<PAGE> 1
As filed with the Securities and Exchange Commission on November 18, 1997.
REGISTRATION NO. 333-27803
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST-EFFECTIVE
AMENDMENT NO. 1*
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
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CONSECO, INC. INDIANA 35-1468632
CONSECO FINANCING TRUST IV DELAWARE APPLIED FOR
CONSECO FINANCING TRUST V DELAWARE APPLIED FOR
CONSECO FINANCING TRUST VI DELAWARE APPLIED FOR
CONSECO FINANCING TRUST VII DELAWARE APPLIED FOR
(Exact name of the Registrants (State or other (I.R.S. Employer
as specified in their respective charters) jurisdiction Identification No.)
of incorporation or
organization)
</TABLE>
11825 N. Pennsylvania St.
Carmel, Indiana 46032
(317) 817-6163
(Address, including zip code, and telephone number, including
area code, of each Registrant's principal executive offices)
---------------------
John J. Sabl
Conseco, Inc.
11825 N. Pennsylvania St.
Carmel, Indiana 46032
(317) 817-6163
(Name, address, including zip code, and telephone number,
including area code, of agent for service for each Registrant)
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective, as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
* THIS POST-EFFECTIVE AMENDMENT NO. 1 (THE "AMENDMENT") TO THE REGISTRANT'S
REGISTRATION STATEMENT NO. 333-27803 IS BEING FILED PURSUANT TO RULE 462(D)
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR THE SOLE PURPOSE OF FILING
EXHIBITS AND, ACCORDINGLY, SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING WITH
THE SECURITIES AND EXCHANGE COMMISSION.
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 424,242
New York Stock Exchange listing fee......................... 50,000
Legal fees and expenses..................................... 200,000
Accounting fees and expenses................................ 300,000
Printing and engraving expenses............................. 350,000
Trustee's fees and expenses................................. 80,000
Rating agencies' fees....................................... 350,000
Blue sky fees and expenses.................................. 60,000
Miscellaneous............................................... 185,758
----------
Total....................................................... $2,000,000
==========
</TABLE>
Except for the SEC registration fee, all of the foregoing are estimates.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Indiana Business Corporation Law grants authorization to Indiana
corporations to indemnify officers and directors for their conduct if such
conduct was in good faith and was in the corporation's best interests or, in the
case of directors, was not opposed to such best interests, and permits the
purchase of insurance in this regard. In addition, the shareholders of a
corporation may approve the inclusion of other or additional indemnification
provisions in the articles of incorporation and by-laws.
The By-laws of Conseco provides for the indemnification of any person made
a party to any action, suit or proceeding by reason of the fact that he is a
director, officer or employee of Conseco, unless it is adjudged in such action,
suit or proceeding that such person is liable for negligence or misconduct in
the performance of his duties. Such indemnification shall be against the
reasonable expenses, including attorneys' fees, incurred by such person in
connection with the defense of such action, suit or proceeding. In some
circumstances, Conseco may reimburse any such person for the reasonable costs of
settlement of any such action, suit or proceeding if a majority of the members
of the Board of Directors not involved in the controversy shall determine that
it was in the interests of Conseco that such settlement be made and that such
person was not guilty of negligence or misconduct.
The above discussion of Conseco's By-laws and the Indiana Business
Corporation Law is not intended to be exhaustive and is qualified in its
entirety by such By-laws and the Indiana Business Corporation Law.
The Declaration of Trust for each of Conseco Financing Trust IV, Conseco
Financing Trust V, Conseco Financing Trust VI and Conseco Financing Trust VII
(the "Trusts") provides that no Property Trustee or any of its Affiliates,
Delaware Trustee or any of its Affiliates, or any officer, director,
shareholder, member, partner, employee, representative, custodian, nominee or
agent of the Property Trustee or the Delaware Trustee (each a "Fiduciary
Indemnified Person"), and no Regular Trustee, Affiliate of any Regular Trustee,
or any officer, director, shareholder, member, partner, employee, representative
or agent of any Regular Trustee or any Affiliate thereof, or any employee or
agent of any of the Trusts or any of their Affiliates (each a "Company
Indemnified Person") shall be liable, responsible or accountable in damages or
otherwise to any of such Trusts or any officer, director, shareholder, partner,
member, representative, employee or agent of any such Trust or its Affiliates or
to any holder of Preferred Securities for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Fiduciary Indemnified
Person or Company Indemnified Person in good faith on behalf of any of such
Trusts and in a manner such Fiduciary Indemnified Person or Company Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Fiduciary
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<PAGE> 3
Indemnified Person or Company Indemnified Person by such Declaration or by law,
except that a Fiduciary Indemnified Person or Company Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Fiduciary Indemnified Person's or Company Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
The Declaration of Trust for each of such Trusts also provides that to the
full extent permitted by law, the Company shall indemnify any Company
Indemnified Person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of any such Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
any such Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Each of the Declaration of
Trusts also provides that to the full extent permitted by law, the Company shall
indemnify any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of any such trust to procure a judgment in its favor by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of any such trust and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to any such trust
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper. The
Declaration of Trust for each such Trust further provides that expenses
(including attorneys' fees) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in the immediately preceding two sentences shall be paid
by the Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Company as authorized in any
such Declaration.
The Declaration of Trust for each Trust also provides that the Company
shall indemnify each Fiduciary Indemnified Person against any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts under
any such Trust, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers or
duties thereunder.
ITEM 16. EXHIBITS
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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1.1 Form of Purchase Agreement -- Debt Securities is
incorporated herein by reference to Exhibit 1.1 to the
Registration Statement on Form S-3 of the Registrant (No.
33-53095) ((i) An Underwriting Agreement relating to
Securities to be distributed outside the United States or
for Securities denominated in foreign currencies or foreign
currency units or (ii) any Selling Agency or Distribution
Agreement with any Agent will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.)
1.2 Form of Purchase Agreement -- Equity is incorporated herein
by reference to Exhibit 1.2 to the Registration Statement on
Form S-3 of the Registrant (No. 33-53095)
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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<C> <S>
1.3 Form of Distribution Agreement by and between Conseco, Inc.
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Chase Securities Inc., Deutsche Morgan
Grenfell Inc., First Union Capital Markets Corp., Goldman,
Sachs & Co., NationsBanc Montgomery Securities, Inc.,
Salomon Brothers Inc and Smith Barney, Inc. pursuant to
which the medium-term notes are to be distributed.
3.1 Amended and Restated Articles of Incorporation of Conseco,
Inc. were filed with the Commission as Exhibit 3.1 to the
Registration Statement on Form S-2, No. 33-8498; Articles of
Amendment thereto, as filed September 9, 1988 with the
Indiana Secretary of State, were filed with the Commission
as Exhibit 3.1.1 to Conseco's Annual Report on Form 10-K for
1988; Articles of Amendment thereto, as filed June 13, 1989
with the Indiana Secretary of State, were filed with the
Commission as Exhibit 3.1.2 to Conseco's Report on Form 10-Q
for the quarter ended June 30, 1989; and Articles of
Amendment thereto, as filed June 29, 1993 with the Indiana
Secretary of State, were filed with the Commission as
Exhibit 3.1.3 to Conseco's Report on Form 10-Q for the
quarter ended June 30, 1993, and Articles of Amendment
thereto relating to the PRIDES were filed with the
Commission as Exhibit 3.(i).3 to the Registrant's Report on
Form 8-K dated January 17, 1996, and are incorporated herein
by this reference.
3.2 Amended and Restated Bylaws of Conseco, Inc. effective
February 10, 1986 were filed with the Commission as Exhibit
3.2 to its Registration Statement of Form S-1, No. 33-4367,
and an Amendment thereto was filed with the Commission as
Exhibit 3.2.1 to Amendment No. 2 to its Registration
Statement of Form S-1, No. 33-4367; and are incorporated
herein by this reference.
4.1 Senior Indenture, dated November 13, 1997, by and between
Conseco, Inc. and LTCB Trust Company, as Trustee, pursuant
to which the Senior Debt Securities are to be issued.
4.2 Subordinated Indenture, dated as of November 14, 1996
between Conseco, Inc. and Fleet National Bank, as Trustee,
pursuant to which the Subordinated Debentures are to be
issued is incorporated herein by reference to Exhibit 4.17.1
to Conseco's Current Report on Form 8-K dated November 19,
1996.
4.3 Form of Deposit Agreement is incorporated herein by
reference to Exhibit 4.3 to the Registration Statement on
Form S-3 of the Registrant (No. 33-53095)
4.4 Certificate of Trust of Conseco Financing Trust IV*
4.5 Declaration of Trust of Conseco Financing Trust IV*
4.6 Certificate of Trust of Conseco Financing Trust V*
4.7 Declaration of Trust of Conseco Financing Trust V*
4.8 Certificate of Trust of Conseco Financing Trust VI*
4.9 Declaration of Trust of Conseco Financing Trust VI*
4.10 Certificate of Trust of Conseco Financing Trust VII*
4.11 Declaration of Trust of Conseco Financing Trust VII*
4.12 Form of Amended and Restated Declaration of Trust is
incorporated by reference to Exhibit 4.10 to Amendment No. 2
to the Registration Statement on Form S-3 of Conseco (No.
333-14991)
4.13 Form of Preferred Securities Guarantee Agreement by Conseco,
Inc. is incorporated by reference to Exhibit 4.11 to
Amendment No. 2 to the Registration Statement on Form S-3 of
Conseco (No. 333-14991)
4.14 Form of Debt Security
The form or forms of such Debt Securities with respect to
each particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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4.15 Form of Preferred Stock
Any amendment to the Company's Articles of Incorporation
authorizing the creation of any series of Preferred Stock or
Depositary Shares representing such shares of Preferred
Stock and setting forth the rights, preferences and
designations thereof will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.16 Form of Warrant Agreement is incorporated herein by
reference to Exhibit 4.4 to the Registration Statement on
Form S-3 of the Registrant (No. 33-53095).
4.17 Form of Preferred Security is incorporated by reference to
Exhibit 4.15 to Amendment No. 1 to the Registration
Statement on Form S-3 of Conseco (No. 333-14991)
4.18 Form of Supplemental Indenture is incorporated by reference
to Exhibit 4.16 to Amendment No. 1 to the Registration
Statement on Form S-3 of Conseco (No. 333-14991)
4.19 Form of % Subordinated Deferrable Interest Debenture due
, 2027 is incorporated by reference to Exhibit
4.17 to Amendment No. 1 to the Registration Statement on
Form S-3 of Conseco (No. 333-14991)
4.20 Form of Senior Medium-Term Note, Series A (fixed rate)
4.21 Form of Subordinated Medium-Term Note, Series A (fixed rate)
4.22 Form of Senior Medium-Term Note, Series A (floating rate)
4.23 Form of Subordinated Medium-Term Note, Series A (floating
rate)
5.1 Opinion of Karl W. Kindig, Esquire*
5.2 Opinion of Richards, Layton & Finger, P.A.*
12.1 Computation of Ratios of Earnings to Fixed Charges,
Preferred Dividends and Distributions on Company-obligated
Mandatorily Redeemable Preferred Securities of Subsidiary
Trusts*
23.1 Consent of Karl W. Kindig, Esquire (included in Exhibit 5.1
hereto)*
23.2 Consent of Coopers & Lybrand L.L.P. with respect to the
financial statements of Conseco, Inc.
23.3 Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2 hereto)*
24.1 Powers of Attorney of Stephen C. Hilbert, Rollin M. Dick,
James S. Adams, Ngaire E. Cuneo, Donald F. Gongaware and
Dennis E. Murray, Sr. were included on the signature page of
the original filing of this Registration Statement and are
incorporated herein by reference
25.1 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of LTCB Trust Company, as
Trustee under the Indenture.
25.2 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Fleet National Bank,
as Trustee under the Subordinated Indenture*
25.3 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Fleet National Bank,
as Trustee under the Declaration of Trust of Conseco
Financing Trust IV, the Declaration of Trust of Conseco
Financing Trust V, the Declaration of Trust of Conseco
Financing Trust VI and the Declaration of Trust of Conseco
Financing Trust VII*
25.4 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Fleet National Bank,
as Trustee of the Preferred Securities Guarantees for the
benefit of the holders of Preferred Securities of Conseco
Financing Trust IV, Conseco Financing Trust V, Conseco
Financing Trust VI and Conseco Financing Trust VII*
</TABLE>
* Filed previously.
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ITEM 17. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) If the securities to be registered are to be offered at competitive
bidding, the undersigned Registrants hereby undertake: (1) to use its
best efforts to distribute prior to the opening of bids, to prospective
bidders, underwriters, and dealers, a reasonable number of copies of a
prospectus which at that time meets the requirements of Section 10(a) of
the Act, and relating to the securities offered at competitive bidding,
as contained in the Registration Statement, together with any
supplements thereto, and (2) to file an amendment to the Registration
Statement reflecting the results of bidding, the terms of the reoffering
and related matters to the extent required by the applicable form, not
later than the first use, authorized by the issuer after the opening of
bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the
issuer and no reoffering of such securities by the purchasers is
proposed to be made.
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(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing
provisions, or otherwise, each of the Registrants has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of
expenses incurred or paid by a director, officer or controlling person
of the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrants
will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication
of such issue.
(e) The undersigned Registrants hereby undertake that (1) for purposes of
determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective;
and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(f) The undersigned Registrants hereby undertake to file, if necessary, an
application for the purpose of determining the eligibility of the
Trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act of 1939, as amended, in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of such Act.
(g) The undersigned Registrants hereby undertake to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are
not set forth in the prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Conseco, Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Carmel, State of Indiana,
on November 17, 1997.
CONSECO, INC.
By: /S/ ROLLIN M. DICK
------------------------------------
Rollin M. Dick,
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
* Director, Chairman of the Board, November 17, 1997
- - --------------------------------------------- President and Chief Executive
Stephen C. Hilbert Officer
(Principal Executive Officer of
Conseco, Inc.)
* Director, Executive Vice President November 17, 1997
- - --------------------------------------------- and Chief Financial Officer
Rollin M. Dick (Principal Financial Officer
of Conseco, Inc.)
* Senior Vice President, Chief November 17, 1997
- - --------------------------------------------- Accounting Officer and Treasurer
James S. Adams (Principal Accounting Officer
of Conseco, Inc.)
* Director November 17, 1997
- - ---------------------------------------------
Ngaire E. Cuneo
Director
- - ---------------------------------------------
David R. Decatur
Director
- - ---------------------------------------------
M. Phil Hathaway
* Director November 17, 1997
- - ---------------------------------------------
Donald F. Gongaware
Director
- - ---------------------------------------------
James D. Massey
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director November 17, 1997
- - ---------------------------------------------
Dennis E. Murray, Sr.
Director
- - ---------------------------------------------
John M. Mutz
By: /s/ KARL W. KINDIG
---------------------------------------
Karl W. Kindig,
Attorney-in-Fact
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Conseco
Financing Trust IV certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Carmel,
State of Indiana, on November 17, 1997.
CONSECO FINANCING TRUST IV
By: /s/ STEPHEN C. HILBERT
------------------------------------
Stephen C. Hilbert, as Trustee
By: /s/ ROLLIN M. DICK
------------------------------------
Rollin M. Dick, as Trustee
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Conseco
Financing Trust V certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Carmel,
State of Indiana, on November 17, 1997.
CONSECO FINANCING TRUST V
By: /s/ STEPHEN C. HILBERT
------------------------------------
Stephen C. Hilbert, as Trustee
By: /s/ ROLLIN M. DICK
------------------------------------
Rollin M. Dick, as Trustee
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Conseco
Financing Trust VI certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Carmel,
State of Indiana, on November 17, 1997.
CONSECO FINANCING TRUST VI
By: /s/ STEPHEN C. HILBERT
------------------------------------
Stephen C. Hilbert, as Trustee
By: /s/ ROLLIN M. DICK
------------------------------------
Rollin M. Dick, as Trustee
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Conseco
Financing Trust VII certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Carmel,
State of Indiana, on November 17, 1997.
CONSECO FINANCING TRUST VII
By: /s/ STEPHEN C. HILBERT
------------------------------------
Stephen C. Hilbert, as Trustee
By: /s/ ROLLIN M. DICK
------------------------------------
Rollin M. Dick, as Trustee
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<PAGE> 14
EXHIBIT INDEX
TO REGISTRATION STATEMENT
ON FORM S-3
CONSECO, INC.
<TABLE>
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- - -------------- ----------------------
<C> <S>
1.1 Form of Purchase Agreement -- Debt Securities is
incorporated herein by reference to Exhibit 1.1 to the
Registration Statement on Form S-3 of the Registrant (No.
33-53095) ((i) An Underwriting Agreement relating to
Securities to be distributed outside the United States or
for Securities denominated in foreign currencies or foreign
currency units or (ii) any Selling Agency or Distribution
Agreement with any Agent will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.)
1.2 Form of Purchase Agreement -- Equity is incorporated herein
by reference to Exhibit 1.2 to the Registration Statement on
Form S-3 of the Registrant (No. 33-53095)
1.3 Form of Distribution Agreement by and between Conseco, Inc.
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Chase Securities Inc., Deutsche Morgan
Grenfell Inc., First Union Capital Markets Corp., Goldman,
Sachs & Co., NationsBanc Montgomery Securities, Inc.,
Salomon Brothers Inc and Smith Barney, Inc. pursuant to
which the medium-term notes are to be distributed.
3.1 Amended and Restated Articles of Incorporation of Conseco,
Inc. were filed with the Commission as Exhibit 3.1 to the
Registration Statement on Form S-2, No. 33-8498; Articles of
Amendment thereto, as filed September 9, 1988 with the
Indiana Secretary of State, were filed with the Commission
as Exhibit 3.1.1 to Conseco's Annual Report on Form 10-K for
1988; Articles of Amendment thereto, as filed June 13, 1989
with the Indiana Secretary of State, were filed with the
Commission as Exhibit 3.1.2 to Conseco's Report on Form 10-Q
for the quarter ended June 30, 1989; and Articles of
Amendment thereto, as filed June 29, 1993 with the Indiana
Secretary of State, were filed with the Commission as
Exhibit 3.1.3 to Conseco's Report on Form 10-Q for the
quarter ended June 30, 1993, and Articles of Amendment
thereto relating to the PRIDES were filed with the
Commission as Exhibit 3.(i).3 to the Registrant's Report on
Form 8-K dated January 17, 1996, and are incorporated herein
by this reference.
3.2 Amended and Restated Bylaws of Conseco, Inc. effective
February 10, 1986 were filed with the Commission as Exhibit
3.2 to its Registration Statement of Form S-1, No. 33-4367,
and an Amendment thereto was filed with the Commission as
Exhibit 3.2.1 to Amendment No. 2 to its Registration
Statement of Form S-1, No. 33-4367; and are incorporated
herein by this reference.
4.1 Senior Indenture, dated November 13, 1997, by and between
Conseco, Inc. and LTCB Trust Company, as Trustee, pursuant
to which the Senior Debt Securities are to be issued.
4.2 Subordinated Indenture, dated as of November 14, 1996
between Conseco, Inc. and Fleet National Bank, as Trustee,
pursuant to which the Subordinated Debentures are to be
issued is incorporated herein by reference to Exhibit 4.17.1
to Conseco's Current Report on Form 8-K dated November 19,
1996.
4.3 Form of Deposit Agreement is incorporated herein by
reference to Exhibit 4.3 to the Registration Statement on
Form S-3 of the Registrant (No. 33-53095)
4.4 Certificate of Trust of Conseco Financing Trust IV*
4.5 Declaration of Trust of Conseco Financing Trust IV*
4.6 Certificate of Trust of Conseco Financing Trust V*
4.7 Declaration of Trust of Conseco Financing Trust V*
4.8 Certificate of Trust of Conseco Financing Trust VI*
</TABLE>
II-13
<PAGE> 15
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- - -------------- ----------------------
<S> <C>
4.9 Declaration of Trust of Conseco Financing Trust VI*
4.10 Certificate of Trust of Conseco Financing Trust VII*
4.11 Declaration of Trust of Conseco Financing Trust VII*
4.12 Form of Amended and Restated Declaration of Trust is
incorporated by reference to Exhibit 4.10 to Amendment No. 2
to the Registration Statement on Form S-3 of Conseco (No.
