Exhibit 4.2
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XXXXX & XxXXXXXX COMPANIES INC.,
Issuer,
and
The Bank of New York,
Trustee
____________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 14, 2004
____________________
$650,000,000 principal amount of 5.375% Senior Notes Due 2014
$500,000,000 principal amount of Floating Rate Senior Notes Due 2007
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FIRST SUPPLEMENTAL INDENTURE, dated as of July 14, 2004, between
XXXXX & McLENNAN COMPANIES, INC., a Delaware corporation (the "Company" and
hereinafter the "Issuer"), and THE BANK OF NEW YORK, a New York banking
corporation, 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 July 14, 2004 (as supplemented hereby, the
"Indenture"), to provide for the issuance by the Issuer from time to time of
senior debt securities evidencing its unsecured indebtedness;
WHEREAS, pursuant to a Board Resolution, the Issuer has authorized the
issuance of $650,000,000 principal amount of 5.375% Senior Notes due 2014 (the
"5.375% Notes") and $500,000,000 principal amount of Floating Rate Senior
Notes due 2007 (the "Floating Rate Notes", together with the 5.375% Notes, the
"Offered Securities");
WHEREAS, the entry into this First Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the
Indenture; 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 First 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 5.375% Notes shall constitute a series of securities having the
title "5.375% Senior Notes due 2014" and the Floating Rate Notes shall
constitute a series of securities having the title "Floating Rate Senior Notes
due 2007."
(b) The aggregate principal amount of the 5.375% 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
$650,000,000. The aggregate principal amount of the Floating Rate 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 $500,000,000.
(c) The entire outstanding principal of the 5.375% Notes shall be payable
on July 15, 2014 plus any unpaid interest accrued to such date and the entire
outstanding principal of the Floating Rate Notes shall be payable on July 13,
2007 plus any unpaid interest accrued to such date.
(d) The rate at which the 5.375% Notes shall bear interest shall be 5.375%
per annum; the date from which interest shall accrue on the 5.375% Notes shall
be July 14, 2004; the Interest Payment Dates for the 5.375% Notes on which
interest will be payable shall be January 15 and July 15 in each year, beginning
January 15, 2005; the Regular Record Dates for the interest payable on the
5.375% Notes on any Interest Payment Date shall be the January 1 and July 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) (i) The 5.375% Notes may be redeemed in whole at any time or in part
from time to time, at the option of the Issuer, at a redemption price equal to
the greater of (1) 100% of the principal amount of the 5.375% Notes to be
redeemed and (2) the sum of the present values of the remaining scheduled
payments of principal and interest on the 5.375% Notes to be redeemed (exclusive
of interest accrued to the date of redemption) discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at then current Treasury Rate plus 15 basis points, plus accrued
and unpaid interest on the principal amount being redeemed to the redemption
date (the "Redemption Price").
(ii) (A) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the 5.375% Notes in
accordance with Section 1.01(e)(i), the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the
5.375% Notes to be redeemed by mailing, first class postage prepaid, a
notice of such redemption not less than 30 days and not more than 60
days before the date fixed for redemption to such holders at their
last addresses as they shall appear upon the Security Register. Any
notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder received the notice. In any case, failure duly to
give such notice to the holder of any 5.375% Note designated for
redemption in whole or in part, or any defect in the notice,
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shall not affect the validity of the proceedings for the redemption of
any other 5.375% Note of such series.
Each such notice of redemption shall specify the date fixed for
redemption and the Redemption Price at which the 5.375% Notes are to
be redeemed, and shall state that payment of the Redemption Price of
such 5.375% Notes to be redeemed will be made at the office or agency
of the Company in the Borough of Manhattan, the City and State of New
York, upon presentation and surrender of such 5.375% Notes, that
interest accrued to the date fixed for redemption will be paid as
specified in said notice and, that from and after said date interest
will cease to accrue. If less than all the 5.375% Notes of a series
are to be redeemed, the notice to the holders of the 5.375% Notes of
that series to be redeemed in whole or in part shall specify the
particular 5.375% Notes to be redeemed. In case any 5.375% Note is to
be redeemed in part only, the notice that relates to such 5.375% Note
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon
surrender of such security, a new 5.375% Note of such series in
principal amount equal to the unredeemed portion thereof will be
issued.
