal amount as specified in said Second
Supplemental Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
Outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such supplemental indenture shall, without the consent of the
holders of each Note then Outstanding and affected thereby (i) extend the fixed
maturity of any Notes of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or (ii) reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes of any series
at the time Outstanding affected thereby, on behalf of all of the Holders of the
Notes of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the Notes
of such series and except as provided in Section 6.06 of the Base Indenture. Any
such consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and of any Note issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Notes. The Trustee
shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Section 5.03 of the Indenture and to fulfill its
obligations under Article VII of the Indenture. If an Event of Default as
defined in the Indenture with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the Notes at the time Outstanding a direction
inconsistent with such request. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Company in the borough of Manhattan,
the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Note Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes of this series are issuable only in registered form without
coupons in authorized denominations. As provided in the Indenture and subject to
certain limitations herein and therein set forth, Notes of this series so issued
are exchangeable for a like aggregate principal amount of Notes of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