333-14991)
4.13 Form of Preferred Securities Guarantee Agreement by Conseco,
Inc. is incorporated by reference to Exhibit 4.11 to
Amendment No. 2 to the Registration Statement on Form S-3 of
Conseco (No. 333-14991)
4.14 Form of Debt Security
The form or forms of such Debt Securities with respect to
each particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.15 Form of Preferred Stock
Any amendment to the Company's Articles of Incorporation
authorizing the creation of any series of Preferred Stock or
Depositary Shares representing such shares of Preferred
Stock and setting forth the rights, preferences and
designations thereof will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference.
4.16 Form of Warrant Agreement is incorporated herein by
reference to Exhibit 4.4 to the Registration Statement on
Form S-3 of the Registrant (No. 33-53095).
4.17 Form of Preferred Security is incorporated by reference to
Exhibit 4.15 to Amendment No. 1 to the Registration
Statement on Form S-3 of Conseco (No. 333-14991)
4.18 Form of Supplemental Indenture is incorporated by reference
to Exhibit 4.16 to Amendment No. 1 to the Registration
Statement on Form S-3 of Conseco (No. 333-14991)
4.19 Form of % Subordinated Deferrable Interest Debenture due
, 2027 is incorporated by reference to Exhibit
4.17 to Amendment No. 1 to the Registration Statement on
Form S-3 of Conseco (No. 333-14991)
4.20 Form of Senior Medium-Term Note, Series A (fixed rate)
4.21 Form of Subordinated Medium-Term Note, Series A (fixed rate)
4.22 Form of Senior Medium-Term Note, Series A (floating rate)
4.23 Form of Subordinated Medium-Term Note, Series A (floating
rate)
5.1 Opinion of Karl W. Kindig, Esquire*
5.2 Opinion of Richards, Layton & Finger, P.A.*
12.1 Computation of Ratios of Earnings to Fixed Charges,
Preferred Dividends and Distributions on Company-obligated
Mandatorily Redeemable Preferred Securities of Subsidiary
Trusts*
23.1 Consent of Karl W. Kindig, Esquire (included in Exhibit 5.1
hereto)*
23.2 Consent of Coopers & Lybrand L.L.P. with respect to the
financial statements of Conseco, Inc.
23.3 Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2 hereto)*
24.1 Powers of Attorney of Stephen C. Hilbert, Rollin M. Dick,
James S. Adams, Ngaire E. Cuneo, Donald F. Gongaware and
Dennis E. Murray, Sr. were included on the signature page of
the original filing of this Registration Statement and are
incorporated herein by reference
25.1 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of LTCB Trust Company, as
Trustee under the Indenture.
</TABLE>
II-14
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- - -------------- ----------------------
<S> <C>
25.2 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Fleet National Bank,
as Trustee under the Subordinated Indenture*
25.3 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Fleet National Bank,
as Trustee under the Declaration of Trust of Conseco
Financing Trust IV, the Declaration of Trust of Conseco
Financing Trust V, the Declaration of Trust of Conseco
Financing Trust VI and the Declaration of Trust of Conseco
Financing Trust VII*
25.4 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of Fleet National Bank,
as Trustee of the Preferred Securities Guarantees for the
benefit of the holders of Preferred Securities of Conseco
Financing Trust IV, Conseco Financing Trust V, Conseco
Financing Trust VI and Conseco Financing Trust VII*
</TABLE>
* Filed previously.
II-15
<PAGE> 1
EXHIBIT 1.3
CONSECO, INC.
Senior Medium-Term Notes, Series A
Subordinated Medium-Term Notes, Series A
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
November __, 1997
MERRILL LYNCH & CO. Chase Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith 270 Park Avenue
Incorporated New York, New York 10017
World Financial Center
North Tower, 10th Floor
New York, New York 10281
Deutsche Morgan Grenfell Inc. First Union Capital Markets Corp.
31 W. 52nd Street One First Union Center, TW-10
New York, New York 10019 301 South College Street
Charlotte, North Carolina 28288
Goldman, Sachs & Co. NationsBanc Montgomery Securities, Inc.
85 Broad Street Capital Markets Services
New York, New York 10004 NC1-007-07-01
Charlotte, North Carolina 28255
Salomon Brothers Inc Smith Barney, Inc.
7 World Trade Center 390 Greenwich St.
New York, New York 10048 New York, New York 10013
Dear Sirs:
Conseco, Inc., an Indiana corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities Inc., Deutsche Morgan Grenfell Inc., First Union
Capital Markets Corp., Goldman, Sachs & Co., NationsBanc Montgomery Securities,
Inc., Salomon Brothers Inc and Smith Barney, Inc. (each, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Senior Medium-Term Notes, Series A Due Nine Months or More From Date of
Issue (the "Senior Notes") and its Subordinated Medium-Term Notes, Series A Due
Nine Months or More From Date of Issue (the "Subordinated Notes" and, together
with the Senior Notes, the "Notes"). The Senior Notes are to be issued pursuant
to an Indenture, dated as of November 13, 1997, as amended or modified from time
to time (the "Senior Indenture"), between the Company and LTCB Trust Company, as
trustee (the "Senior Trustee"). The Subordinated Notes are to be issued pursuant
to an Indenture, dated as of November 14, 1996, as amended or modified from time
to time (the "Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures") between the Company and Fleet National Bank, as trustee (the
"Subordinated Trustee" and, together with the Senior Trustee, the "Trustees").
As of the date hereof, the Company has authorized the issuance and sale of up to
U.S. $1,000,000,000 aggregate initial offering price of Notes (or its
equivalent, based upon the exchange rate on the applicable trade date in such
foreign or composite currencies as the Company shall designate at the time of
issuance) to or through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents or other agents who from time to time become parties to this
Agreement or another agreement with terms that are the same in all material
<PAGE> 2
respects to the terms contained herein pursuant to the terms of this Agreement,
all as though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-27803) and a
registration statement on Form S-3 (No. 333-14991) for the registration of
preferred stock, depository shares, common stock, warrants and debt securities,
including the Notes, under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed such post-effective amendments thereto
as may be required prior to any acceptance by the Company of an offer for the
purchase of Notes. Such registration statements (as so amended, if applicable)
have been declared effective by the Commission and each Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The registration statement (No. 333-27803) (as so amended, if applicable) is
referred to herein as the "Registration Statement" and the registration
statement (No. 333-14991) (as so amended, if applicable) is referred to herein
as the "Previous Registration Statement," and the final prospectus and all
applicable amendments or supplements thereto (including the final prospectus
supplement and pricing supplement relating to the offering of Notes), in the
form first furnished to the applicable Agent(s), are collectively referred to
herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement," the "Previous Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to any acceptance by the Company of an offer for the purchase
of Notes; provided, further, that if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to the "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the applicable registration statement became
effective and any prospectus furnished by the Company after the registration
statements became effective and before any acceptance by the Company of an offer
for the purchase of Notes which omitted information to be included upon pricing
in a form of prospectus filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations. For purposes of this Agreement, all references to the
Registration Statement, Previous Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "disclosed", "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Previous
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, Previous
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold to or through
one or more of the Agents and/or to or through other agents on terms that are
the same in all material respects to the terms contained herein.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial
2
<PAGE> 3
offering price of Notes registered pursuant to the Registration Statement. The
Agents shall have no responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company may accept or reject any offer for the purchase of Notes, in whole or in
part. Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been solicited by
such Agent on an agency basis and accepted by the Company, the Company shall (i)
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to such Agent any commission
to which it would otherwise be entitled absent such default.
(e) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal is referred to herein as a "Settlement Date"), and as of
any time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due Qualification of
the Company. The Company has been duly organized and is validly
existing as a corporation under the laws of Indiana with corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
this Agreement and consummate the transactions contemplated in the
Prospectus; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise (a "Material Adverse
Effect"); all of the issued and outstanding shares of capital stock of
the Company have been duly authorized and are validly issued, fully
paid and non-assessable; and none of the outstanding shares of capital
stock of the Company were issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(ii) Due Incorporation, Good Standing and Due Qualification
of Significant Subsidiaries. Each significant subsidiary (as such
term is defined in Rule 1-02 of Regulation S-X promulgated under the
1933 Act), if any (each,
3
<PAGE> 4
a "Significant Subsidiary") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect; except as stated in the
Prospectus, all of the issued and outstanding shares of capital stock
of each Significant Subsidiary has been duly authorized and is validly
issued, fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any material
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) Registration Statements and Prospectus. The Company
meets the requirements for use of Form S-3 under the 1933 Act; each of
the Registration Statement (including any Rule 462(b) Registration
Statement) and the Previous Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement (including any Rule 462(b) Registration
Statement) or the Previous Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with; each Indenture has been
duly qualified under the 1939 Act; at the respective times that the
Registration Statement, the Previous Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendment thereto
(including the filing of the Company's most recent Annual Report on
Form 10-K with the Commission (the "Annual Report on Form 10-K"))
became effective and at each Representation Date, the Registration
Statement (including any Rule 462(b) Registration Statement), the
Previous Registration Statement and any amendments thereto complied and
will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
each preliminary prospectus and prospectus filed as part of the
Registration Statement or the Previous Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations; each preliminary prospectus and
the Prospectus delivered to the applicable Agent(s) for use in
connection with the offering of Notes are identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T;
and at the date hereof, at the date of the Prospectus and at each
Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to (1) statements in or omissions from the Registration
Statement, the Previous Registration Statement or the Prospectus made
in reliance upon and in conformity with information furnished to the
Company in writing by the Agents expressly for use in the Registration
Statement, the Previous Registration Statement or the Prospectus or (2)
the Statements of Qualification and Eligibility filed as exhibits to
the Registration Statement or the Previous Registration Statement (the
"Form T-1").
(iv) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations").
(v) Independent Accountants. Coopers & Lybrand, LLP, the
accountants who certified the financial state ments and any supporting
schedules thereto of the Company included in the Registration
Statement, the Previous Registration Statement and the Prospectus, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(vi) Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement, the
Previous Registration Statement and the Prospectus, together with the
related schedules
4
<PAGE> 5
and notes present fairly the consolidated financial position of the
Company and its subsidiaries at the dates indicated and the
consolidated statements of operations, shareholders' equity and cash
flows of the Company and its subsidiaries for the periods specified;
except as stated therein, such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved; the
supporting schedules, if any, included in the Registration Statement,
the Previous Registration Statement and the Prospectus present fairly
in accordance with GAAP the information required to be stated therein;
any selected financial data and the summary financial information
included in the Registration Statement, the Previous Registration
Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement,
the Previous Registration Statement and the Prospectus; and any pro
forma consolidated financial statements of the Company and its
subsidiaries and the related notes thereto included in the Registration
Statement, the Previous Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(vii) Statutory Financials. The statutory financial statements
of each of the Company's insurance subsidiaries, from which certain
ratios and other statistical data which may be contained in the
Registration Statement or the Previous Registration Statement from time
to time have been derived, have for each relevant period been prepared
in accordance with accounting practices prescribed or permitted by the
National Association of Insurance Commissioners, and with respect to
each insurance subsidiary, the appropriate Insurance Department of the
state of domicile of such insurance subsidiary, and such accounting
practices have been applied on a consistent basis throughout the
periods involved, except as disclosed therein.
(viii) No Material Changes. Since the respective dates as of
which information is given in the Registration Statement, the Previous
Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no event or occurrence that would result in a
Material Adverse Effect.
(ix) Authorization, etc. of this Agreement, the Indentures and
the Notes. This Agreement has been duly authorized, executed and
delivered by the Company; each Indenture has been duly authorized,
executed and delivered by the Company and is a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally,
(2) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), (3) requirements that
a claim with respect to any debt securities issued under the Indenture
that are payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (4) governmental authority to limit,
delay or prohibit the making of payments outside the United States; the
Notes have been duly authorized by the Company for offer, sale,
issuance and delivery pursuant to this Agreement and, when issued,
authenticated and delivered in the manner provided for in the
appropriate Indenture and delivered against payment of the
consideration therefor, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by (1) bank ruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, (2) general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), (3)
requirements that a claim with respect to any Notes payable in a
foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a
rate or exchange prevailing on a date determined pursuant to applicable
law or (4) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes will be
substantially in a form previously certified to the Agents and
contemplated by the appropriate Indenture; and each holder of Notes
will be entitled to the benefits of the appropriate Indenture.
5
<PAGE> 6
(x) Descriptions of the Indentures and the Notes. The
Indentures and the Notes conform and will conform as of the date such
Notes are purchased in all material respects to the statements relating
thereto contained in the Prospectus and are substantially in the form
filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement and the Previous Registration Statement.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its Significant Subsidiaries is in violation of the
provisions of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, each Indenture, the Notes
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated by the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and
sale of the Notes and the use of proceeds therefrom as described in the
Prospectus) and the compliance by the Company with its obligations
hereunder and under the Indentures, the Notes and such other agreements
or instruments have been duly authorized by all necessary corporate
action and, in each case, do not and will not, whether with or without
the giving of notice or the passage of time or both, conflict with or
constitute a breach of, or default or event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its Significant Subsidiaries (a
"Repayment Event") under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its Significant Subsidiaries
pursuant to, any Agreements and Instruments, except, in each case, for
such conflicts, breaches or defaults that would not result in a
Material Adverse Effect, nor will such action result in any violation
of any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their assets, properties or
operations, except for such violations that would not result in a
Material Adverse Effect, or any violation of the provisions of the
charter or by-laws of the Company or any of its Significant
Subsidiaries.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its Significant Subsidiaries which is required to be
disclosed in the Registration Statement and the Prospectus (other than
as stated therein), or which may reasonably be expected to result in a
Material Adverse Effect, or which may reasonably be expected to
materially and adversely affect the performance by the Company of its
obligations under this Agreement, the Indentures and the Notes or the
consummation of the transactions contemplated in the Prospectus.
(xiii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such material permits, licenses, approvals,
consents and other authorizations issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies (including,
without limitation, insurance licenses from the insurance departments
of the various states where the subsidiaries write insurance business
(the "Insurance Licenses")) necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Insurance Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect; all of the Insurance Licenses are
valid and in full force and effect, except where the invalidity of such
Insurance Licenses or the failure of such Insurance Licenses to be in
full force and effect would not result in a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Insurance Licenses which, singly or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect.
(xiv) No Filings, Regulatory Approvals, etc. No filing with,
or approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental authority
or agency, domestic or foreign,
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is necessary or required for the performance by the Company of its
obligations under this Agreement, the Indentures and the Notes or in
connection with the transactions contemplated in the Prospectus, except
such as have been previously obtained or rendered, as the case may be,
and such as may be obtained under the state securities laws of any
jurisdiction in connection with the sale of the Notes as herein
contemplated.
(xv) Investment Company Act. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the ("1940 Act").
(xvi) Commodity Exchange Act. The Notes, upon issuance, will
be excluded or exempted under or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(xvii) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated by
Duff & Phelps Credit Rating Company and by Standard & Poor's Ratings
Service, or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a) hereof.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Company to such Agent or Agents as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company by the
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and (1) shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the Company,
or (2) shall be set forth in a written agreement between the Company and such
Agent or Agents). An Agent's commitment to purchase Notes as principal shall be
deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires, references herein to
"this Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes from
the Company by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the officers' certificate, opinion of counsel and
comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof and whether
Section 4(k) hereof will be required.
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal and
one or more of such Agents shall fail at the Settlement Date to purchase the
Notes which it or they are obligated to purchase (the "Defaulted Notes"), then
the nondefaulting Agents shall have the right, within 24 hours thereafter, to
make arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall
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<PAGE> 8
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the Settlement Date for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use all reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently.
Upon receipt of instructions from the Company, such Agent will suspend
solicitation of offers for the purchase of Notes from the Company until such
time as the Company has advised such Agent that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
shall be agreed upon from time to time among the Company, the Agents and the
Trustees. Unless otherwise agreed, the Procedures shall be those attached hereto
as Exhibit B. The Agents and the Company agree to perform, and the Company
agrees to use all reasonable efforts to cause the Trustees to agree to perform,
their respective duties and obligations specifically provided to be performed by
them in the Procedures.
4. Covenants of the Company.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the Previous
Registration Statement or the filing of any amendment or supplement to the
Prospectus (other than any amendment or supplement thereto providing solely for
the determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), (ii) the receipt of any comments
from the Commission relating to the Registration Statement, the Previous
Registration Statement, the Prospectus or the Notes, (iii) any request by the
Commission for any amendment to the Registration Statement, the Previous
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the Previous
Registration Statement, or of any order preventing or suspending the use of any
preliminary prospectus, or of the initiation of any proceedings for that purpose
or (v) any change in the rating assigned by any nationally
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<PAGE> 9
recognized statistical rating organization to the Program or any debt securities
(including the Notes) of the Company, or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities. The Company will make all reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, to promptly
obtain the lifting thereof.
(b) Filing or Use of Amendments. The Company will give the Agents
advance notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement (including any filing under Rule 462(b) of the 1933
Act Regulations) or the Previous Registration Statement or any amendment or
supplement to the prospectus included in the Registration Statement at the time
it became effective or to the Prospectus (other than an amendment or supplement
thereto providing solely for the determination of the variable terms of the
Notes or relating solely to the offering of securities other than the Notes),
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish to the
Agents copies of any such document a reasonable amount of time prior to such
proposed filing or use, as the case may be.
(c) Delivery of the Registration Statements. The Company has furnished
to each Agent and to counsel for the Agents, without charge, conformed copies of
the Registration Statement and the Previous Registration Statement, each as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed and conformed copies
of all consents and certificates of experts. The Registration Statement, the
Previous Registration Statement and each amendment thereto furnished to the
Agents will be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of the Prospectus. The Company will deliver to each Agent,
without charge, as many copies of each preliminary prospectus as such Agent may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend the Registration Statement or the Previous Registration
Statement in order that the Registration Statement or the Previous Registration
Statement, as the case may be, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the opinion of either such counsel, to amend the
Registration Statement or the Previous Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for the
purchase of Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Company will promptly prepare and file
with the Commission, subject to Section 4(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration State ment and Prospectus comply with such requirements, and
the Company will furnish to the Agents, without charge, such
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<PAGE> 10
number of copies of such amendment or supplement as the Agents may reasonably
request. In addition, the Company will comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
the Agents, confirmed in writing, and shall cause the Prospectus to be amended
or supplemented to include financial information with respect thereto and
corresponding information for the comparable period of the preceding fiscal
year, as well as such other infor mation and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include such audited consolidated financial
statements and the report or reports, and consent or consents to such inclusion,
of the independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an understanding of such
consolidated financial statements or as shall be required by the 1933 Act or the
1933 Act Regulations.
(i) Earnings Statements. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
agreed upon between one or more Agents acting as principal and the Company,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Company and the Settlement Date with respect thereto, the Company will
not, without the prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, any
debt securities of the Company which are substantially similar to the Notes
being sold (other than the Notes that are to be sold pursuant to such agreement
or commercial paper in the ordinary course of business).
(l) Use of Proceeds. The Company will use the net proceeds received
by it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (f), (g) or (h) of this
Section 4 during any period from the time (i) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity as agents
pursuant to a request from the Company and (ii) no Agent shall then hold any
Notes purchased from the Company as principal, as the case may be, until the
time the Company shall determine that solicitation of offers for the purchase of
Notes should be resumed or an Agent shall subsequently purchase Notes from the
Company as principal.
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<PAGE> 11
5. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from the
Company as principal and to solicit offers for the purchase of Notes as an agent
of the Company, and the obligations of any purchasers of Notes sold through an
Agent as an agent of the Company, will be subject to the accuracy of the
representations and warranties on the part of the Company herein contained or
contained in any certificate of an officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance and
observance by the Company of its covenants and other obligations hereunder, and
to the following additional conditions precedent:
(a) Effectiveness of Registration Statements. Each of the Registration
Statement (including any Rule 462(b) Registration Statement) and the Previous
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or the Previous
Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agents.
(b) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(i) Opinion of Counsel for the Company. The favorable opinions
of John J. Sabl, general counsel for the Company, and Locke Reynolds
Boyd & Weisell, counsel for the Company, to the effect set forth in
Exhibit C(i) and C(ii) hereto, respectively.
(ii) Opinion of Counsel for the Agents. The favorable opinion
of Sidley & Austin, counsel for the Agents, with respect to the matters
set forth in paragraphs 6 through 10 of Exhibit C(i) hereto and the
first paragraph of Exhibit C(ii) hereto.