(B) If less than all the 5.375% Notes are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of
the date fixed for redemption as to the aggregate principal amount of
5.375% Notes to be redeemed, and thereupon the Trustee shall select,
by lot or in such other manner as it shall deem appropriate and fair
in its discretion and that may provide for the selection of a portion
or portions (equal to two thousand U.S. dollars ($2,000) or any
integral multiple thereof) of the principal amount of such 5.375%
Notes of a denomination larger than $2,000, the 5.375% Notes to be
redeemed and shall thereafter promptly notify the Company in writing
of the numbers of the 5.375% Notes to be redeemed, in whole or in
part.
The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any
part of the 5.375% Notes for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be
in the name of the Company or its own name as the Trustee or such
paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies
or extracts therefrom,
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sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
(iii) As used herein:
"Business Day" means any calendar day that is not a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required by law to remain closed.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the 5.375% Notes to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such 5.375% Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (ii) if the trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Independent Investment Banker" means Banc of America Securities LLC and
its successors, or, if such firm or the successors, if any, to such firm, as the
case may be, are unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Issuer.
"Reference Treasury Dealer" means Banc of America Securities LLC and its
successors, and three other firms that are primary U.S. Government securities
dealers (each a "Primary Treasury Dealer"), which the Company will specify from
time to time; provided, however, that if any of them ceases to be a Primary
Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee at 5:00 p.m., New York City time, on the third Business
Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
year equal to:
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(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue, provided that, if no
maturity is within three months before or after the Remaining Life of the 5.375%
Notes to be redeemed, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month; or
(ii) if such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such yields, the rate
per year equal to the semi-annual equivalent yield-to-maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price of such redemption date.
The Treasury Rate shall be calculated on the third Business Day preceding
the redemption date.
With respect to Section 1.01(e)(i)(2) above, the Trustee shall be entitled
to rely upon the calculations of the Independent Investment Banker.
(f) The Floating Rate Notes will bear interest at "LIBOR" plus 0.14%.
Interest will accrue from July 14, 2004 and is payable quarterly in arrears on
January 13, April 13, July 13, and October 13 of each year, beginning on October
13, 2004 provided that if any such date is not a Business Day, payment of
interest accrued through the applicable Interest Payment Date will be made on
the following Business Day unless that Business Day is in the following calendar
month, in which case the Interest Payment Date will be the immediately preceding
Business Day. The interest rate will be calculated quarterly on January 11,
April 11, July 11 and October 11 of each year. The interest rate will be reset
quarterly on January 13, April 13, July 13, and October 13 of each year (each of
these dates is called an "Interest Reset Date"). Interest is payable from the
date of issue of the Floating Rate Notes or from the most recent date to which
interest on such Floating Rate Note has been paid or duly provided for, until
the principal amount of the Floating Rate Note is paid or duly made available
for payment. Interest will be paid to the person in whose name the Floating Rate
Note is registered at the close of business 15 calendar days before the Interest
Payment Date. Interest on the Floating Rate Notes will be computed and paid on
the basis of a 360-day year and the actual number of days in each interest
payment period.
(g) "LIBOR" for each Interest Reset Date, other than for the initial
interest rate, will be determined by the calculation agent as follows:
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(i) LIBOR will be the offered rate for deposits in U.S. dollars
for the three month period which appears on "Telerate Page 3750" at
approximately 11:00 a.m., London time, two "London banking days" prior
to the applicable Interest Reset Date.