(c) Officer's Certificate. On the date hereof, there shall not have
been, since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earn ings, business affairs or business prospects of the
Company and its Significant Subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Agents shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial officer or chief accounting officer of the Company, dated
as of the date hereof, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company herein
contained are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate with respect
to the Notes, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(d) Comfort Letter of Coopers & Lybrand, LLP. On the date hereof, the
Agents shall have received a letter from Coopers & Lybrand, LLP, dated as of the
date hereof and in form and substance satisfactory to the Agents, to the effect
set forth in Exhibit D hereto.
(e) Additional Documents. On the date hereof, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such
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termination shall be without liability of any party to any other party except as
provided in Section 10 hereof and except that Sections 8, 9, 11, 14 and 15
hereof shall survive any such termination and remain in full force and effect.
6. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of the Company
shall be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
7. Additional Covenants of the Company.
The Company further covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent(s) or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as though made at
and as of each such time (it being understood that such representations and
warranties shall relate to the Registration Statement, the Previous Registration
Statement and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement, the Previous Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other than the Notes or, except as
provided below, an amendment or supplement by the filing of any document
incorporated by reference), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal, (iii) the Company files with the
Commission an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a
Current Report on Form 8-K which contains financial information required to be
set forth in or incorporated by reference into the Prospectus pursuant to Item
11 of Form S-3 under the Securities Act or, upon the reasonable request of the
Agents, any other Report on Form 8-K, or (iv) the Company sells Notes in a form
not previously certified to the Agents by the Company, the Company shall furnish
or cause to be furnished to the Agent(s), forthwith a certificate dated the date
of filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
satisfactory to the Agent(s) to the effect that the statements contained in the
certificate referred to in Section 5(c) hereof which were last furnished to the
Agents are true and correct at the time of the filing or effectiveness of such
amendment or supplement, as applicable, or the time of such sale, as the case
may be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement, the Previous Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in Section 5(c) hereof, modified as necessary to relate to the
Registration Statement, the Previous Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such certificate (it
being understood that, in the case of clause (ii) above, any such certificate
shall also include a certification that there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise since the date of the agreement by such Agent(s) to purchase
Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement, the Previous Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other
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<PAGE> 13
than the Notes or, except as provided below, an amendment or supplement by the
filing of any document incorporated by reference), (ii) (if required in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to one or more Agents as principal, (iii) the
Company files with the Commission an Annual Report on Form 10-K, a Quarterly
Report on Form 10-Q, a Current Report on Form 8-K which contains financial
information required to be set forth in or incorporated by reference into the
Prospectus pursuant to Item 11 of Form S-3 under the Securities Act or, upon the
reasonable request of the Agents, any other Report on Form 8-K, or (iv) the
Company sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished forthwith to the
Agent(s) and to counsel to the Agents the written opinions of John J. Sabl,
general counsel for the Company, and Locke Reynolds Boyd & Weisell, counsel to
the Company (unless otherwise waived), or other counsel satisfactory to the
Agent(s), dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form and substance satisfactory to the
Agent(s), of the same tenor as the opinion referred to in Section 5(b)(i)
hereof, but modified, as necessary, to relate to the Registration Statement, the
Previous Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinion or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents shall furnish the Agent(s) with a
letter substantially to the effect that the Agent(s) may rely on such last
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement, the Previous Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement, the Previous Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information
(other than by an amendment or supplement providing solely for the determination
of the variable terms of the Notes or relating solely to the issuance and/or
offering of securities other than the Notes or, except as provided below, an
amendment or supplement by the filing of any document incorporated by
reference), (ii) (if required in connection with the purchase of Notes from the
Company by one or more Agents as principal) the Company sells Notes to one or
more Agents as principal, or (iii) the Company files with the Commission an
Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Current Report on
Form 8-K which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3
under the Securities Act or, upon the reasonable request of the Agents, any
other Report on Form 8-K, the Company shall cause Coopers & Lybrand, LLP
forthwith to furnish to the Agent(s) a letter, dated the date of filing with the
Commission or the date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, in form satisfactory
to the Agent(s), of the same tenor as the letter referred to in Section 5(d)
hereof but modified to relate to the Registration Statement, the Previous
Registration Statement and Prospectus as amended and supplemented to the date of
such letter.
8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (a
"Controlling Person") against any and all loss, liability, claim, damage and
expense whatsoever, as incurred (including, to the extent provided herein, the
fees and disbursements of counsel chosen by such Agent), (i) arising out of an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Previous Registration Statement (or, in each case,
any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of an untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (ii) to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
provided that (subject to Section 8(d) hereof) any such settlement is effected
with the written consent of the Company, and (iii) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided, however, that
this indemnity does not apply to any loss, liability,
13
<PAGE> 14
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (A) made in reliance upon and
in conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement or the Previous Registration
Statement (or, in each case, any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), (B) made
in the Form T-1 or (C) made in any preliminary prospectus supplement if a copy
of the final prospectus supplement (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Agent at or prior to the confirmation of the
sale of a Note or Notes to the person asserting such loss, liability, claim,
damage or expense who purchased such Note or Notes which are the subject thereof
from such Agent, and if the final prospectus supplement (as so amended or
supplemented) had been sent or given to such person at or prior to confirmation
it would have relieved the Company, the Agent and any Controlling Person of any
liability for such loss, liability, claim, damage or expense; provided, further,
that in the case of clause (C) above, the Company shall have delivered the final
prospectus supplement in compliance with the time schedule set forth in Section
4(e) of this Agreement.
(b) Indemnification of Company, Directors and Officers. Each Agent
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement or the
Previous Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Agents expressly for use in the Registration Statement or the
Previous Registration Statement (or, in each case, any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel as well as one local counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written
14
<PAGE> 15
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately
preceding sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 8(a)(ii) affected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
9. Contribution. If the indemnification provided for in Section 8 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, from the offering of the Notes that were
the subject of the claim for indemnification or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one
hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the Notes that were the subject of the claim for indemnification
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company and the total discount or commission received by each applicable
Agent, as the case may be, bears to the aggregate initial offering price of such
Notes.
The relative fault of the Company, on the one hand, and the
applicable Agent(s), on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the applicable Agent(s) and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes that were the subject of the claim for
indemnification sold through it and distributed to the public were offered to
the public exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of any applicable untrue or alleged untrue statement
or omission or alleged omission and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
15
<PAGE> 16
For purposes of this Section 9, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement and the Previous Registration Statement as originally filed and all
amendments thereto and any preliminary prospectus, the Prospectus and any
amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indentures;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD"); and
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the written approval of the Company.
11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for the Notes.
12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 10 days' prior written notice of such
termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the
16
<PAGE> 17
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if such Notes are
denominated and/or payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development or event involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of such Agent(s), impracticable to market
such Notes or enforce contracts for the sale of such Notes, or (iii) trading in
any securities of the Company has been suspended or limited by the Commission or
a national securities exchange, or if trading generally on the New York Stock
Exchange or the American Stock Exchange or in the Nasdaq National Market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or by the relevant authorities in the country or
countries of origin of any foreign or composite currency in which such Notes are
denominated and/or payable, or (v) the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt securities
(including the Notes) of the Company as of the date of such agreement shall have
been lowered or withdrawn since that date or if any such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Program or any such debt securities.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal or (b) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(i) hereof, the provisions of Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in
effect.
13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
Attention: John J. Sabl
Telecopy No.: (317) 817-6327
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
17
<PAGE> 18
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telecopy No.: (212) 834-6081
Deutsche Morgan Grenfell Inc.
31 W. 52nd Street
New York, New York, 10019
Attention: Deutsche Bank Legal Dept. (Attn: Pam Kendall)
Telecopy No.: (212) 469-8173
First Union Capital Markets Corp.
301 South College Street DC4
Charlotte, North Carolina 28288
Attention: Kirby Laforce
Telecopy: (704) 374-2540
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Registration Department
Telecopy: (212) 357-5505
NationsBanc Montgomery Securities, Inc.
Capital Market Services
NC1-007-07-01
Charlotte, North Carolina 28255
Attention:
Telecopy:
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
Telecopy: (212) 783-2274
Smith Barney, Inc.
3 90 Greenwich St.
New York, New York 10013
Attention:
Telecopy:
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons, officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
18
<PAGE> 19
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
15. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR
ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK.
16. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
19
<PAGE> 20
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
CONSECO, INC.
By:
Name:
20
<PAGE> 21
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
Authorized Signatory
CHASE SECURITIES INC.
By:
Authorized Signatory
DEUTSCHE MORGAN GRENFELL INC.
By:
Authorized Signatory
FIRST UNION CAPITAL MARKETS CORP.
By:
Authorized Signatory
GOLDMAN, SACHS & CO.
(Goldman, Sachs & Co.)
NATIONABANC MONTGOMERY SECURITIES, INC.
By:
Authorized Signatory
SALOMON BROTHERS INC
By:
Authorized Signatory
SMITH BARNEY, INC.
By:
21
<PAGE> 1
EXHIBIT 4.1
CONSECO, INC.
to
LTCB Trust Company, Trustee
SENIOR INDENTURE
Dated as of November 13, 1997
Providing for Issuance of
Senior Debt Securities in Series
<PAGE> 2
Reconciliation and tie between Indenture, dated as of November 13, 1997, and the
Trust Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
TRUST INDENTURE ACT INDENTURE
OF 1939 SECTION SECTION
- - -------------------- ---------
<S> <C> <C> <C>
310 (a)(1)..................................................... 6.12
(a)(2)..................................................... 6.12
(a)(3)..................................................... TIA
(a)(4)..................................................... Not applicable
(a)(5)..................................................... TIA
(b)........................................................ 6.10; 6.12;.
TIA
311 (a)....................................................... TIA
(b)....................................................... TIA
312 (a)....................................................... 6.8
(b)....................................................... TIA
(c)....................................................... TIA
313 (a)....................................................... 6.7; TIA
(b)....................................................... TIA
(c)....................................................... TIA; 6.7
(d)....................................................... TIA; 6.7
314 (a)....................................................... 9.6; 9.7; TIA
(b)....................................................... Not Applicable
(c) (1).............................................. 1.2
(c) (2).............................................. 1.2
(c) (3).............................................. Not Applicable
(d)....................................................... Not Applicable
(e)....................................................... 1.2; TIA
(f)....................................................... TIA
315 (a)....................................................... 6.1
(b)....................................................... 6.6
(c)....................................................... 6.1
(d) (1).............................................. TIA
(d) (2).............................................. TIA
(d) (3).............................................. TIA
(e)....................................................... TIA
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
316 (a) (last sentence).................................. 1.1
(a) (1) (A)..................................... 5.8
(a) (1) (B)..................................... 5.7
(b)....................................................... 5.9; 5.10
(c)....................................................... TIA
317 (a) (l).............................................. 5.3
(a) (2).............................................. 5.4
(b)....................................................... 9.3
318 (a)....................................................... 1.11
(b)....................................................... TIA
(c)....................................................... 1.11; TIA
</TABLE>
This reconciliation and tie section does not constitute part of the
Indenture.
<PAGE> 4
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C> <C> <C>
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION..............................................................................................1
1.1 Definitions............................................................................1
1.2 Compliance Certificates and Opinions..................................................11
1.3 Form of Documents Delivered to Trustee................................................12
1.4 Acts of Holders.......................................................................13
1.5 Notices, etc., to Trustee and Company.................................................15
1.6 Notice to Holders; Waiver.............................................................15
1.7 Headings and Table of Contents........................................................17
1.8 Successor and Assigns.................................................................17
1.9 Separability..........................................................................17
1.10 Benefits of indenture.................................................................17
1.11 Governing Law.........................................................................17
1.12 Legal Holidays........................................................................17
ARTICLE 2 SECURITY FORMS.........................................................................................18
2.1 Forms Generally.......................................................................18
2.2 Form of Trustee's Certificate of
Authentication...............................................................19
2.3 Securities in Global Form.............................................................19
2.4 Form of Legend for Securities in Global Form..........................................20
ARTICLE 3 THE SECURITIES.........................................................................................20
3.1 Amount Unlimited; Issuable in Series..................................................20
3.2 Denominations.........................................................................25
3.3 Execution Authentication, Delivery and
Dating.......................................................................25
3.4 Temporary Securities..................................................................28
3.5 Registration, Transfer and Exchange...................................................29
3.6 Replacement Securities................................................................34
3.7 Payment of Interest; Interest Rights Preserved...................................35
3.8 Persons Deemed Owner..................................................................37
3.9 Cancellation .....................................................................38
3.10 Computation of Interest...............................................................38
3.11 CUSIP Numbers.........................................................................38
3.12 Currency and Manner of Payment in
Respect of Securities........................................................39
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C> <C>
3.13 Appointment and Resignation of Exchange
Rate Agent...................................................................44
ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE.................................................................44
4.1 Termination of Company's Obligations Under
the Indenture................................................................44
4.2 Application of Trust Funds............................................................46
4.3 Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
covenant Defeasance..........................................................46
4.4 Defeasance and Discharge..............................................................47
4.5 Covenant Defeasance...................................................................47
4.6 Conditions to Defeasance or Covenant
Defeasance...................................................................48
4.7 Deposited Money and Government Obligations
to Be Held in Trust..........................................................50
4.8 Repayment to Company..................................................................51
4.9 Indemnity for Government Obligations..................................................51
4.10 Reinstatement.........................................................................51
ARTICLE 5 DEFAULTS AND REMEDIES..................................................................................52
5.1 Events of Default.....................................................................52
5.2 Acceleration; Rescission and Annulment................................................54
5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................................55
5.4 Trustee May File Proofs of Claim......................................................56
5.5 Trustee May Enforce Claims Without Possession
of Securities................................................................56
5.6 Delay or Omission Not Waiver..........................................................56
5.7 Waiver of Past Defaults...............................................................56
5.8 Control by Majority...................................................................57
5.9 Limitation on Suits by Holders........................................................57
5.10 Rights of Holders to Receive Payment..................................................58
5.11 Application of Money Collected........................................................58
5.12 Restoration of Rights and Remedies....................................................59
5.13 Rights and Remedies Cumulative........................................................59
5.14 Waiver of Usury, Stay or Extension Laws...............................................59
5.15 Undertaking for Costs.................................................................59
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ARTICLE 6 THE TRUSTEE............................................................................................60
6.1 Certain Duties and Responsibilities of the
Trustee......................................................................60
6.2 Rights of Trustee.....................................................................60
6.3 Trustee May Hold Securities...........................................................61
6.4 Money Held in Trust...................................................................62
6.5 Trustee's Disclaimer..................................................................62
6.6 Notice of Defaults....................................................................62
6.7 Reports by Trustee to Holders.........................................................62
6.8 Securityholder Lists..................................................................62
6.9 Compensation and Indemnity............................................................63
6.10 Replacement of Trustee................................................................64
6.11 Acceptance of Appointment by Successor................................................65
6.12 Eligibility; Disqualification.........................................................67
6.13 Merger, Conversion, Consolidation or Succession
to Business..................................................................67
6.14 Appointment of Authenticating Agent...................................................68
ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY...........................................................70
7.1 Consolidation, Merger or Sale of Assets
Permitted....................................................................70
ARTICLE 8 SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of
Holders......................................................................71
8.2 Supplemental Indentures With Consent of
Holders......................................................................72
8.3 Compliance with Trust Indenture Act...................................................73
8.4 Execution of Supplemental Indentures..................................................73
8.5 Effect of Supplemental Indentures.....................................................74
8.6 Reference in Securities to Supplemental
Indentures...................................................................74
ARTICLE 9 COVENANTS..............................................................................................74
9.1 Payment of Principal, Premium, if any, and
Interest.....................................................................74
9.2 Maintenance of Office or Agency.......................................................74
9.3 Money for Securities to Be Held in Trust;
Unclaimed Money..............................................................76
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C> <C>
9.4 Corporate Existence...................................................................77
9.5 Reports by the Company................................................................77
9.6 Annual Review Certificate; Notice of Defaults
or Events of Default.........................................................78
9.7 Books of Record and Account...........................................................79
ARTICLE 10 REDEMPTION............................................................................................79
10.1 Applicability of Article..............................................................79
10.2 Election to Redeem; Notice to Trustee.................................................79
10.3 Selection of Securities to Be Redeemed................................................79
10.4 Notice of Redemption..................................................................80
10.5 Deposit of Redemption Price...........................................................81
10.6 Securities Payable on Redemption Date.................................................82
10.7 Securities Redeemed in Part...........................................................83
ARTICLE 11 SINKING FUNDS.........................................................................................83
11.1 Applicability of Article..............................................................83
11.2 Satisfaction of Sinking Fund Payments with
Securities...................................................................84
11.3 Redemption of Securities for Sinking Fund.............................................84
</TABLE>
<PAGE> 8
INDENTURE, dated as of November 13, 1997 from CONSECO, INC., an Indiana
corporation (the "Company"), to LTCB Trust Company, Trustee, a New York
corporation (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. DEFINITIONS. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"AFFILIATE" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or
<PAGE> 9
indirect common control, with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGENT" means any Paying Agent or Registrar.
"AUTHENTICATING AGENT" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"BEARER SECURITY" means any Security issued hereunder which is payable
to bearer.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company, the Executive Committee or any other duly authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of the certificate, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this Indenture such Commission is not
existing and performing the
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<PAGE> 10
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the party named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter means such
successor.
"COMPANY ORDER" and "COMPANY REQUEST" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President the Chief Financial Officer,
the Treasurer, the Assistant Treasurer, the Controller or a Vice President of
the Company.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the issuer of such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities or (iii) any currency unit other than the ECU for the purposes for
which it was established.
"CORPORATE TRUST OFFICE" means the office of the Trustee in which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 165 Broadway, New
York, New York 10006, Attention: Corporate Trust Administration.
"CURRENCY UNIT" for all purposes of this Indenture shall include any
composite currency.
"DEBT" means indebtedness for money borrowed.
"DEFAULT" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default.
"DEPOSITORY" when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.1 until a
successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
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<PAGE> 11
"DOLLAR" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"EUROPEAN COMMUNITIES" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EXCHANGE RATE AGENT", when used with respect to Securities of or
within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, a New York Clearing House bank designated
pursuant to Section 3.1 or Section 3.13 (which may include any such bank acting
as Trustee hereunder).
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a certificate setting forth
(i) the applicable Market Exchange Rate or the applicable bid quotation and (ii)
the Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount in the relevant currency or currency
unit), payable with respect to a Security of any series on the basis of such
Market Exchange Rate or the applicable bid quotation, signed by the Chief
Financial Officer, the Treasurer, the Controller, any Vice President or the
Assistant Treasurer of the Company.
"FOREIGN CURRENCY" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States or such
4
<PAGE> 12
other government, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation evidenced by such depository receipt.
"HOLDER" means, with respect to a Bearer Security, a bearer thereof or
of a coupon appertaining thereto and, with respect to a Registered Security, a
person in whose name a Security is registered on the Register.
"INDENTURE" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal
5
<PAGE> 13
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.1, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or other principal market for such currency or currency
unit in question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. If there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the market
to be used in respect of such currency or currency unit shall be that upon which
a nonresident issuer of securities designated in such currency or currency unit
would purchase such currency or currency unit in order to make payments in
respect of such securities.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Assistant Treasurer,
the Controller, the Secretary or any Assistant
Secretary of the Company.
"OFFICERS' CERTIFICATE", when used with respect to the Company, means a
certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or a Vice President of the Company.
"OPINION OF COUNSEL" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the stated principal amount
6
<PAGE> 14
thereof to be due and payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or Government Obligations in the necessary amount has
been theretofore deposited with the Trustee or any Paving Agent (other
than the Company) in trust or set aside and segregated in trust (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, PROVIDED that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to
the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 to the Trust
Indenture Act, (W) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such Determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, (X) the principal
7
<PAGE> 15
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (w) above) of such Security, (Y) the principal amount of any
Indexed Security that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such security pursuant to Section 3.1, and
(Z) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest and any other payments on any
Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to the determined by the Company
upon the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of or
within any series, means the place or places where the
8
<PAGE> 16
principal of, premium, if any, and interest and any other payments on such
Securities are payable as specified as contemplated by Sections 3.1 and 9.2.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PRINCIPAL AMOUNT", when used with respect to any Security, means the
amount of principal, if any, payable in respect thereof at Maturity; PROVIDED,
HOWEVER, that when used with respect to an Indexed Security in any context other
than the making of payments at Maturity, "principal amount" means the principal
face amount of such Indexed Security at original issuance.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security issued hereunder and
registered as to principal and interest in the Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, shall
mean the chairman or any vice chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any senior vice president, any
vice president, any assistant vice president, the secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer, the controller, any assistant controller, or any
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
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<PAGE> 17
"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"SUBSIDIARY" of any Person means any Person of which at least a
majority of capital stock having ordinary voting power for the election of
directors or other governing body of such Person is owned by such Person
directly or through one or more Subsidiaries of such Person.
"TOTAL ASSETS" means, at any date, the total assets appearing on the
most recently prepared consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.
"TRUSTEE" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1 the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. PERSON" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national or
resident of the United States, a corporation,
10
<PAGE> 18
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust, the
income of which is subject to United States federal income taxation regardless
of its source.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
TERM SECTION
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.12(d)
"Conversion Date" 3.12(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.12(h)
"Event of Default" 5.1
"Notice of Default" 5.1(3)
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.7(c)
Section 1.2. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Company to the Trustee to take an action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.6) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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<PAGE> 19
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make give or execute two or more
applications, requests, consents, certificates, statements opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
12
<PAGE> 20
Section 1.4. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument of instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of and such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or Affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depository, wherever situated if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems sufficient.
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<PAGE> 21
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) If the Company shall solicit from the Holders of any series any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of such series entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so, PROVIDED that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.2, (iii) any direction referred to in Section 5.8 or (iv) any
request to institute proceedings referred to in Section 5.9(2), in each case
with respect to Securities of such series. If such a record date is fixed
pursuant to this paragraph, the relevant action may be taken or given before or
after such record date, but only the Holders of record at the close of business
on such record date shall be deemed to be holders of a series for the purpose of
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determining whether Holders of the requisite proportion of Outstanding
Securities of such series have authorized or agreed or consented to such action,
and for that purpose the Outstanding Securities of such series shall be computed
as of such record date; PROVIDED that no such action by Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date and the proposed
action by Holders to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
Section 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) in writing
and mailed, first-class postage prepaid, to the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) in writing
and mailed, first-class postage prepaid, to the Company addressed to it at
Conseco, Inc., 11825 N. Pennsylvania Street, Carmel, Indiana 46032, Attention:
General Counsel or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.6. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice to Holders of an event (i) if any of the Securities affected by such
event are Registered Securities, such notice to the Holders thereof shall be
sufficiently given unless otherwise herein expressly provided) if in writing and
mailed first-class postage prepaid to each such Holder affected by such event,
at his address as it appears in the Register within the time
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prescribed for the giving of such notice and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York and in such other city or cities, if any, as may
be specified as contemplated by Section 3.1.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice with respect to any Holders of Registered Securities given as
provided herein. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event and such waiver shall be equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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Section 1.7. HEADINGS AND TABLE OF CONTENTS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8. SUCCESSOR AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successor and assigns, whether so
expressed or not.
Section 1.9. SEPARABILITY. In case any provision of this Indenture or
the Securities shall 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 1.10. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS. This Indenture is subject to the Trust Indenture Act and if any
provision hereof limits, qualifies or conflicts with any provision of the Trust
Indenture Act, which is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be. Whether or
not this Indenture is required to be qualified under the Trust Indenture Act,
the provisions of the Trust Indenture Act required to be included in an
indenture in order for such indenture to be so qualified shall be deemed to be
included in this Indenture with the same effect as if such provisions were set
forth herein and any provisions hereof which may not be included in an indenture
which is so qualified shall be deemed to be deleted or modified to the extent
such provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.12. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of an series which specifically
states that such
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provision shall apply in lieu of this Section) payment of principal, premium, if
any, or interest need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on such date; PROVIDED that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE 2
SECURITY FORMS
Section 2.1. FORMS GENERALLY. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depository
therefor or as may, consistently herewith, be determined by the officers
executing such Securities and coupons, if any, as evidenced by their execution
of the Securities and coupons, if any. If temporary Securities of any series are
issued as permitted by Section 3.1, the form thereof also shall be established
as provided in the preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by, or by action taken pursuant to, a
Board Resolution, a copy of the Board Resolution together with an appropriate
record of any such action taken pursuant thereto, including a copy of the
approved form of Securities or coupons, if any, shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved boarders or may be produced in any
other manner, all as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Securities and coupons,
if any.
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Section 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
{----------------------------},
as trustee
By
-------------------------
Authorized Signatory
Section 2.3. SECURITIES IN GLOBAL FORM. If Securities of or within a
series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
or changes in the rights of Holders, of Outstanding Securities represented
thereby, shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or 3.4. Subject to the provisions of Section 3.3 and, if
applicable, Section 3.4, the Trustee shall deliver and redeliver any security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. Any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 1.2
hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of
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principal of, premium, if any, and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Section 2.4. FORM OF LEGEND FOR SECURITIES IN GLOBAL FORM. Any
Registered Security in global form authenticated and delivered hereunder shall
bear a legend in substantially the following form with such changes as may be
required by the Depository:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR SECURITIES IN CERTIFICATED FORM IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.
ARTICLE 3
THE SECURITIES
Section 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6, or 10.7);
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(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable
and, with respect to Registered Securities, the Regular Record Date, if
any, for the interest payable on any Registered Security on any
Interest Payment Date;
(5) the place or places where the principal of, premium,if
any, and interest, if any, on securities of the series shall be
payable;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 10, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which
the price or prices at which and the other terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of 5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currencies or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be denominated,
and the particular provisions
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applicable thereto in accordance with, in addition to, or in lieu of
the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined;
(12) if other than the principal amount thereof, the portion
of the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section
5.2 or the method by which such portion shall be determined;
(13) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(14) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to
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whom, any interest on any Bearer Securities of the series shall be
payable;
(15) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(16) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article 9 pertaining to the Securities of the series;
(17) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a Person
who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(18) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(19) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(20) the forms of the Securities and coupons, if any, of the
series;
(21) the applicability, if any, to the Securities of or within
the series of Sections 4.4 and 4.5, or such other means of defeasance
or covenant defeasance as may be specified for the Securities and
coupons, if any, of such series, and, if the Securities are payable in
a currency other than Dollars, whether, for the purpose of such
defeasance or covenant defeasance the term "Government Obligations"
shall include obligations referred to in the definition of such term
which are not obligations of the United States or an agency or
instrumentality of the United States;
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(22) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(23) the designation of the initial Exchange Rate Agent, if
any;
(24) if the Securities of the series shall be issued in whole
or in part in global form (i) the Depository for such global
Securities, (ii) the form of any legend in addition to or in lieu of
that in section 2.4 which shall be borne by such global security, (iii)
whether beneficial owners of interests in any Securities of the series
in global form may exchange such interests for certificated Securities
of such series and of like tenor of any authorized form and
denomination, and (iv) if other than as provided in Section 3.5, the
circumstances under which any such exchange may occur; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection
with the marketing of Securities of the series.
(c) All Securities of any one series and coupons, if any, appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant
to a Board Resolution and (subject to Section 3.3) set forth or determined in
the manner provided, in the related Officers' Certificate or (iii) in an
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) if any of the terms of the Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be certified by the Corporate Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
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Section 3.2. DENOMINATIONS. Unless otherwise provided as contemplated
by Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination of $5,00 and any
integral multiples thereof.
Section 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. Securities
shall be executed on behalf of the Company by two Officers. The Company's seal
shall be reproduced on the Securities. The signatures of any of these officers
on the Securities may be manual or facsimile. The coupons, if any, of Bearer
Securities shall bear the facsimile signature of two Officers.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any coupons appertaining thereto, of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; PROVIDED
HOWEVER, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including without limitation, the receipt
by the Trustee of oral or electronic instructions from the Company or its duly
authorized agents, promptly confirmed in writing) acceptable to the Trustee as
may be specified pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.l, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating,
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(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or in the case of Securities of
a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legal
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Securities denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies
or currency units or payments outside the United States.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) reasonably acceptable to the Company, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Notwithstanding the generality of the
foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
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Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legends set forth in Section 4 and the terms of the Board Resolution or
supplemental indenture relating to such series.
Each Depository designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depository is so
registered. Each Depository shall enter into an agreement with the Trustee
governing the respective duties and rights of such Depository and the Trustee
with regard to Securities issued in global form.
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Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of
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definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
pursuant to Section 9.2 in a Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized denominations and of like tenor; PROVIDED,
HOWEVER, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and PROVIDED FURTHER that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
or pursuant to the Board Resolutions relating thereto and such delivery shall
occur only outside the United States. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series except as otherwise
specified as contemplated by Section 3.1.
Section 3.5. REGISTRATION, TRANSFER AND EXCHANGE. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that series, the Company shall execute and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
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Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 9.2, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special
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Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the holder of such coupon, when due in accordance with the provisions of this
Indenture.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depository designated for such series or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depository for such series to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depository for the
Securities of such series or if at any time the Depository for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depository with respect to the Securities of such series. If
a successor Depository for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company selection pursuant to Section 3.1(b)(23)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal
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amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depository for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depository a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall
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deliver such Securities to the Persons in whose names such Securities are so
registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or for
any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 of 10.7 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of, or exchange any Securities for a period beginning at
the opening of business 15 days before any selection for redemption of
Securities of like tenor and of the series of which such Security is a part and
ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holder of Securities of
like tenor and of such series to be redeemed; (ii) to register the transfer of
or exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part; or
(iii) to exchange any Bearer Security so selected for redemption, except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
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The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6. REPLACEMENT SECURITIES. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
Coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the Trustee's
requirements are met.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Security with a destroyed, lost or stolen coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security, if
such Holder's Claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay any such
Security or coupon; PROVIDED, HOWEVER, that payment of principal of and any
premium or interest on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section
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3.1, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require that payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a) Unless
otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest, if any, on any Registered Security which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to 9.2; PROVIDED, HOWEVER, that at the option of the Company, interest on any
series of Registered Securities that earn interest may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall appear on the
Register of Holders of Securities of such series or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, (i) interest, if any, on Bearer Securities shall be
paid only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original issue
discount,
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if any, on Bearer Securities shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing provided that any such instruction for payment
in the United States does not cause any Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations. The
interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, any interest on Registered Securities of
any series which is payable, but is not punctually paid or duly provided for, on
any interest payment date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holders on the relevant Regular Record Date by virtue
of their having been such Holders, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit the Persons entitled to
such Defaulted Interest as in this clause (1) provided. Thereupon
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the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not 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. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his address as
it appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8. PERSONS DEEMED OWNERS. Prior to due presentment of any
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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The Company, the Trustee and an agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee) as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.9. CANCELLATION. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not be required to, dispose of cancelled
Securities and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 3.10. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, in such case, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; PROVIDED that any such
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notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
Section 3.12. CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES.
(a) Unless otherwise specified with respect to any Securities pursuant to
section 3.1, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in the currency or
currencies or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 3.12
may be modified or superseded pursuant to Section 3.1 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.1, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.1, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article 4 or with respect to which a
notice of redemption has been given by or on behalf of the Company). Any Holder
of any such Registered Security who shall not have delivered any such Election
to the Trustee (or any applicable Paying Agent) not later than the
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close of business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant currency or currency unit as
provided in Section 3.12(a). The Trustee (or the applicable Paying Agent) shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of
the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) If the election referred to in paragraph (b) above has been
provided for with respect to any Registered Securities of a series pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.1, and at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the Trustee (or the
applicable Paying Agent) an Exchange Rate Officers' Certificate in respect of
the Dollar, Foreign Currency or Currencies, ECU or other currency unit payments
to be made on such payment date. Unless otherwise specified pursuant to Section
3.1, the Dollar, Foreign Currency or Currencies, ECU or other currency unit
amount receivable by Holders of Registered Securities who have elected payment
in a currency or currency unit as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
ECU or any other currency unit in which any of the Securities are denominated or
payable otherwise than pursuant to an election provided for pursuant to
paragraph (b) above, then, with respect to each date for the payment of
principal of, premium, if
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any, and interest, if any, on the applicable Securities denominated or payable
in such Foreign Currency, ECU or such other currency unit occurring after the
last date on which such Foreign Currency, ECU or such other currency unit was
used (the "Conversion Date"), the Dollar shall be the currency of payment for
use on each such payment date (but such Foreign Currency, ECU or such other
currency unit that was previously the currency of payment shall, at the
Company's election, resume being the currency of payment on the first such
payment date preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency no longer prevail). Unless
otherwise specified pursuant to Section 3.1, the Dollar amount to be paid by the
Company to the Trustee or any applicable Paying Agent and by the Trustee or any
applicable Paying Agent to the Holders of such Securities with respect to such
payment date shall be, in the case of a Foreign Currency other than a currency
unit, the Dollar Equivalent of the Foreign Currency or in the case of a Foreign
Currency that is a currency unit, the Dollar Equivalent of the Currency limit,
in each case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the Holder
of a Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
as provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would have been made
in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.12 (but, subject to any contravening
valid election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or currency
unit of payment, no longer prevail).
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(f) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Exchange Rate Agent and shall be obtained for each subsequent payment
date by the Exchange Rate Agent by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Exchange Rate Agent and, subject to the provisions of paragraph (h) below,
shall be the sum of each amount obtained by converting the specified amount of
each Component Currency (as each such term is defined in paragraph (h) below)
into Dollars at the Market Exchange Rate for such Component Currency on the
Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have
the following meanings:
"Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities as specified pursuant to Section 3.1 by which
the written election referred to in Section 3.12(b) may be made.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which such Component
Currency represented in the relevant currency unit, including, but not limited
to, ECU, on the Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the Specified
Amount of such former
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Component Currency and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited to,
ECU, a Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component Currency
of such currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of calculating
the Dollar Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Conversion Date of such Component
Currency.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee (and any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange are Agent shall promptly give written notice to the
Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to ECU
or any other currency unit in which Securities are denominated or payable, the
Company will promptly give written notice thereof to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent) will promptly thereafter give notice in the manner provided
in Section 1.6 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the event
the Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
the Company will similarly give written notice to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate
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Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
Section 3.13. APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT. (a)
Unless otherwise specified pursuant to Section 3.1, if and so long as the
Securities of any series (i) are denominated in a currency other than Dollars or
(ii) may be payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.12 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
currency or currencies or currency unit or units into the applicable payment
currency or currency unit for the payment of principal, premium, if any, and
interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.1 at any time there shall only be one Exchange Rate Agent with respect
to the Securities of any particular series that are originally issued by the
Company on the same date and that are initially denominated and/or payable in
the same currency or currencies or currency unit or units).
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. TERMINATION OF COMPANY'S OBLIGATIONS UNDER THE INDENTURE.
(a) This Indenture shall upon a Company Request cease
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to be of further effect with respect to Securities of or within any series and
any coupons appertaining thereto (except as to any surviving rights of
registration of transfer or exchange of such Securities and replacement of such
Securities which may have been lost, stolen or mutilated as herein expressly
provided for) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Securities and any coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and delivered and all
coupons appertaining thereto (other than (i) such coupons appertaining to Bearer
Securities surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived as provided
in Section 3.5, (ii) such Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid, as provided in Section 3.6,
(iii) such coupons appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of which has been waived
as provided in Section 10.6 and (iv) such Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust as provided in Section 9.3) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or currencies or
currency unit or units in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for cancellation, for
principal, premium,
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if any, and interest, with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.9, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 9.3 shall survive.
Section 4.2. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the persons entitled thereto,
of the principal, premium, if any, and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.3. APPLICABILITY OF DEFEASANCE PROVISIONS; COMPANY'S OPTION
TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.1
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.4 or (ii) covenant defeasance of the Securities
of or within a series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the Sections 4.6 through 4.9
inclusive, with such modifications thereto as may be specified pursuant to
Section 3.1 with respect to any Securities, shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 4.4 (if
applicable) or Section 4.5 (if applicable) be applied to such
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outstanding Securities and any coupons appertaining thereto upon compliance with
the conditions set forth below in this Article.
Section 4.4. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
the Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section
4.6 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.7 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall on a Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive solely from the
trust funds described in Section 4.6(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (iii) the rights, powers trusts, duties and
immunities of the Trustee hereunder and (iv) this Article 4. Subject to
compliance with this Article 4, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 4.5 with
respect to such Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 4.5. COVENANT DEFEASANCE. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4 and 9.7 and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant
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defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4 and 9.7 or such other covenant but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.1(3) or 5.1(7), or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.12 who shall agree to comply with and shall
be entitled to the benefits of, the provisions of Sections 4.3 through
4.9 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such Sections also a "Trustee") as trust funds
in trust for the purpose of making the payments referred to in clauses
(x) and (y) of this section 4.6(a), specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, with instructions to
the Trustee as to the application thereof, (A) money in an amount (in
such currency, currencies or currency unit or units in which such
Securities and any coupons appertaining thereto are then specified as
payable at Maturity), or (B) if Securities of such series are not
subject to repayment at the option of Holders, Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide not later than one day
before the due date of any payment referred to in clause (x) or (y) of
this Section 4.6(a), money in an amount or (C) a combination thereof in
an amount sufficient, in the opinion of a nationally recognized
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firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and Discharge the
principal of, premium, if any, and interest, if any, on such Securities
and any coupons appertaining thereto on the Maturity of such principal
or installment of principal or interest and (Y) any mandatory sinking
fund payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto.
Before such a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date or dates
in accordance with Article 10 which shall be given effect in applying
the foregoing.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or result in a breach or violation of, or
constitute a default under, any other material agreement or instrument
to which the Company is a party or by which it is bound.
(c) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or Federal income tax purposes
as a result of such defeasance and will be subject to Federal income
tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had
not occurred.
(d) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
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(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been
complied with.
(f) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(g) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
Sections 5.1(5) and (6), at any time on or prior to the 90th day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(h) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940 unless such
trust shall be registered under such Act or exempt from registration
thereunder.
(i) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
Section 4.7. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but
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such money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.1, if, after a deposit referred to in Section 4.6(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.6(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.12(d)
or 3.12(e) or by the terms of any Security in respect of indebtedness which the
deposit pursuant to Section 4.6(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of, premium, if any, and interest, if any, on such Security as the
same becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such currency or currency
unit in effect on the second Business Day prior to each payment date, except,
with respect to a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
Section 4.8. REPAYMENT TO COMPANY. The Trustee (and any Paying Agent)
shall promptly pay to the Company upon Company Request any excess money or
securities held by them at any time.
Section 4.9. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest and any other amount received on such
Government Obligations.
Section 4.10. REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligation under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 4.4 or 4.5 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as
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the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 4.7 with respect to such Securities in accordance with this
Article; PROVIDED, HOWEVER, that if the Company makes any payment of principal
of or any premium or interest on any such Security owing such reinstatement of
its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. EVENTS OF DEFAULT. An "Event of Default" occurs with
respect to the Securities of any series if (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any payment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security of
that series or any coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified
pursuant to Section 3.1(b)(16) when the same becomes due and payable
and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or any
premium on any Security of that series when the same becomes due and
payable at its Maturity or on redemption or otherwise, or in the
payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series;
(3) the Company fails to comply in any material respect with any of its
agreements or covenants in, or any of the provisions of, this Indenture
with respect to any Security of that series (other than an agreement,
covenant or provision for which non-compliance is elsewhere in this
Section specifically dealt with), and such non-compliance continues for
a period of 60 days after there has been given by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of the series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
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(4) a default under any mortgage, agreement, indenture or instrument
under which there may be issued, or by which there may be secured,
guaranteed or evidenced any Debt of the Company (including this
Indenture) whether such Debt now exists or shall hereafter be created,
in an aggregate principal amount then outstanding of $25,000,000 or
more, which default (a) shall constitute a failure to pay any portion
of the principal of such Debt when due and payable after the expiration
of an applicable grace period with respect thereto or (b) shall result
in such Debt becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such Debt shall not
be paid in full within a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such event of default and requiring the Company to
cause such acceleration to be rescinded or annulled or to pay in full
such Debt and stating that such notice is a "Notice of Default"
hereunder; (it being understood however, that the Trustee shall not be
deemed to have knowledge of such default under such agreement or
instrument unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) a Responsible Officer of
the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such agreement or other instrument);
PROVIDED, HOWEVER, that if such default under such agreement or
instrument is remedied or cured by the Company or waived by the holders
of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of such Holders; PROVIDED, FURTHER, that the foregoing shall not
apply to any secured Debt under which the obligee has recourse
(exclusive of recourse for ancillary matters such as environmental
indemnities, misapplication of funds, costs of enforcement and the
like) only to the collateral pledged for repayment so long as the fair
market value of such collateral does not exceed 2% of Total Assets at
the time of the default;
(5) the Company, pursuant to or within the meaning of any Bankruptcy
Law, (A) commences a voluntary case or proceeding, (B) consents to the
entry of an order for relief against it in an involuntary case or
proceeding, (C) consents to the
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appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its
creditors, (E) makes an admission in writing of its inability to its
debts generally as they become due or (F) takes corporate action in
furtherance of any such action;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company, in an
involuntary case, (B) adjudges the Company as bankrupt or insolvent, or
approves as properly filed a petition seeking reorganization,
arrangement, and adjustment or composition of or in respect of the
Company, or appoints a Custodian of the Company, or for all or
substantially all of its property, or (C) orders the liquidation of the
Company and the decree remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is or with the giving of notice or the lapse of time would
become an event which is or with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
As used in the Indenture, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar federal or state bankruptcy, insolvency,
reorganization or other law for the relief of debtors. As used in the Indenture,
the term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 5.2. ACCELERATION; RESCISSION AND ANNULMENT. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series
by written notice to the Company (and if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the Original
principal amount as may be specified in the terms of that series) of and accrued
interest, if any, on the Securities of that series to be due and payable and
upon any such declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount) and interest,
if any, shall be immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgement or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.7. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Section 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if
(1) default is made in the payment of any interest on any Security or
coupon, if any, when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or coupons, if any, the whole
amount then due and payable on such Securities for principal, premium,
if any, and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal,
premium, if any, and on any overdue interest, at the rate or rates
prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
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Section 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents and take such actions
authorized under the Trust Indenture Act as may be necessary or advisable in
order to have the claims of the Trustee and the Holders of Securities allowed in
any judicial proceedings relating to the Company, its creditors or its property.
In particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.9.
Section 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee, in its own name as an
express trust, without the possession of any of the Securities or the production
thereof in any proceeding relating thereto and any recovery of judgment shall,
after provision for the reasonable fees and expenses of the Trustee and its
counsel, be for the ratable benefit of the Holders of the Securities in respect
to which judgment was recovered.
Section 5.6. DELAY OR OMISSION NOT WAIVER. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default.
Section 5.7. WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate principal amount of Outstanding Securities of any series by written
notice to the Trustee may waive on behalf of the Holders of all Securities of
such series a past Default or Event of Default with respect to that series and
its consequences except (i) a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
coupon appertaining thereto or (ii) in respect of a covenant or provision hereof
which pursuant to Section 8.2 cannot be amended or modified without the consent
of the Holder of each Outstanding Security of such series affected. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture.
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Section 5.8. CONTROL BY MAJORITY. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it with respect to
Securities of that series; PROVIDED, HOWEVER, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting or that would in the
good faith judgment of the Trustee have a substantial likelihood of involving
the Trustee in personal liability and (iii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. Prior to the taking of any action hereunder, the Trustee shall be
entitled to reasonable indemnification satisfactory to the Trustee against all
losses and expenses caused by taking or not taking such action. This paragraph
shall be in lieu of Section 316(a)(1)(A) of the Trust Indenture Act and such
Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted By the Trust Indenture Act.
Section 5.9. LIMITATION ON SUITS BY HOLDERS. No Holder of any Security
of any series or any coupons appertaining thereto shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
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(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 5.10. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, but subject to Section 9.2, the right of any
Holder of a Security or coupon to receive payment of principal of, premium, if
any, and, subject to Sections 3.5 and 3.7, interest on the Security, on or after
the respective due dates expressed in the Security (or, in case of redemption,
on the redemption dates), and the right of any Holder of a coupon to receive
payment of interest due as provided in such coupon, or, subject to Section 5.9,
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 5.11. APPLICATION OF MONEY COLLECTED. If the Trustee collects
any money pursuant to this Article, it shall pay out the money in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 6.9;
SECOND: to Holders of Securities and coupons in respect of
which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
THIRD: to the Company.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.13. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter or otherwise.
The assertion or employment of any existing right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.15. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of
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the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorney's fees, against any party litigant in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant.
ARTICLE 6
THE TRUSTEE
Section 6.1. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE . (a)
Except during the continuance of an Event of Default, the Trustee's duties and
responsibilities under this Indenture shall be governed by Section 315(a) of the
Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall use the same degree care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Section 6.2. RIGHTS OF TRUSTEE. Subject to the provisions of
the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Trustee need not
investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.3 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection or require an Officers' Certificate. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on a Board Resolution, the written or oral advice of counsel acceptable
to the Company and the Trustee (which advice, if oral, counsel shall promptly
confirm in writing to the Trustee), a certificate of an Officer or Officers
delivered pursuant to Section 1.2, an Officers' Certificate or an Opinion of
Counsel.
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(d) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(f) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may seem fit, and, if the Trustee shall determine to
make such further inquiry or investigation it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney.
(h) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(i) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.2.
Section 6.3. TRUSTEE MAY HOLD SECURITIES. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company in its in individual or
any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or Subsidiary with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
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Section 6.4. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing with the
Company.
Section 6.5. TRUSTEE'S DISCLAIMER. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or and accuracy of this Indenture or the Securities or any coupon.
The Trustee shall not be accountable for the Company's use of the proceeds from
the Securities or for monies paid over to the Company pursuant to the Indenture.
Section 6.6. NOTICE OF DEFAULTS. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to the Trustee,
the Trustee shall, within 90 days after it occurs, transmit by mail to the
Holders of Securities of such series, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, notice of all Defaults known to it
unless such Default shall have been cured or waived; PROVIDED, HOWEVER, that
except in the case of a Default in payment on the Securities of any series, the
Trustee may withhold the notice if and so long as the board of directors, the
executive committee or a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of Holders of
Securities of that series; and PROVIDED, FURTHER, that in the case of any
Default of the character specified in Section 5.1(3) with respect to Securities
of such series, no such notice to Holder shall be given until at least 30 days
after the occurrence thereof.
Section 6.7 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15 of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust Indenture Act a
brief report dated as of such May 15 if required by and in compliance with
Section 313(a) of the Trust Indenture Act. A copy of each such report shall, at
the time of such transmission to Holders, be filed by the Trustee with each
stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the Trustee
when the Securities are listed on any stock exchange.
Section 6.8 SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most
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recent list available to it of the names and addresses of Holders of Securities
of each series. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee semiannually on or before the last day of June and December in
each year, and at such other times as the Trustee may request in writing, a
list, in such form and as of such date as the Trustee may reasonably require
containing all the information in the possession or control of the Registrar,
the Company or any of its Paying Agents other than the Trustee as to the names
and addresses of Holders of Securities of each such series. If there are Bearer
Securities of any series Outstanding, even if the Trustee is the Registrar, the
Company shall furnish to the Trustee such a list containing such information
with respect to Holders of such Bearer Securities only.
Section 6.9. COMPENSATION AND INDEMNITY. (a) The Company shall pay to
the Trustee from time to time such reasonable compensation for its services as
the Company and the Trustee shall agree in writing from time to time. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture, except any such expense
as may be attributable to its negligence or bad faith. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee for, and Predecessor
Trustee, and hold it harmless against, any loss or liability damage, claim or
reasonable expense including taxes (other than taxes based upon or determined or
measured by the income of the Trustee) incurred by it arising out of or in
connection with its acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the
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Securities of any series on all money or property held or collected by the
Trustee, except that held in trust to pay principal, premium, if any, any
interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(5) or Section 5.1(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 6.10. REPLACEMENT OF TRUSTEE. (a) The resignation or removal
of the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for any least
six months, or
(2) the Trustee shall cease to be eligible under Section 6.12
of this Indenture or Section 310(a) of the Trust Indenture Act and
shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge
of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(i) the Company by or pursuant to a Board
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Resolution may remove the Trustee with respect to all Securities, or
(ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition
any court to competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee with respect to the Securities to that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities or any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall
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execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment. Thereupon, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the rights, powers
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
or the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by another such Trustee and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held such
retiring Trustee
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hereunder with respect or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to the successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 1.6. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.12. ELIGIBILITY; DISQUALIFICATION. There shall at all times
be a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect heretofore specified
in this Article.
Section 6.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor to the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by
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the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Whatever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust
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business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
-----------------------------
as Trustee
By
-----------------------------
as Authenticating Agent
By
-----------------------------
Authorized Signatory
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ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. CONSOLIDATION, MERGER OR SALE OF ASSETS PERMITTED. The
Company shall not consolidate or merge with or into, or transfer or lease all or
substantially all of its assets to, any Person unless:
(i) the Person formed by or surviving any such consolidation or any
merger (if other than the Company), or to which such transfer or lease shall
have been made, is a corporation organized and existing under the laws of the
United States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such transfer or lease shall have been
made, assumes by supplemental indenture all the obligations of the Company under
the Securities and this Indenture;
(3) immediately after giving effect to the transaction no Default or
Event of Default exists; and
(4) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by the Securities of any series, the Company or
such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure such Securities equally and ratably with all
indebtedness secured thereby.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided
in clause (2) above, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and any coupons
appertaining thereto and all such obligations of the Company shall terminate.
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ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee at any time and from time to time, may enter into
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants and obligations of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities (and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events of Default are
expressly included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Bearer Securities
(including, without limitation to provide that Bearer Securities may be
registrable as to principal only) or to facilitate the issuance of Securities in
global form; or
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of
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one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(9) if allowed without penalty under applicable laws and regulations,
to permit payment in the United states (including any of the States and District
of Columbia, its territories, its possessions and other areas subject to its
jurisdiction of principal, premium, if any, or interest, if any, on Bearer
Securities or coupons, if any; or
(10) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture, PROVIDED such
action shall not adversely affect the interests of the Holders of Securities of
any series; or
(11) to cure an ambiguity or correct any mistake, PROVIDED such action
shall not adversely affect the interests of the Holders of Securities of any
series.
Section 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of a majority of the aggregate principal amount
of the Outstanding Securities of each series adversely affected by such
supplemental indenture (with the Securities of each series voting as a class),
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto to add any provisions to or
to change or eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the Holders of such
Securities; PROVIDED, HOWEVER, that without the consent of the Holder of each
Outstanding Security affected thereby, a supplemental indenture under this
Section may not:
(1) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if
any, or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon is determined
or reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the Place of Payment where or the currency in which any
Securities or any premium or the interest thereon is payable, or impair
the right to institute
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suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
or
(4) make any change in Section 5.7 or this 8.2(a) except to
increase any percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived with the consent of the
Holders of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.4. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter
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into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 8.5. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this article, this Indenture shall be modified
in accordance therewith and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
Section 8.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities, including any coupons, of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities including any coupons of any series
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.
ARTICLE 9
COVENANTS
Section 9.1. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest together with additional amounts, if any, on the Securities of
that series in accordance with the terms of the Securities of such series, any
coupons appertaining thereto and this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date it is due if
the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
Section 9.2. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issued as Registered Securities, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If
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Securities of a series are issuable as Bearer Securities, the Company will
maintain, (i) subject to any laws or regulations applicable thereto, an office
or agency in a Place of Payment for that series which is located outside the
United States where Securities of that series and related coupons may be
presented and surrendered for payment; PROVIDED, HOWEVER, that if the Securities
of that series are listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the securities
of that series are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a Place by Payment for
that series which is located outside the United States, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in United States, by transfer to an account located in the United States
or upon presentation or surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to an account located
outside the United States; PROVIDED, HOWEVER, that, if the Securities of a
series are denominated and payable in Dollars, payment of principal of and any
premium or interest on any such Bearer Security shall be made at the office of
the Company's Paying Agent located within the United States, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or an agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 9.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST;
UNCLAIMED MONEY. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making to
any payment of principal, premium, if any, or interest on the
Securities; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay,
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to the Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same terms as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security and coupon, if any,
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 9.4. CORPORATE EXISTENCE. Subject to Article 7, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; PROVIDED that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company and not prejudicial in any material respect to the Holders of the
Securities.
Section 9.5. REPORTS BY THE COMPANY. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to section 13 or
section
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15(d) of the Securities Exchange Act of 1934, as amended; or, if the
Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by
such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section 9.5, as may be required by rules and regulations prescribed
from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including information
concerning the Company's compliance with any of its covenants hereunder,
PROVIDED that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder.
Section 9.6. ANNUAL REVIEW CERTIFICATE; NOTICE OF DEFAULTS OR EVENTS OF
DEFAULT (a) The Company covenants and agrees to deliver to the Trustee, within
10 days after the end of each fiscal year of the Company, a certificate from the
principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this Section 9.6,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
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(b) The Company covenants and agrees to deliver to the Trustee, within
a reasonable time after the Company becomes aware of the occurrence of a Default
or an Event of Default of the character specified in Section 5.1(4) hereof,
written notice of the occurrence of such Default or Event of Default.
Section 9.7. BOOKS OF RECORD AND ACCOUNT. The Company will keep proper
books of record and account, either on a consolidated or individual basis. The
Company shall cause its books of record and account to be examined either on a
consolidated or individual basis, by one or more firms of independent public
accountants not less frequently than annually. The Company shall prepare its
financial statements in accordance with generally accepted accounting
principles.
ARTICLE 10
REDEMPTION
Section 10.1. APPLICABILITY OF ARTICLE. Securities (including coupons,
if any) of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in accordance with
this Article.
Section 10.2. ELECTION TO REDEEM NOTICE TO TRUSTEE. The election of the
Company to redeem any Securities, including coupons, if any, shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all the Securities or coupons, if any, of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities (i) prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an election
of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 10.3. SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities
(including coupons, if any) of a series with the same terms are to be redeemed,
the Trustee, not more than 45 days
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prior to the redemption date, shall select the Securities of the series to be
redeemed in such manner as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the Principal
amount of any Security of such series, PROVIDED that the unredeemed portion of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. The Trustee shall make the selection from Securities of the series
that are Outstanding and that have not previously been called for redemption and
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities, including coupons, if any, of that
series or any integral multiple thereof) of the principal amount of Securities,
including coupons, if any, of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected by the Trustee
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. If the Company shall so
direct, Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for
redemption. If less than all the Securities of any series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the Portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4. NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
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(3) if less than all the Outstanding Securities of a series are to be
redeemed, the identification (and in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to surrendered for payment for the
Redemption Price;
(6) that Securities of the series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security, or the portion thereof, to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after said
date;
(8) that the redemption is for a sinking fund, if such is the case;
(9) that unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 10.5. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article 11, segregate and hold in
trust as provided in
81
<PAGE> 89
Section 9.3) an amount of money in the currency or currencies (including
currency unit or units) in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (unless the Redemption Date shall be an Interest Payment Date) interest
accrued to the Redemption Date on, all Securities or portions thereof which are
to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; PROVIDED, HOWEVER, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
to coupons for such interest; and PROVIDED, FURTHER that, unless otherwise
specified as contemplated by Section 3.1, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or
82
<PAGE> 90
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that
interest represented by coupons shall be payable only at an office or agency
located outside of the United States (except as otherwise provided pursuant to
Section 9.2) and, unless otherwise provided as contemplated by Section 3.1, only
upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7. SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part at any Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge a new Security or Securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
83
<PAGE> 91
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied be
delivering and crediting Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
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<PAGE> 92
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CONSECO, INC.
By: /s/ Donald F. Gongaware
--------------------------------
Title: Executive Vice President
{Seal}
Attest:
/s/ John J. Sabl
- - --------------------------------
Secretary
LTCB TRUST COMPANY
By:/s/Barbara Bevelaqua
---------------------------------
Title: Vice President
{Seal}
Attest:
/s/ Lisa Karlsen
- - --------------------------------
Title: Assistant Vice President
85
<PAGE> 1
EXHIBIT 4.20
[Face of Note]
CUSIP NO. _________________ CONSECO, INC. PRINCIPAL AMOUNT: $ _________
REGISTERED NO. FX ___ SENIOR MEDIUM-TERM NOTE, SERIES A
If this Note is a Book-Entry Note, the registered owner of
this Note (as indicated below) is The Depository Trust Company (the
"Depositary") or a nominee of the Depositary, and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer 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.
The following summary of terms is subject to the information
set forth on the reverse hereof:
<TABLE>
<S> <C>
ORIGINAL ISSUE DATE: OPTIONAL REDEMPTION: [ ] YES [ ] NO
INTEREST RATE: INITIAL REDEMPTION DATE:
STATED MATURITY DATE: INITIAL REDEMPTION PERCENTAGE:
AUTHORIZED DENOMINATIONS ANNUAL PERCENTAGE
(If other than $1,000 and integral REDEMPTION REDUCTION:
multiples thereof):
REDEMPTION PRICE: The Initial Redemption Percentage,
FORM: [ ] BOOK-ENTRY as adjusted downward by the Annual Percentage Redemption
[ ] CERTIFICATED Reduction on each anniversary of the Initial Redemption
Date (until the adjusted percentage is 100%), multiplied by the
PAYING AGENT (If other than the Senior Trustee): unpaid Principal Amount of the Note or the portion thereof
to be redeemed.
REGULAR RECORD DATES: OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
INTEREST PAYMENT DATES: OPTIONAL REPAYMENT DATE[S]:
SINKING FUND: [ ] YES [ ] NO OPTIONAL REPAYMENT PRICE[S]:
ORIGINAL ISSUE DISCOUNT: [ ] YES [ ] NO SPECIFIED CURRENCY:
AMORTIZING NOTE: [ ] YES [ ] NO OTHER PROVISIONS:
EXCHANGE RATE AGENT:
DEPOSITARY: ANNEX ATTACHED (and incorporated
by reference herein): [ ] YES [ ] NO
</TABLE>
If this Note was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
<TABLE>
<S> <C>
ORIGINAL ISSUE DISCOUNT NOTE: [ ] Yes [ ] No ISSUE PRICE (expressed
as a percentage of aggregate principal amount):
YIELD TO MATURITY: INITIAL PERIOD:
</TABLE>
<PAGE> 2
CONSECO, INC., a corporation duly organized and existing under
the laws of Indiana (herein called the "Company," which term includes any
successor corporation under the Senior Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
__________________________________________________ or registered assigns, the
principal sum specified above on the Stated Maturity Date shown above, and to
pay interest thereon from and including the Original Issue Date shown above or
from and including the most recent Interest Payment Date (as hereinafter
defined) to which interest has been paid or duly provided for, as the case may
be.
Interest will be paid on the Interest Payment Date or Dates
specified above, at the rate per annum specified above, commencing with the
first such Interest Payment Date next succeeding the Original Issue Date shown
above (except as provided below) until the principal hereof is paid or duly
made available for payment. Interest payments will be made in an amount equal
to the amount accrued from and including the immediately preceding Interest
Payment Date in respect of which interest has been paid or duly made available
for payment (or from and including the date of issue, if no interest has been
paid or duly made available for payment) to but excluding the applicable
Interest Payment Date or the Stated Maturity Date or such prior date on which
the principal hereof becomes due and payable (the "Maturity Date"), as the case
may be. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in such Senior Indenture, be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date specified above
next preceding such Interest Payment Date. The first payment of interest on
any Note originally issued between a Regular Record Date and the next Interest
Payment Date will be made on the Interest Payment Date following the next
succeeding Regular Record Date to the Holder on such next succeeding Regular
Record Date. Except as otherwise provided in the Senior Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date by virtue of their having
been such Holder and may either be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Senior Trustee, notice whereof is to be given to Holders of Notes not less
than 10 calendar days prior to such Special Record Date, or be paid 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 said Senior
Indenture.
Unless otherwise specified above, the Company will make
payments of principal of, and premium, if any, and interest, if any, on this
Note in the Specified Currency specified above. Any such amounts payable by
the Company in the Specified Currency will be converted by the Exchange Rate
Agent specified above into United States dollars for payments to Holders unless
otherwise specified above or the Holder of this Note elects, in the manner
hereinafter described, to receive such amounts in the Specified Currency.
If the Specified Currency is other than United States dollars,
any United States dollar amount to be received by the Holder of this Note will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected
by the Exchange Rate Agent and approved by the Company for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Notes, the Specified Currency for which is
other than United States Dollars, scheduled to receive United States dollar
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the Holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars,
the Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and /or interest, if any, in the
Specified Currency instead of in United States dollars, by submitting a written
request for such payment to the Senior Trustee at its corporate trust office in
The City of New York on or prior to the applicable Record Date or at least
fifteen calendar days prior to the Maturity Date, as the case may be. Such
written request may be mailed or hand delivered or sent by cable, telex or
other form of facsimile transmission. The Holder of this Note may elect to
receive all or a specified portion of all future payments in the Specified
Currency and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Senior Trustee,
but written notice by any such revocation must be received by such Trustee on
or prior to the applicable Record Date or at least fifteen calendar days prior
to the Maturity Date, as the case may be. If this Note is to be held in the
name of a broker or nominee the Holder should contact such broker or nominee to
determine whether and how an election to receive payments in the Specified
Currency may be made.