(ii) If this rate does not appear on the Telerate Page 3750, the
calculation agent will determine the rate on the basis of the rates at
which deposits in U.S. dollars are offered by four major banks in the
London interbank market (selected by the calculation agent after
consulting with us) at approximately 11:00 a.m., London time, two
London banking days prior to the applicable Interest Reset Date to
prime banks in the London interbank market for a period of three
months commencing on that Interest Reset Date and in principal amount
equal to an amount not less than $1,000,000 that is representative for
a single transaction in such market at such time. In such case, the
calculation agent will request the principal London office of each of
the aforesaid major banks to provide a quotation of such rate. If at
least two such quotations are provided, LIBOR for that Interest Reset
Date will be the average of the quotations. If fewer than two
quotations are provided as requested, LIBOR for that Interest Reset
Date will be the average of the rates quoted by three major banks in
New York, New York (selected by the calculation agent after consulting
with us) at approximately 11:00 a.m., New York time, two London
banking days prior to the applicable Interest Reset Date for loans in
U.S. dollars to leading banks for a period of three months commencing
on that Interest Reset Date and in a principal amount equal to an
amount not less than $1,000,000 that is representative for a single
transaction in such market at such time; provided that if fewer than
three quotations are provided as requested, for the period until the
next Interest Reset Date, LIBOR will be the same as the rate
determined on the immediately preceding Interest Reset Date.
The interest rate in effect from the date of issue to the first Interest
Reset Date will be based on three month LIBOR two London banking days prior to
the date of issue.
A "London banking day" is any day in which dealings in U.S. dollar deposits
are transacted in the London interbank market. "Telerate Page 3750" means the
display page so designated on the Telerate Service for the purpose of displaying
London interbank offered rates of major banks (or any successor page).
(h) The Offered Securities shall be issuable in denominations of $2,000 and
any integral multiple thereof.
(i) The Trustee shall also be the security registrar and paying agent for
the Offered Securities.
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(j) 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.
(k) 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.
(l) The Offered Securities 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 . Form Of Note. The form of the 5.375% Notes and the Floating
Rate Notes is attached hereto as Exhibit A.
Article 2
Miscellaneous
Section 2.01 . Definitions. Capitalized terms used but not defined in this
First 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 First
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture, this First Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
Section 2.03 . Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
Section 2.04 . Governing Law. This First Supplemental Indenture, the
Indenture and the Offered 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 First
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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Section 2.06 . Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, this First 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
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
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THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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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. 1 $650,000,000
CUSIP __________
XXXXX & McLENNAN COMPANIES, INC.
5.375% Senior Notes
due July 15, 2014
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 SIX HUNDRED AND FIFTY MILLION Dollars
($650,000,000) on July 15, 2014 and to pay interest on said principal sum from
July 14, 2004 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 January 15 and July 15 of each year commencing January 15, 2005
at the rate of 5.375% per annum until the
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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 January 1 or July 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
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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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: July 14, 2004
XXXXX & McLENNAN COMPANIES, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Attest:
By_________________________
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By_____________________________
Authorized Signatory
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
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(Insert Social Security number or other identifying number of assignee)
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(Please print or typewrite name and address, including zip code of assignee)
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the within Note of Xxxxx & XxXxxxxx Companies, Inc. and hereby does
irrevocably constitute and appoint
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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.
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XXXXX & McLENNAN COMPANIES, INC.
5.375% Senior Notes due 2014
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 July 14, 2004 among the Company, and The Bank
of New York, as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of July 14, 2004 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 First Supplemental Indenture.
The Notes may be redeemed in whole at any time or in part from time to
time, at the option of the Issuer, at a redemption price equal to the greater of
(i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of
the present values of the remaining scheduled payments of principal and interest
on the Notes to be redeemed (exclusive of interest accrued to the date of
redemption) discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at then current
Treasury Rate plus 15 basis points, plus accrued and unpaid interest on the
principal amount being redeemed to the redemption date (the "Redemption Price").
In case the Company shall desire to exercise such right to redeem all or, as the
case may be, a portion of the Notes, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the Notes to be
redeemed by mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 60 days before the date fixed for
redemption to such holders at their last addresses as they shall appear upon the
Security Register. Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the registered
holder received the notice. In any case, failure duly to give such notice to the
holder of any Note designated for redemption in whole or in part, or any defect
in the notice, shall not affect the validity of the proceedings for the
redemption of any other Note of such series.