If this Note is a Book-Entry Note as specified above, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the Company will cause payments of principal
of, premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above,
payments of interest, if any, on this Note on any Interest Payment Date other
than at Stated Maturity Date will be made by check mailed to the address of the
Holder entitled thereto as such address appears in the Security Register of the
Company. Notwithstanding the foregoing, a Holder of $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in such Specified Currency) or more in aggregate principal amount of
certificated Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments, if any, on any Interest Payment
Date other than at Stated Maturity by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing
by the Trustee not less than 15 days prior to such Interest Payment Date.
If the Specified Currency specified above is other than United
States dollars, payments of the principal of, and premium, if any, and/or
interest, if any, on this Note which are to be made in United States dollars
will be made in the manner specified above with respect to Notes denominated in
United States dollars. If the Specified Currency specified above is other than
United States dollars, payments of interest, if any, on this Note which are to
be made in the Specified Currency on an Interest Payment Date other than the
Maturity Date will be made by check mailed to the address of the Holder of this
Note as it appears in the Security Register, subject to the right to receive
such interest payments by wire transfer of immediately available funds under
the circumstances described above. If the Specified Currency specified above
is other than United States dollars, payments of principal of, and premium, if
any, and/or interest, if any, on this Note which are to be made in the
Specified Currency on the Maturity Date will be made by wire transfer of
immediately available funds to an account with a bank designated at least
fifteen calendar days prior to the Maturity Date by the Holder of this Note,
provided that such bank has appropriate facilities therefor and that this Note
is presented and surrendered at the office or agency maintained by the Company
for such purpose in the Borough of Manhattan, The City of New York in time for
the Senior Trustee to make such payments in such funds in accordance with its
normal procedures.
<PAGE> 3
The Company will pay any administrative costs imposed by banks
in connection with making payments by wire transfer, but not any tax,
assessment or governmental charge imposed upon the Holder of this Note. If
this Note is a certificated Note as specified above, payment of the principal,
premium, if any, due on the Maturity Date in respect of this Note will be made
in immediately available funds upon presentation and surrender of this Note at
the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, or its successor as
Trustee, or its Authenticating Agent, by manual signature of an authorized
signatory, this Note will not be entitled to any benefit under the Senior
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
<TABLE>
<S> <C>
CONSECO, INC.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities
issued under the within-mentioned Senior Indenture.
By:______________________________________________
Its:_____________________________________________
LTCB TRUST COMPANY,
as Trustee
Attest:__________________________________________
By:____________________________________________ Its:_____________________________________________
Authorized Officer
</TABLE>
<PAGE> 4
[Reverse of Note]
CONSECO, INC.
SENIOR MEDIUM-TERM NOTE, SERIES A
SECTION 1. General. This Note is one of a series of
Securities of the Company issued under an Indenture, dated as of November 13,
1997, as amended from time to time (the "Senior Indenture"), between the
Company and LTCB Trust Company, as trustee (the "Senior Trustee"), to which
Senior Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Senior Trustee and the Holders of
the Notes and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the Securities designated on
the face hereof. The Notes may bear different dates, mature at different
times, bear interest at different rates, be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, and may
otherwise vary, all as provided in the Senior Indenture.
SECTION 2. Payments. Interest on this Note will be payable on
January 15 and July 15 of each year or on such other date(s) specified on the
face hereof (each, an "Interest Payment Date") and on the Maturity Date.
Unless otherwise specified in on the face hereof, interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date(s) or the Maturity Date falls on a day
that is not a Business Day, the required payment of principal, premium, if any,
and/or interest will be made on the next succeeding Business Day as if made on
the date such payment was due, and no interest will accrue on such payment for
the period from and after such Interest Payment Date or the Maturity Date, as
the case may be, to the date of such payment on the next succeeding Business
Day.
SECTION 3. Redemption. This Note will be redeemable at the
option of the Company prior to the Stated Maturity Date only if an Initial
Redemption Date is specified on the face hereof. If so specified, this Note
will be subject to redemption at the option of the Company on any date on and
after the Initial Redemption Date in whole or from time to time in part in
increments of $1,000 or the minimum denomination, if any, specified on the face
hereof (provided that any remaining principal amount hereof will be at least
$1,000 or such minimum denomination), at the Redemption Price specified on the
face hereof, together with unpaid interest accrued hereon to the date of
redemption, on written notice given to the Holder hereof not more than 60 nor
less than 30 calendar days prior to the date of redemption and in accordance
with the provisions of the Senior Indenture. In the event of redemption of
this Note in part only, this Note will be cancelled and a new Note or Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof.
SECTION 4. Repayment. This Note will be repayable by the
Company at the option of the Holder hereof prior to the Stated Maturity Date
only if one or more Optional Repayment Dates are specified on the face hereof.
If so specified, this Note will be subject to repayment at the option of the
Holder hereof on any Optional Repayment Date in whole or from time to time in
part in increments of $1,000 or such other minimum denomination specified on
the face hereof (provided that any remaining principal amount hereof will be at
least $1,000 or such other minimum denomination), at a repayment price equal to
100% of the unpaid principal amount, or such other repayment price specified on
the face hereof, to be repaid, together with unpaid interest accrued heron to
but excluding the date of repayment. For this Note to be repaid, it must be
received, together with the form thereon entitled "Option to Elect Repayment"
duly completed, by the Senior Trustee at its office maintained for such purpose
in the Borough of Manhattan, The City of New York, not more than 60 nor less
than 30 calendar days prior to the date of repayment. Exercise of such
repayment option by the Holder will be irrevocable.
Only the Depositary may exercise the repayment option if this Note is
a Book-Entry Note as specified on the face hereof. Accordingly, if the
beneficial owner hereof, if this is a Book-Entry Note, desires to have all or
any portion of the Book-Entry Note repaid they must instruct the participant
through which they own their interest to direct the Depositary to exercise the
repayment option on their behalf by delivering this Note and duly completed
election form to the Senior Trustee as aforesaid. In order to ensure that this
Note and election form are received by such Senior Trustee on a particular day,
the beneficial owner hereof must so instruct the participant through which they
own their interest before such participant's deadline for accepting
instructions for that day. Different firms may have different deadlines for
accepting instructions from their customers. Accordingly, the beneficial owner
hereof should consult the participants through which they own their interest
for the respective deadlines for such participants. All instructions given to
participants from beneficial owners of Book-Entry Notes relating to the option
to elect repayment will be irrevocable. In addition, at the time such
instructions are given, the beneficial owner of this Note shall cause the
participant through which it owns its interest to transfer such beneficial
owner's interest in the Book-Entry Note, on the Depositary's records, to the
Senior Trustee.
SECTION 5. Sinking Fund. This Note is not subject to a
sinking fund unless otherwise specified on the face hereof.
SECTION 6. Discount Notes. If the Issue Price of this Note
(as specified on the face hereof) is less than 100% of the principal amount
hereof (i.e. par) by more than a percentage equal to the product of 0.25% and
the number of full years to the Stated Maturity Date (a "Discount Note"), the
difference between the Issue Price of this Note and par is referred to herein
as the "Discount." In the event of redemption, repayment or acceleration of
maturity of this Note, the amount payable to the Holder hereof will be equal to
the sum of (i) the Issue Price (increased by any accruals of Discount) and, in
the event of any redemption of this Note (if applicable), multiplied by the
Initial Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest accrued hereon to the
date of such redemption, repayment or acceleration of maturity, as the case may
be (the "Amortized Face Amount").
Unless otherwise specified on the face hereof, for purposes of
determining the amount of Discount that has accrued as of any date on which a
redemption, repayment or acceleration of maturity occurs for this Note, such
Discount will be accrued using a constant yield method. The constant yield
will be calculated using a 30-day month, 360-day year convention, a compounding
period that, except for the Initial Period (as hereinafter defined),
corresponds to the shortest period between Interest Payment Dates for this Note
(with ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the date of issue to
the initial Interest Payment Date for this Note (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period with the short period
being treated as provided in the preceding sentence.
SECTION 7. Amortizing Notes. If this Note is an Amortizing
Note as specified on the face hereof, unless otherwise specified on the face
hereof, interest on this Note will be computed on the basis of a 360-day year
of twelve 30-day months. Payments with respect to this Note if it is an
Amortizing Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. Further
information concerning additional terms and provisions of Amortizing Notes will
be set forth on the Annex attached hereto, which Annex will for all purposes
have the same effect as if set forth at this place.
<PAGE> 5
SECTION 8. Events of Default. If any Event of Default with
respect to Notes of this series will occur and be continuing, the principal of
the Notes of this series may be declared due and payable in the manner and with
the effect provided in the Senior Indenture; provided, however, that
notwithstanding anything herein to the contrary, if this Note is a Discount
Note, the amount so declared to be due and payable will be the Amortized Face
Amount of this Note as of the date of such declaration as specified under
Section 6.
SECTION 9. Modification or Waiver; Obligation of the Company
Absolute. The Senior Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Senior Indenture at any time by the
Company and the Senior Trustee with the consent of the Holders of not less than
a majority in principal amount of the outstanding Securities of each series to
be affected. The Senior Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the outstanding
Securities of each series, on behalf of the Holders of all Securities of such
series, to waive, with respect to the Securities of such series, compliance by
the Company with certain provisions of the Senior Indenture and certain past
defaults under the Senior Indenture and their consequences. Any such consent
or waiver by the Holder of this Note will be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Senior Indenture and no provision
of this Note or of the Senior Indenture will 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 times, places and rates,
herein prescribed.
SECTION 10. Discharge, Legal Defeasance and Covenant
Defeasance. The Senior Indenture contains provisions for defeasance at any
time of (a) the entire indebtedness of the Company on this Note and (b)
certain restrictive covenants and the related Events of Default upon compliance
by the Company with certain conditions specified therein, which provisions
apply to this Note.
SECTION 11. Authorized Denominations. Unless otherwise
specified on the face hereof, the Notes of this series are issuable only in
global or certificated registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. As provided in the Senior Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, Notes of this series are exchangeable for Notes
of this series of like aggregate principal amount and like Stated Maturity and
with like terms and conditions of a different authorized denomination, as
requested by the Holder surrendering the same.
SECTION 12. Registration of Transfer. As provided in the
Senior Indenture and subject to certain limitations therein specified and to
the limitations described below, if applicable, the transfer of this Note is
registerable in the Security Register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
that purpose duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar (which
will initially be the Senior Trustee at its principal corporate trust office
located in the Borough of Manhattan, The City of New York) duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of this series with like terms and conditions, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face
hereof, this Note is exchangeable for certificated Notes only upon the terms
and conditions provided in the Senior Indenture. Except as provided in the
Senior Indenture, owners of beneficial interests in this Book-Entry Note will
not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Senior Indenture.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
SECTION 13. Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Senior Trustee and any agent of
the Company or the Senior Trustee may treat the Person in whose name this Note
is registered as the owner hereof for all purposes, whether or not this Note be
overdue and notwithstanding any notation of ownership or other writing hereon,
and none of the Company, the Senior Trustee or any such agent will be affected
by notice to the contrary.
SECTION 14. Governing Law. The Senior Indenture and the
Notes will be governed by and construed in accordance with the laws of the
State of New York.
SECTION 15. Defined Terms. All terms used in this Note which
are defined in the Senior Indenture will have the meanings assigned to them in
the Senior Indenture unless otherwise defined herein; and all references in the
Senior Indenture to "Security" or "Securities" will be deemed to include the
Notes.
<PAGE> 6
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or portion hereof
below designated at the applicable Optional Repayment Price indicated on the
face hereof, plus accrued and unpaid interest to but excluding the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note. If
a portion of this Note is not being repaid, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
<TABLE>
<S> <C>
Dated:____________________________________________ _______________________________________________
Signature
Sign exactly as name appears on the front of this Note.
Indicate address where check is to be sent, if repaid:
Principal amount to be repaid if amount to be repaid
is less than the entire principal amount of this Note _______________________________________________
(principal amount remaining must be an authorized
denomination) _______________________________________________
$________________________________________________
(which will be an integral multiple of $1,000)
Denomination or denominations of the Note or Notes to SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
be issued for the portion of this Note not being
repaid _______________________________________________
_________________________________________________
_________________________________________________
</TABLE>
<PAGE> 7
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, will be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
<TABLE>
<S> <C>
UNIF GIFT MIN ACT Custodian
----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
----------------------------------
/ /
- - ----------------------------------
- - --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________ _______________________________________
Signature
Sign exactly as name appears on the
front of this Note [SIGNATURE MUST BE
GUARANTEED by a member of a recognized
Medallion Guarantee Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 4.21
[Face of Note]
CUSIP NO. _________________ CONSECO, INC. PRINCIPAL AMOUNT: $ _______
REGISTERED NO. FX ___ SUBORDINATED MEDIUM-TERM NOTE, SERIES A
If this Note is a Book-Entry Note, the registered owner of
this Note (as indicated below) is The Depository Trust Company (the
"Depositary") or a nominee of the Depositary, and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer 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.
The following summary of terms is subject to the information
set forth on the reverse hereof:
<TABLE>
<S> <C>
ORIGINAL ISSUE DATE: OPTIONAL REDEMPTION: [ ] YES [ ] NO
INTEREST RATE: INITIAL REDEMPTION DATE:
STATED MATURITY DATE: INITIAL REDEMPTION PERCENTAGE:
AUTHORIZED DENOMINATIONS ANNUAL PERCENTAGE
(If other than $1,000 and integral REDEMPTION REDUCTION:
multiples thereof):
REDEMPTION PRICE: The Initial Redemption Percentage,
FORM: [ ] BOOK-ENTRY as adjusted downward by the Annual Percentage Redemption
[ ] CERTIFICATED Reduction on each anniversary of the Initial Redemption
Date (until the adjusted percentage is 100%), multiplied by the
PAYING AGENT (If other than the Subordinated Trustee): unpaid Principal Amount of the Note or the portion thereof
to be redeemed.
REGULAR RECORD DATES: OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
INTEREST PAYMENT DATES: OPTIONAL REPAYMENT DATE[S]:
SINKING FUND: [ ] YES [ ] NO
OPTIONAL REPAYMENT PRICE[S]:
ORIGINAL ISSUE DISCOUNT: [ ] YES [ ] NO SPECIFIED CURRENCY:
AMORTIZING NOTE: [ ] YES [ ] NO OTHER PROVISIONS:
EXCHANGE RATE AGENT:
DEPOSITARY: ANNEX ATTACHED (and incorporated
by reference herein): [ ] YES [ ] NO
</TABLE>
If this Note was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
<TABLE>
<S> <C>
ORIGINAL ISSUE DISCOUNT NOTE: [ ] Yes [ ] No ISSUE PRICE (expressed
as a percentage of aggregate principal amount):
YIELD TO MATURITY: INITIAL PERIOD:
</TABLE>
<PAGE> 2
CONSECO, INC., a corporation duly organized and existing under
the laws of Indiana (herein called the "Company," which term includes any
successor corporation under the Subordinated Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
__________________________________________________ or registered assigns, the
principal sum specified above on the Stated Maturity Date shown above, and to
pay interest thereon from and including the Original Issue Date shown above or
from and including the most recent Interest Payment Date (as hereinafter
defined) to which interest has been paid or duly provided for, as the case may
be.
Interest will be paid on the Interest Payment Date or Dates
specified above, at the rate per annum specified above, commencing with the
first such Interest Payment Date next succeeding the Original Issue Date shown
above (except as provided below) until the principal hereof is paid or duly
made available for payment. Interest payments will be made in an amount equal
to the amount accrued from and including the immediately preceding Interest
Payment Date in respect of which interest has been paid or duly made available
for payment (or from and including the date of issue, if no interest has been
paid or duly made available for payment) to but excluding the applicable
Interest Payment Date or the Stated Maturity Date or such prior date on which
the principal hereof becomes due and payable (the "Maturity Date"), as the case
may be. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in such Subordinated Indenture, be
paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the Regular Record Date specified
above next preceding such Interest Payment Date. The first payment of interest
on any Note originally issued between a Regular Record Date and the next
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Regular Record Date to the Holder on such next succeeding
Regular Record Date. Except as otherwise provided in the Subordinated
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of their having been such Holder and may either be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Subordinated Trustee, notice whereof is to be given
to Holders of Notes not less than 10 calendar days prior to such Special Record
Date, or be paid 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 said Subordinated Indenture.
Unless otherwise specified above, the Company will make
payments of principal of, and premium, if any, and interest, if any, on this
Note in the Specified Currency specified above. Any such amounts payable by
the Company in the Specified Currency will be converted by the Exchange Rate
Agent specified above into United States dollars for payments to Holders unless
otherwise specified above or the Holder of this Note elects, in the manner
hereinafter described, to receive such amounts in the Specified Currency.
If the Specified Currency is other than United States dollars,
any United States dollar amount to be received by the Holder of this Note will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected
by the Exchange Rate Agent and approved by the Company for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Notes, the Specified Currency for which is
other than United States Dollars, scheduled to receive United States dollar
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the Holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars,
the Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and /or interest, if any, in the
Specified Currency instead of in United States dollars by submitting a written
request for such payment to the Subordinated Trustee at its corporate trust
office in The City of New York on or prior to the applicable Record Date or at
least fifteen calendar days prior to the Maturity Date, as the case may be.
Such written request may be mailed or hand delivered or sent by cable, telex or
other form of facsimile transmission. The Holder of this Note may elect to
receive all or a specified portion of all future payments in the Specified
Currency and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Subordinated
Trustee, but written notice by any such revocation must be received by such
Trustee on or prior to the applicable Record Date or at least fifteen calendar
days prior to the Maturity Date, as the case may be. If this Note is to be
held in the name of a broker or nominee the Holder should contact such broker
or nominee to determine whether and how an election to receive payments in the
Specified Currency may be made.
If this Note is a Book-Entry Note as specified above, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the Company will cause payments of principal
of, premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above,
payments of interest, if any, on this Note on any Interest Payment Date other
than at Stated Maturity Date will be made by check mailed to the address of the
Holder entitled thereto as such address appears in the Security Register of the
Company. Notwithstanding the foregoing, a Holder of $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in such Specified Currency) or more in aggregate principal amount of
certificated Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments, if any, on any Interest Payment
Date other than at Stated Maturity by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing
by the Trustee not less than 15 days prior to such Interest Payment Date.
If the Specified Currency specified above is other than United
States dollars, payments of the principal of, and premium, if any, and/or
interest, if any, on this Note which are to be made in United States dollars
will be made in the manner specified above with respect to Notes denominated in
United States dollars. If the Specified Currency specified above is other than
United States dollars, payments of interest, if any, on this Note which are to
be made in the Specified Currency on an Interest Payment Date other than the
Maturity Date will be made by check mailed to the address of the Holder of this
Note as it appears in the Security Register, subject to the right to receive
such interest payments by wire transfer of immediately available funds under
the circumstances described above. If the Specified Currency specified above
is other than United States dollars, payments of principal of, and premium, if
any, and/or interest, if any, on this Note which are to be made in the
Specified Currency on the Maturity Date will be made by wire transfer of
immediately available funds to an account with a bank designated at least
fifteen calendar days prior to the Maturity Date by the Holder of this Note,
provided that such bank has appropriate facilities therefor and that this Note
is presented and surrendered at the office or agency maintained by the Company
for such purpose in the Borough of Manhattan, The City of New York in time for
the Subordinated Trustee to make such payments in such funds in accordance with
its normal procedures.
<PAGE> 3
The Company will pay any administrative costs imposed by banks
in connection with making payments by wire transfer, but not any tax,
assessment or governmental charge imposed upon the Holder of this Note. If
this Note is a certificated Note as specified above, payment of the principal,
premium, if any, due on the Maturity Date in respect of this Note will be made
in immediately available funds upon presentation and surrender of this Note at
the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, or its successor as
Trustee, or its Authenticating Agent, by manual signature of an authorized
signatory, this Note will not be entitled to any benefit under the Subordinated
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
<TABLE>
<S> <C>
Dated:
CONSECO, INC.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities
issued under the within-mentioned Subordinated Indenture.
By:______________________________________________
Its:_____________________________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
Attest:__________________________________________
By:____________________________________________ Its:_____________________________________________
Authorized Officer
</TABLE>
<PAGE> 4
[Reverse of Note]
CONSECO, INC.
SUBORDINATED MEDIUM-TERM NOTE, SERIES A
SECTION 1. General. This Note is one of a series of
Securities of the Company issued under an Indenture, dated as of November 14,
1996, as amended from time to time (the "Subordinated Indenture"), between the
Company and State Street Bank and Trust Company, successor to Fleet National
Bank, as trustee (the "Subordinated Trustee"), to which Subordinated Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Subordinated Trustee and the Holders
of the Notes and of the terms upon which the Securities are, and are to be,
authenticated and delivered. All Securities, including this Note, issued and
to be issued under the Subordinated Indenture will be unsecured and will be
subordinate and junior in right of payment, to the extent and in the manner set
forth in the Subordinated Indenture, to all Senior Indebtedness (as defined in
the Subordinated Indenture). This Note is one of the Securities designated on
the face hereof. The Notes may bear different dates, mature at different
times, bear interest at different rates, be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, and may
otherwise vary, all as provided in the Subordinated Indenture.
SECTION 2. Payments. Interest on this Note will be payable on
January 15 and July 15 of each year or on such other date(s) specified on the
face hereof (each, an "Interest Payment Date") and on the Maturity Date.
Unless otherwise specified on the face hereof, interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date(s) or the Maturity Date of a Fixed Rate
Note falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and/or interest will be made on the next succeeding
Business Day as if made on the date such payment was due, and no interest will
accrue on such payment for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be, to the date of such payment on the
next succeeding Business Day.
SECTION 3. Redemption. This Note will be redeemable at the
option of the Company prior to the Stated Maturity Date only if an Initial
Redemption Date is specified on the face hereof. If so specified, this Note
will be subject to redemption at the option of the Company on any date on and
after the Initial Redemption Date in whole or from time to time in part in
increments of $1,000 or the minimum denomination, if any, specified on the face
hereof (provided that any remaining principal amount hereof will be at least
$1,000 or such minimum denomination), at the Redemption Price specified on the
face hereof, together with unpaid interest accrued hereon to the date of
redemption, on written notice given to the Holder hereof not more than 60 nor
less than 30 calendar days prior to the date of redemption and in accordance
with the provisions of the Subordinated Indenture. In the event of redemption
of this Note in part only, this Note will be cancelled and a new Note or Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof.
SECTION 4. Repayment. This Note will be repayable by the
Company at the option of the Holder hereof prior to the Stated Maturity Date
only if one or more Optional Repayment Dates are specified on the face hereof.
If so specified, this Note will be subject to repayment at the option of the
Holder hereof on any Optional Repayment Date in whole or from time to time in
part in increments of $1,000 or such other minimum denomination specified on
the face hereof (provided that any remaining principal amount hereof will be at
least $1,000 or such other minimum denomination), at a repayment price equal to
100% of the unpaid principal amount, or such other repayment price specified on
the face hereof, to be repaid, together with unpaid interest accrued heron to
but excluding the date of repayment. For this Note to be repaid, it must be
received, together with the form thereon entitled "Option to Elect Repayment"
duly completed, by the Subordinated Trustee at its office maintained for such
purpose in the Borough of Manhattan, The City of New York, not more than 60 nor
less than 30 calendar days prior to the date of repayment. Exercise of such
repayment option by the Holder will be irrevocable.
Only the Depositary may exercise the repayment option if this Note is
a Book-Entry Note as specified on the face hereof. Accordingly, if the
beneficial owner hereof, if this is a Book-Entry Note, desires to have all or
any portion of the Book-Entry Note repaid they must instruct the participant
through which they own their interest to direct the Depositary to exercise the
repayment option on their behalf by delivering this Note and duly completed
election form to the Subordinated Trustee as aforesaid. In order to ensure
that this Note and election form are received by such Subordinated Trustee on a
particular day, the beneficial owner hereof must so instruct the participant
through which they own their interest before such participant's deadline for
accepting instructions for that day. Different firms may have different
deadlines for accepting instructions from their customers. Accordingly, the
beneficial owner hereof should consult the participants through which they own
their interest for the respective deadlines for such participants. All
instructions given to participants from beneficial owners of Book-Entry Notes
relating to the option to elect repayment will be irrevocable. In addition, at
the time such instructions are given, the beneficial owner of this Note shall
cause the participant through which it owns its interest to transfer such
beneficial owner's interest in the Book-Entry Note, on the Depositary's
records, to the Subordinated Trustee.
SECTION 5. Sinking Fund. This Note is not subject to a
sinking fund unless otherwise specified on the face hereof.
SECTION 6. Discount Notes. If the Issue Price of this Note
(as specified on the face hereof) is less than 100% of the principal amount
hereof (i.e. par) by more than a percentage equal to the product of 0.25% and
the number of full years to the Stated Maturity Date (a "Discount Note"), the
difference between the Issue Price of this Note and par is referred to herein
as the "Discount." In the event of redemption, repayment or acceleration of
maturity of this Note, the amount payable to the Holder hereof will be equal to
the sum of (i) the Issue Price (increased by any accruals of Discount) and, in
the event of any redemption of this Note (if applicable), multiplied by the
Initial Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest accrued hereon to the
date of such redemption, repayment or acceleration of maturity, as the case may
be (the "Amortized Face Amount").
Unless otherwise specified on the face hereof, for purposes of
determining the amount of Discount that has accrued as of any date on which a
redemption, repayment or acceleration of maturity occurs for this Note, such
Discount will be accrued using a constant yield method. The constant yield
will be calculated using a 30-day month, 360-day year convention, a compounding
period that, except for the Initial Period (as hereinafter defined),
corresponds to the shortest period between Interest Payment Dates for this Note
(with ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the date of issue to
the initial Interest Payment Date for this Note (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period with the short period
being treated as provided in the preceding sentence.
SECTION 7. Amortizing Notes. If this Note is an Amortizing
Note as specified on the face hereof, unless otherwise specified on the face
hereof, interest on this Note will be computed on the basis of a 360-day year
of twelve 30-day months. Payments with respect to this Note if it is an
Amortizing Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. Further
information concerning
<PAGE> 5
additional terms and provisions of Amortizing Notes will be set forth on the
Annex attached hereto, which Annex will for all purposes have the same effect
as if set forth at this place.
SECTION 8. Events of Default. If any Event of Default with
respect to Notes of this series will occur and be continuing, the principal of
the Notes of this series may be declared due and payable in the manner and with
the effect provided in the Subordinated Indenture; provided, however, that
notwithstanding anything herein to the contrary, if this Note is a Discount
Note, the amount so declared to be due and payable will be the Amortized Face
Amount of this Note as of the date of such declaration as specified under
Section 6.
SECTION 9. Modification or Waiver; Obligation of the Company
Absolute. The Subordinated Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Subordinated Indenture at any time by the
Company and the Subordinated Trustee with the consent of the Holders of not
less than a majority in principal amount of the outstanding Securities of each
series to be affected. The Subordinated Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
outstanding Securities of each series, on behalf of the Holders of all
Securities of such series, to waive, with respect to the Securities of such
series, compliance by the Company with certain provisions of the Subordinated
Indenture and certain past defaults under the Subordinated Indenture and their
consequences. Any such consent or waiver by the Holder of this Note will be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Subordinated Indenture and no
provision of this Note or of the Subordinated Indenture will 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 times,
places and rates, herein prescribed.
SECTION 10. Discharge, Legal Defeasance and Covenant
Defeasance. The Subordinated Indenture contains provisions for defeasance at
any time of (a) the entire indebtedness of the Company on this Note and (b)
certain restrictive covenants and the related Events of Default upon compliance
by the Company with certain conditions specified therein, which provisions
apply to this Note.
SECTION 11. Authorized Denominations. Unless otherwise
specified on the face hereof, the Notes of this series are issuable only in
global or certificated registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. As provided in the Subordinated
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, Notes of this series are
exchangeable for Notes of this series of like aggregate principal amount and
like Stated Maturity and with like terms and conditions of a different
authorized denomination, as requested by the Holder surrendering the same.
SECTION 12. Registration of Transfer. As provided in the
Subordinated Indenture and subject to certain limitations therein specified and
to the limitations described below, if applicable, the transfer of this Note is
registerable in the Security Register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
that purpose duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar (which
will initially be the Subordinated Trustee at its principal corporate trust
office located in the Borough of Manhattan, The City of New York) duly executed
by the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes of this series with like terms and conditions, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face
hereof, this Note is exchangeable for certificated Notes only upon the terms
and conditions provided in the Subordinated Indenture. Except as provided in
the Subordinated Indenture, owners of beneficial interests in this Book-Entry
Note will not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Subordinated Indenture.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
SECTION 13. Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Subordinated Trustee and any
agent of the Company or the Subordinated Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note be overdue and notwithstanding any notation of ownership or other
writing hereon, and none of the Company, the Subordinated Trustee or any such
agent will be affected by notice to the contrary.
SECTION 14. Governing Law. The Subordinated Indenture and
the Notes will be governed by and construed in accordance with the laws of the
State of New York.
SECTION 15. Defined Terms. All terms used in this Note which
are defined in the Subordinated Indenture will have the meanings assigned to
them in the Subordinated Indenture unless otherwise defined herein; and all
references in the Subordinated Indenture to "Security" or "Securities" will be
deemed to include the Notes.
<PAGE> 6
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or portion hereof
below designated at the applicable Optional Repayment Price indicated on the
face hereof, plus accrued and unpaid interest to but excluding the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note. If
a portion of this Note is not being repaid, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
<TABLE>
<S> <C>
Dated:____________________________________________ _______________________________________________
Signature
Sign exactly as name appears on the front of this Note.
Indicate address where check is to be sent, if repaid:
Principal amount to be repaid if amount to be repaid
is less than the entire principal amount of this Note _______________________________________________
(principal amount remaining must be an authorized
denomination) _______________________________________________
$________________________________________________
(which will be an integral multiple of $1,000)
Denomination or denominations of the Note or Notes to SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
be issued for the portion of this Note not being
repaid _______________________________________________
_________________________________________________
_________________________________________________
</TABLE>
<PAGE> 7
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, will be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
<TABLE>
<S> <C>
UNIF GIFT MIN ACT Custodian
----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------
/ /
- - ---------------------------------
- - --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________ _______________________________________
Signature
Sign exactly as name appears on the
front of this Note [SIGNATURE MUST BE
GUARANTEED by a member of a recognized
Medallion Guarantee Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 4.22
[Face of Note]
CUSIP NO. _________________ CONSECO, INC. PRINCIPAL AMOUNT: $ _______
REGISTERED NO. FL ___ SENIOR MEDIUM-TERM NOTE, SERIES A
If this Note is a Book-Entry Note, the registered owner of
this Note (as indicated below) is The Depository Trust Company (the
"Depositary") or a nominee of the Depositary, and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer 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.
The following summary of terms is subject to the information
set forth on the reverse hereof:
<TABLE>
<S> <C>
INTEREST OPTIONAL REDEMPTION: [ ] YES [ ] NO
CALCULATION: [ ] REGULAR FLOATING RATE NOTE
[ ] FLOATING RATE/FIXED RATE NOTE
FIXED RATE COMMENCEMENT DATE:
FIXED INTEREST RATE:
[ ] INVERSE FLOATING RATE
FIXED INTEREST RATE:
[ ] OTHER FLOATING RATE NOTE (see attached)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: INITIAL REDEMPTION PERCENTAGE:
ANNUAL PERCENTAGE
REDEMPTION REDUCTION:
REDEMPTION PRICE: The Initial Redemption Percentage,
as adjusted downward by the Annual Percentage Redemption
AUTHORIZED DENOMINATIONS Reduction on each anniversary of the Initial Redemption
(If other than $1,000 and integral Date (until the adjusted percentage is 100%), multiplied by the
multiples thereof): unpaid Principal Amount of the Note or the portion thereof
to be redeemed.
FORM: [ ] BOOK-ENTRY OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
[ ] CERTIFICATED
PAYING AGENT (If other than the Senior Trustee): OPTIONAL REPAYMENT DATE[S]:
INTEREST CALCULATION:
INTEREST RATE BASIS: OPTIONAL REPAYMENT PRICE[S]:
INDEX MATURITY:
REGULAR RECORD DATES: DAY COUNT CONVENTION:
INTEREST PAYMENT DATES:
INITIAL INTEREST RATE: SPECIFIED CURRENCY:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
SPREAD:
SPREAD MULTIPLIER: OTHER PROVISIONS:
INTEREST RESET PERIOD:
INTEREST RESET DATES: ANNEX ATTACHED (and incorporated
by reference herein): [ ] YES [ ] NO
INTEREST DETERMINATION DATES:
</TABLE>
<PAGE> 2
SINKING FUND: [ ] YES [ ] NO
CALCULATION AGENT:
EXCHANGE RATE AGENT:
ORIGINAL ISSUE DISCOUNT: [ ] YES [ ] NO
AMORTIZING NOTE: [ ] YES [ ] NO
DEPOSITARY:
If this Note was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
<TABLE>
<S> <C>
ORIGINAL ISSUE DISCOUNT NOTE: [ ] Yes [ ] No ISSUE PRICE (expressed
as a percentage of aggregate principal amount):
YIELD TO MATURITY: INITIAL PERIOD:
</TABLE>
CONSECO, INC., a corporation duly organized and existing under
the laws of Indiana (herein called the "Company," which term includes any
successor corporation under the Senior Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
__________________________________________________ or registered assigns, the
principal sum specified above on the Stated Maturity Date shown above, and to
pay interest thereon from and including the Original Issue Date shown above or
from and including the most recent Interest Payment Date (as hereinafter
defined) to which interest has been paid or duly provided for, as the case may
be.
Interest will be paid on the Interest Payment Date or Dates
specified above, at the rate per annum determined in accordance with the
provisions on the reverse hereof, depending on the Interest Rate Basis, the
Spread, if any, and/or the Spread Multiplier, if any, specified above,
commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below) until the principal
hereof is paid or duly made available for payment. Interest payments will be
made in an amount equal to the amount accrued from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly made available for payment (or from and including the date of
issue, if no interest has been paid or duly made available for payment) to but
excluding the applicable Interest Payment Date or the Stated Maturity Date or
such prior date on which the principal hereof becomes due and payable (the
"Maturity Date"), as the case may be. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, as provided in
such Senior Indenture, be paid to the Person in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on the Regular
Record Date specified above next preceding such Interest Payment Date. The
first payment of interest on any Note originally issued between a Regular
Record Date and the next Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to the Holder on
such next succeeding Regular Record Date. Except as otherwise provided in the
Senior Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of their having been such Holder and may either be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Senior Trustee, notice whereof is to be given to
Holders of Notes not less than 10 calendar days prior to such Special Record
Date, or be paid 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 said Senior Indenture.
Unless otherwise specified above, the Company will make
payments of principal of, and premium, if any, and interest, if any, on this
Note in the Specified Currency specified above. Any such amounts payable by
the Company in the Specified Currency will be converted by the Exchange Rate
Agent specified above into United States dollars for payments to Holders unless
otherwise specified above or the Holder of this Note elects, in the manner
hereinafter described, to receive such amounts in the Specified Currency.
If the Specified Currency is other than United States dollars,
any United States dollar amount to be received by the Holder of this Note will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected
by the Exchange Rate Agent and approved by the Company for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Notes, the Specified Currency for which is
other than United States Dollars, scheduled to receive United States dollar
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the Holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars,
the Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and /or interest, if any, in the
Specified Currency, instead of in United States dollars, by submitting a
written request for such payment to the Senior Trustee at its corporate trust
office in The City of New York on or prior to the applicable Record Date or at
least fifteen calendar days prior to the Maturity Date, as the case may be.
Such written request may be mailed or hand delivered or sent by cable, telex or
other form of facsimile transmission. The Holder of this Note may elect to
receive all or a specified portion of all future payments in the Specified
Currency and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Senior Trustee,
but written notice by any such revocation must be received by such Trustee on
or prior to the applicable Record Date or at least fifteen calendar days prior
to the Maturity Date, as the case may be. If this Note is to be held in the
name of a broker or nominee the Holder should contact such broker or nominee to
determine whether and how an election to receive payments in the Specified
Currency may be made.
If this Note is a Book-Entry Note as specified above, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the Company will cause payments of principal
of, premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
<PAGE> 3
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above,
payments of interest, if any, on this Note on any Interest Payment Date other
than at Stated Maturity Date will be made by check mailed to the address of the
Holder entitled thereto as such address appears in the Security Register of the
Company. Notwithstanding the foregoing, a Holder of $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in such Specified Currency) or more in aggregate principal amount of
certificated Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments, if any, on any Interest Payment
Date other than at Stated Maturity by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing
by the Trustee not less than 15 days prior to such Interest Payment Date.
If the Specified Currency specified above is other than United
States dollars, payments of the principal of, and premium, if any, and/or
interest, if any, on this Note which are to be made in United States dollars
will be made in the manner specified above with respect to Notes denominated in
United States dollars. If the Specified Currency specified above is other than
United States dollars, payments of interest, if any, on this Note which are to
be made in the Specified Currency on an Interest Payment Date other than the
Maturity Date will be made by check mailed to the address of the Holder of this
Note as it appears in the Security Register, subject to the right to receive
such interest payments by wire transfer of immediately available funds under
the circumstances described above. If the Specified Currency specified above
is other than United States dollars, payments of principal of, and premium, if
any, and/or interest, if any, on this Note which are to be made in the
Specified Currency on the Maturity Date will be made by wire transfer of
immediately available funds to an account with a bank designated at least
fifteen calendar days prior to the Maturity Date by the Holder of this Note,
provided that such bank has appropriate facilities therefor and that this Note
is presented and surrendered at the office or agency maintained by the Company
for such purpose in the Borough of Manhattan, The City of New York in time for
the Senior Trustee to make such payments in such funds in accordance with its
normal procedures.
The Company will pay any administrative costs imposed by banks
in connection with making payments by wire transfer, but not any tax,
assessment or governmental charge imposed upon the Holder of this Note. If
this Note is a certificated Note as specified above, payment of the principal,
premium, if any, due on the Maturity Date in respect of this Note will be made
in immediately available funds upon presentation and surrender of this Note at
the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, or its successor as
Trustee, or its Authenticating Agent, by manual signature of an authorized
signatory, this Note will not be entitled to any benefit under the Senior
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
<TABLE>
<S> <C>
Dated:
CONSECO, INC.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities
issued under the within-mentioned Senior Indenture. By:______________________________________________
Its:_____________________________________________
LTCB TRUST COMPANY,
as Trustee
Attest:__________________________________________
By:____________________________________________ Its:_____________________________________________
Authorized Officer
</TABLE>
<PAGE> 4
[Reverse of Note]
CONSECO, INC.
SENIOR MEDIUM-TERM NOTE, SERIES A
SECTION 1. General. This Note is one of a series of
Securities of the Company issued under an Indenture, dated as of November 13,
1997, as amended from time to time (the "Senior Indenture"), between the
Company and LTCB Trust Company, as trustee (the "Senior Trustee"), to which
Senior Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Senior Trustee and the Holders of
the Notes and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the Securities designated on
the face hereof. The Notes may bear different dates, mature at different
times, bear interest at different rates, be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, and may
otherwise vary, all as provided in the Senior Indenture.
SECTION 2. Interest Rate Calculations; Payments. The
interest rate borne by this Note will be determined as follows:
(i) Unless it is specified on the face hereof that this
Note is a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate
Note" or has an Annex attached, or that "Other Provisions" apply, in
each case relating to a different interest rate formula, this Note
will be designated as a "Regular Floating Rate Note" and, except as
described below or as specified on the face hereof, will bear interest
at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the applicable Spread, if any, and/or
(b) multiplied by the applicable Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable will be reset as of each
Interest Reset Date; provided, however, that the interest rate in
effect for the period, if any, from the date of issue to the Initial
Interest Reset Date will be the Initial Interest Rate.