Each such notice of redemption shall specify the date fixed for redemption
and the Redemption Price at which the Notes are to be redeemed, and shall state
that payment of the Redemption Price of such Notes to be redeemed will be made
at the office or agency of the Company in the Borough of Manhattan, the City and
State of New York, upon presentation and surrender of such Notes, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice and, that from and after said date interest will cease to accrue. If less
than all the Notes of a series are to be redeemed, the notice to the holders of
the Notes of that
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series to be redeemed in whole or in part shall specify the particular Notes to
be redeemed. In case any Note is to be redeemed in part only, the notice that
relates to such Note shall state the portion of the principal amount thereof to
be redeemed, and shall state that on and after the redemption date, upon
surrender of such security, a new Note of such series in principal amount equal
to the unredeemed portion thereof will be issued.
If less than all the Notes are to be redeemed, the Company shall give the
Trustee at least 45 days' notice in advance of the date fixed for redemption as
to the aggregate principal amount of Notes to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the selection of
a portion or portions (equal to two thousand U.S. dollars ($2,000) or any
integral multiple thereof) of the principal amount of such Notes of a
denomination larger than $2,000, the Notes to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the Notes to be
redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the Notes
for redemption and to give notice of redemption in the manner set forth in this
Note, such notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Security Register, transfer books
or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required
under the provisions stated herein.
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
18
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.
19
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.
20
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.
21
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. 2 $500,000,000
CUSIP __________
XXXXX & XxXXXXXX COMPANIES, INC.
Floating Rate Senior Notes
due 2007
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 FIVE HUNDRED MILLION Dollars
($500,000,000) on July 13, 2007 and to pay interest on said principal sum from
July 14, 2004 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,
quarterly in arrears on January 13, April 13, July 13 and October 13 of each
year commencing October 13, 2004 at the rate of "LIBOR" plus 0.14% 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 if enforceable under
22
applicable law) on any overdue installment of interest. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year and the actual number of days in each interest payment period. 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
15 calendar days before the 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.
"LIBOR" for each Interest Payment Date, other than for the initial interest
rate, will be determined by the calculation agent as follows:
(a) LIBOR will be the offered rate for deposits in U.S. dollars for the
three month period which appears on "Telerate Page 3750" at approximately 11:00
a.m., London time, two "London banking days" prior to the applicable Interest
Payment Date.
(b) If this rate does not appear on the Telerate Page 3750, the calculation
agent will determine the rate on the basis of the rates at which deposits
23
in U.S. dollars are offered by four major banks in the London interbank market
(selected by the calculation agent after consulting with us) at approximately
11:00 a.m., London time, two London banking days prior to the applicable
Interest Payment Date to prime banks in the London interbank market for a period
of three months commencing on that Interest Payment Date and in principal amount
equal to an amount not less than $1,000,000 that is representative for a single
transaction in such market at such time. In such case, the calculation agent
will request the principal London office of each of the aforesaid major banks to
provide a quotation of such rate. If at least two such quotations are provided,
LIBOR for that Interest Payment Date will be the average of the quotations. If
fewer than two quotations are provided as requested, LIBOR for that Interest
Payment Date will be the average of the rates quoted by three major banks in New
York, New York (selected by the calculation agent after consulting with us) at
approximately 11:00 a.m., New York time, two London banking days prior to the
applicable Interest Payment Date for loans in U.S. dollars to leading banks for
a period of three months commencing on that Interest Payment Date and in a
principal amount equal to an amount not less than $1,000,000 that is
representative for a single transaction in such market at such time; provided
that if fewer than three quotations are provided as requested, for the period
until the next Interest Payment Date, LIBOR will be the same as the rate
determined on the immediately preceding Interest Payment Date.
The interest rate in effect from the date of issue to the first Interest
Payment Date will be based on three month LIBOR two London banking days prior to
the date of issue.
A "London banking day" is any day in which dealings in U.S. dollar deposits
are transacted in the London interbank market. "Telerate Page 3750" means the
display page so designated on the Telerate Service for the purpose of displaying
London interbank offered rates of major banks (or any successor page).
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.
24
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated July 14, 2004
XXXXX & XxXXXXXX COMPANIES, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Attest:
By_______________________
Name:
Title:
25
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By_____________________________
Authorized Signatory
26
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.
27
XXXXX & XXXXXXXX COMPANIES, INC.
Floating Rate Note 2007
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 July 14, 2004 among the Company, and The Bank
of New York, as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of July 14, 2004 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 First 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
28
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.
29
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.
30