(ii) If it is specified on the face hereof that this Note
is a "Floating Rate/Fixed Rate Note," then, except as described below
or as specified on the face hereof, this Note will bear interest at
the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the applicable Spread, if any, and/or (b)
multiplied by the applicable Spread Multiplier, if any. Commencing on
the Initial Interest Reset Date, the rate at which interest on this
Note will be payable will be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the
period, if any, from the date of issue to the Initial Interest Reset
Date will be the Initial Interest Rate and (z) the interest rate in
effect for the period commencing on the Fixed Rate Commencement Date
to the Maturity Date shall be the Fixed Interest Rate, if such rate is
specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect thereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If it is specified on the face hereof that this Note
is an "Inverse Floating Rate Note," then, except as described below or
on the face hereof, this Note will bear interest at the Fixed Interest
Rate minus the rate determined by reference to the applicable Interest
Rate Basis or Bases (a) plus or minus the applicable Spread, if any,
and/or (b) multiplied by the applicable Spread Multiplier, if any;
provided, however, that, unless otherwise specified on the face
hereof, the interest rate thereon will not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at which
interest on such Inverse Floating Rate Note will be payable will be
reset as of each Interest Reset Date; provided, however, that the
interest rate in effect for the period, if any, from the date of issue
to the Initial Interest Reset Date will be the Initial Interest Rate.
The "Spread" is the number of basis points to be added to or
subtracted from the related Interest Rate Basis or Bases applicable to this
Note. The "Spread Multiplier" is the percentage of the related Interest Rate
Basis or Bases applicable to this Note by which such Interest Rate Basis or
Bases will be multiplied to determine the applicable interest rate on this
Note. The "Index Maturity" is the period to maturity of the instrument or
obligation with respect to which the related Interest Rate Basis or Bases will
be calculated.
Unless otherwise specified on the face hereof, the interest rate with
respect to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as specified on the face hereof, the
interest rate in effect on each day will be (i) if such day is an Interest
Reset Date, the interest rate determined as of the Interest Determination Date
(as hereinafter defined) immediately preceding such Interest Reset Date or (ii)
if such day is not an Interest Reset Date, the interest rate determined as of
the Interest Determination Date immediately preceding the most recent Interest
Reset Date.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually or on such other specified basis
(each, an "Interest Reset Period," the first day of each Interest Reset Period
being an "Interest Reset Date"), as specified on the face hereof. Unless
otherwise specified on the face hereof, the Interest Reset Dates will be, if
this Note resets: (i) daily, each Business Day; (ii) weekly, the Wednesday of
each week (unless the Interest Rate Basis specified on the face hereof is
Treasury Rate, which will reset the Tuesday of each week, except as described
below); (iii) monthly, the third Wednesday of each month (unless the Interest
Rate Basis specified on the face hereof is Eleventh District Cost of Funds
Rate, which will reset on the first calendar day of the month); (iv) quarterly,
the third Wednesday of March, June, September and December of each year; (v)
semiannually, the third Wednesday of the two months specified on the face
hereof; and (vi) annually, the third Wednesday of the month specified on the
face hereof; provided however, that, if this Note is a Floating Rate/Fixed Rate
Notes, the rate of interest hereon will not reset after the applicable Fixed
Rate Commencement Date, as specified on the face hereof. If any Interest Reset
Date for this Note would otherwise be a day that is not a Business Day, such
Interest Reset Date will be postponed to the next succeeding Business Day,
except that if LIBOR is an applicable Interest Rate Basis specified on the face
hereof and such Business Day falls in the next succeeding calendar month, such
Interest Reset Date will be the immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be the rate determined by the
Calculation Agent (as hereinafter defined) as of the applicable Interest
Determination Date and calculated on or prior to the Calculation Date (as
hereinafter defined), except with respect to LIBOR and the Eleventh District
Cost of Funds Rate, which will be calculated on such Interest Determination
Date. Unless otherwise specified on the face hereof, the "Interest
Determination Date," if the Interest Rate Basis specified on the face hereof is
CD Rate, CMT Rate, Commercial Paper Rate, Federal Funds Rate or Prime Rate,
will be the second Business Day immediately preceding the applicable Interest
Reset Date; the "Interest Determination Date," if the Interest Rate Basis
specified on the face hereof is Eleventh District Cost of Funds Rate, will be
the last working day of the month immediately preceding the applicable Interest
Reset Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of
San Francisco") publishes the Index (as hereinafter defined); and the "Interest
Determination Date," if the Interest Rate Basis specified on the face hereof is
LIBOR, will be the second London Business Day immediately preceding the
applicable Interest Reset Date, unless the Designated LIBOR Currency is British
pounds sterling, in which case the "Interest Determination Date" will be the
applicable Interest Reset Date. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the "Interest Determination Date" will be the day
in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as hereinafter defined) are normally auctioned (Treasury Bills
are normally sold at an auction held on Monday of each week, unless that day is
a legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
provided, however, that if an auction is
<PAGE> 5
held on the Friday of the week preceding the applicable Interest Reset Date,
the "Interest Determination Date" will be such preceding Friday; provided,
further, that if the Interest Determination Date would otherwise fall on an
Interest Reset Date, then such Interest Reset Date will be postponed to the
next succeeding Business Day. If the interest rate specified on the face
hereof is determined by reference to two or more Interest Rate Bases, the
"Interest Determination Date" will be the most recent Business Day which is at
least two Business Days prior to the applicable Interest Reset Date for this
Note on which each Interest Rate Basis is determinable. Each Interest Rate
Basis will be determined as of such date, and the applicable interest rate will
take effect on the applicable Interest Reset Date.
Notwithstanding the foregoing, this Note may also have either or both
of the following, as specified on the face hereof: (i) a Maximum Interest Rate,
or ceiling, that may accrue during any Interest Period and (ii) a Minimum
Interest Rate, or floor, that may accrue during any Interest Period. In
addition to any Maximum Interest Rate specified on the face hereof, the
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
Except as set forth below, if the Specified Currency, if other than
United States dollars, specified on the face hereof is not available for the
required payment of principal, premium, if any, and/or interest, if any, in
respect thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to the Holder of this Note by making such payment in
United States dollars on the basis of the Market Exchange Rate (as defined
below), computed by the Exchange Rate Agent, on the second Business Day prior
to such payment or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate, or as otherwise
specified on the face hereof.
If the Specified Currency specified on the face hereof is a composite
currency that is not available for the required payment of principal, premium,
if any, and/or interest, if any, in respect thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company, the
Company will be entitled to satisfy its obligations to the Holder of this Note
by making such payment in United States dollars on the basis of the equivalent
of the composite currency in United States dollars. The component currencies
of the composite currency for this purpose (the "Component Currencies") will be
the currency amounts that were components of the composite currency as of the
last day on which the composite currency was used. The equivalent of the
composite currency in United States dollars shall be calculated by aggregating
the United States dollar equivalents of the Component Currencies. The United
States dollar equivalent of each of the Component Currencies will be determined
by the Exchange Rate Agent on the basis of the Market Exchange Rate on the
second Business Day prior to the required payment or, if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified on
the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency will be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies will be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
The "Market Exchange Rate" for a Specified Currency other than United
States dollars means the noon dollar buying rate in The City of New York for
cable transfers for such Specified Currency as certified for customs purposes
(or, if not so certified, as otherwise determined) by the Federal Reserve Bank
of New York. Any payment made in United States dollars under the circumstances
set forth above where the required payment is in a Specified Currency other
than United States dollars will not constitute an Event of Default under the
Senior Indenture with respect to this Note.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Except as provided below or as specified on the face hereof, interest
will be payable, if this Note resets: (i) daily, weekly or monthly, on the
third Wednesday of each month or on the third Wednesday of March, June,
September and December of each year, as specified on the face hereof; (ii)
quarterly, on the third Wednesday of March, June, September and December of
each year; (iii) semiannually, on the third Wednesday of the two months of each
year specified on the face hereof; and (iv) annually, on the third Wednesday of
the month of each year specified on the face hereof (each, an "Interest Payment
Date" with respect to this Note) and, in each case, on the Maturity Date. If
any Interest Payment Date other than the Maturity Date for this Note would
otherwise be a day that is not a Business Day, such Interest Payment Date will
be postponed to the next succeeding Business Day, except that if LIBOR is
specified on the face hereof as an applicable Interest Rate Basis and such
Business Day falls in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day. If the Maturity Date of
this Note falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and interest will be made on the next succeeding
Business Day as if made on the date such payment was due, and no interest will
accrue on such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with
five-one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all amounts used in
or resulting from such calculation on this Note will be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a foreign or
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
Accrued interest on this Note is calculated by multiplying its
principal amount by an accrued interest factor. Such accrued interest factor is
computed by adding the interest factor calculated for each day in the
applicable Interest Period. Unless otherwise specified on the face hereof, the
interest factor for each such day will be computed by dividing the interest
rate applicable to such day by 360, if the Interest Rate Basis specified on the
face hereof is CD Rate, Commercial Paper Rate, Eleventh District Cost of Funds
Rate, Federal Funds Rate, LIBOR or Prime Rate, or by the actual number of days
in the year if the Interest Rate Basis specified on the face hereof is CMT Rate
or Treasury Rate. Unless otherwise specified on the face hereof, the interest
factor for this Note if the interest rate is calculated with reference to two
or more Interest Rate Bases will be calculated in each period in the same
manner as if only the applicable Interest Rate Basis specified on the face
hereof applied.
Unless otherwise specified on the face hereof, the Senior Trustee will
be the "Calculation Agent" with respect to this Note. Upon request of the
Holder of this Note, the Calculation Agent will disclose the interest rate then
in effect and, if determined, the interest rate that will become effective as a
result of a determination made for the next succeeding Interest Reset Date with
respect to such Floating Rate Note. Unless otherwise specified on the face
hereof, the "Calculation Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be.
Unless otherwise specified on the face hereof, the Calculation Agent
will determine each Interest Rate Basis in accordance with the following
provisions.
<PAGE> 6
DETERMINATION OF CD RATE. Unless otherwise specified, if the Interest
Rate Basis specified on the face hereof is the CD Rate, with respect to any
Interest Determination Date (a "CD Rate Interest Determination Date"), such
rate will equal the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face hereof
as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication ("H.15(519)") under the heading "CDs (Secondary Market)," or, if
not published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such CD Rate Interest Determination Date for negotiable
United States dollar certificates of deposit of the Index Maturity specified on
the face hereof as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit." If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New
York City time, on such CD Rate Interest Determination Date, of three leading
nonbank dealers in negotiable United States dollar certificates of deposit in
The City of New York (which may include the Agents or their affiliates)
selected by the Calculation Agent for negotiable United States dollar
certificates of deposit of major United States money center banks for
negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is representative
for a single transaction in that market at that time; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the CD Rate determined as of such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
DETERMINATION OF CMT RATE. Unless otherwise specified, if the
Interest Rate Basis specified on the face hereof is the CMT Rate, with respect
to any Interest Determination Date (a "CMT Rate Interest Determination Date"),
such rate will equal the rate displayed on the Designated CMT Telerate Page
under the caption "...Treasury Constant Maturities...Federal Reserve Board
Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or the month, as applicable, ended
immediately preceding the week or the month, as applicable, in which the
related CMT Rate Interest Determination Date falls. If such rate is no longer
displayed on the relevant page or is not displayed by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index as published in H.15(519). If such rate is
no longer published or is not published by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in H.15(519). If such information is not provided by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate on the
CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers in The City of New York (which may include the Agents or their
affiliates) (each, a "Reference Dealer") selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offered rates as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offered
rates obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers so
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the Calculation Agent will obtain quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on such service) for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified on the face hereof, the Designated CMT Telerate
Page will be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated or, if no such maturity is specified on the face hereof, 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE. Unless otherwise specified,
if the Interest Rate Basis specified on the face hereof is Commercial Paper
Rate, with respect to any Interest Determination Date (a "Commercial Paper Rate
Interest Determination Date"), such rate will equal the Money Market Yield (as
hereinafter defined) on such date of the rate for commercial paper having the
Index Maturity specified on the face hereof as published in H.15(519) under the
heading "Commercial Paper-Nonfinancial". In the event that such rate is not
published by 3:00 P.M., New York City time, on the related Calculation Date,
then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be the Money Market Yield of the rate for commercial
paper having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on the related Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the Money Market Yield of the arithmetic mean
of the offered rates at approximately 11:00 A.M., New York City time, on such
Commercial Paper Rate Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity specified on the face hereof placed
for an industrial issuer whose bond rating is "Aa", or the equivalent, from a
nationally recognized statistical rating organization; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = --------------- X 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the applicable Interest Reset Period.
<PAGE> 7
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. Unless
otherwise specified, if the Interest Rate Basis specified on the face hereof is
Eleventh District Cost of Funds Rate, with respect to any Interest
Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), such rate will equal the rate equal to the monthly
weighted average cost of funds for the calendar month immediately preceding the
month in which such Eleventh District Cost of Funds Rate Interest Determination
Date falls, as set forth under the caption "11th District" on Telerate Page
7058 as of 11:00 A.M., San Francisco time, on such Eleventh District Cost of
Funds Rate Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate on such
Eleventh District Cost of Funds Rate Interest Determination Date will be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index
on or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
DETERMINATION OF FEDERAL FUNDS RATE. Unless otherwise specified, if
the Interest Rate Basis specified on the face hereof is Federal Funds Rate,
with respect to any Interest Determination Date (a "Federal Funds Rate Interest
Determination Date"), such rate will equal the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such Federal Funds Rate
Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds
Rate Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight United States dollar federal funds arranged by three leading brokers
of federal funds transactions in The City of New York (which may include the
Agents or their affiliates) selected by the Calculation Agent prior to 9:00
A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be
the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
DETERMINATION OF LIBOR. Unless otherwise specified, if the Interest
Rate Basis specified on the face hereof is LIBOR:
(i) With respect to any Interest Determination Date (a
"LIBOR Interest Determination Date"), LIBOR will be either: (a) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean
of the offered rates (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate will
be used) for deposits in the Designated LIBOR Currency having the
Index Maturity specified on the face hereof, commencing on the
applicable Interest Reset Date, that appear (or, if only a single rate
is required as aforesaid, appears) on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, or
(b) if "LIBOR Telerate" is specified on the face hereof or if neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof
as the method for calculating LIBOR, the rate for deposits in the
Designated LIBOR Currency having the Index Maturity specified on the
face hereof, commencing on such Interest Reset Date, that appears on
the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates so
appear, or if no such rate so appears, as applicable, LIBOR on such
LIBOR Interest Determination Date will be determined in accordance
with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear, or no rate appears, as
the case may be, on the Designated LIBOR Page as specified in clause
(i) above, the Calculation Agent will request the principal London
offices of each of four major reference banks (which may include
affiliates of the Agents) in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its
offered quotation for deposits in the Designated LIBOR Currency for
the period of the Index Maturity specified on the face hereof,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated
LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three
major banks (which may include affiliates of the Agents) in such
Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading European banks, having the
Index Maturity specified on the face hereof and in a principal amount
that is representative for a single transaction in the Designated
LIBOR Currency in such market at such time; provided, however, that if
the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR will be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on the Dow Jones Telerate Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency.
"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency (unless the Specified Currency is European Units
("ECU"), in which case it is also the display designated "ISDE" on the Reuter
Monitor Money Rate Service or the ECU Banking Association) or (ii) the capital
city of the country to which the Designated LIBOR Currency, if applicable,
relates (or, in the case of ECU, Luxembourg), except, in each case, that with
respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan (solely in the case of clause (i) above) and Zurich,
respectively.
DETERMINATION OF PRIME RATE. Unless otherwise specified, if the
Interest Rate Basis specified on the face hereof is Prime Rate, with respect to
any Interest Determination Date (a "Prime Rate Interest Determination Date"),
such rate will equal the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate will be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
hereinafter defined) as such bank's prime rate or base lending rate as in
effect for such Prime Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Interest Determination Date, then the Prime Rate will be the arithmetic mean of
the prime rates or base lending rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of the close of business on
such Prime Rate
<PAGE> 8
Interest Determination Date by four major money center banks (which may include
affiliates of the Agents) in The City of New York selected by the Calculation
Agent. If fewer than four such quotations are so provided, then the Prime Rate
will be the arithmetic mean of four prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date as furnished in The
City of New York by the major money center banks, if any, that have provided
such quotations and by a reasonable number of substitute banks or trust
companies (which may include affiliates of the Agents) to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least $500 million and being
subject to supervision or examination by Federal or State authority, selected
by the Calculation Agent to provide such rate or rates; provided, however, that
if the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "USPRIME1" page (or such
other page as may replace the USPRIME1 page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
DETERMINATION OF TREASURY RATE. Unless otherwise specified, if the
Interest Rate Basis specified on the face hereof is Treasury Rate, with respect
to any Interest Determination Date (a "Treasury Rate Interest Determination
Date"), such rate will equal the rate from the auction held on such Treasury
Rate Interest Determination Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as such rate is published in H.15(519) under the heading "Treasury
Bills-auction average (investment)" or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the auction average rate of such
Treasury Bills (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the results
of the Auction of Treasury Bills having the Index Maturity specified on the
face hereof are not reported as provided by 3:00 P.M., New York City time, on
the related Calculation Date, or if no such Auction is held, then the Treasury
Rate will be calculated by the Calculation Agent and will be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers (which may include the
Agents or their affiliates) selected by the Calculation Agent, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
SECTION 3. Redemption. This Note will be redeemable at the
option of the Company prior to the Stated Maturity Date only if an Initial
Redemption Date is specified on the face hereof. If so specified, this Note
will be subject to redemption at the option of the Company on any date on and
after the Initial Redemption Date in whole or from time to time in part in
increments of $1,000 or the minimum denomination, if any, specified on the face
hereof (provided that any remaining principal amount hereof will be at least
$1,000 or such minimum denomination), at the Redemption Price specified on the
face hereof, together with unpaid interest accrued hereon to the date of
redemption, on written notice given to the Holder hereof not more than 60 nor
less than 30 calendar days prior to the date of redemption and in accordance
with the provisions of the Senior Indenture. In the event of redemption of
this Note in part only, this Note will be cancelled and a new Note or Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof.
SECTION 4. Repayment. This Note will be repayable by the
Company at the option of the Holder hereof prior to the Stated Maturity Date
only if one or more Optional Repayment Dates are specified on the face hereof.
If so specified, this Note will be subject to repayment at the option of the
Holder hereof on any Optional Repayment Date in whole or from time to time in
part in increments of $1,000 or such other minimum denomination specified on
the face hereof (provided that any remaining principal amount hereof will be at
least $1,000 or such other minimum denomination), at a repayment price equal to
100% of the unpaid principal amount, or such repayment pricespecified on the
face hereof, to be repaid, together with unpaid interest accrued heron to but
excluding the date of repayment. For this Note to be repaid, it must be
received, together with the form thereon entitled "Option to Elect Repayment"
duly completed, by the Senior Trustee at its office maintained for such purpose
in the Borough of Manhattan, The City of New York, not more than 60 nor less
than 30 calendar days prior to the date of repayment. Exercise of such
repayment option by the Holder will be irrevocable.
Only the Depositary may exercise the repayment option if this Note is
a Book-Entry Note as specified on the face hereof. Accordingly, if the
beneficial owner hereof, if this is a Book-Entry Note, desires to have all or
any portion of the Book-Entry Note repaid they must instruct the participant
through which they own their interest to direct the Depositary to exercise the
repayment option on their behalf by delivering this Note and duly completed
election form to the Senior Trustee as aforesaid. In order to ensure that this
Note and election form are received by such Senior Trustee on a particular day,
the beneficial owner hereof must so instruct the participant through which they
own their interest before such participant's deadline for accepting
instructions for that day. Different firms may have different deadlines for
accepting instructions from their customers. Accordingly, the beneficial owner
hereof should consult the participants through which they own their interest
for the respective deadlines for such participants. All instructions given to
participants from beneficial owners of Book-Entry Notes relating to the option
to elect repayment will be irrevocable. In addition, at the time such
instructions are given, the beneficial owner of this Note shall cause the
participant through which it owns its interest to transfer such beneficial
owner's interest in the Book-Entry Note, on the Depositary's records, to the
Senior Trustee.
SECTION 5. Sinking Fund. This Note is not subject to a
sinking fund unless otherwise specified on the face hereof.
SECTION 6. Discount Notes. If the Issue Price of this Note
(as specified on the face hereof) is less than 100% of the principal amount
hereof (i.e. par) by more than a percentage equal to the product of 0.25% and
the number of full years to the Stated Maturity Date (a "Discount Note"), the
difference between the Issue Price of this Note and par is referred to herein
as the "Discount." In the event of redemption, repayment or acceleration of
maturity of this Note, the amount payable to the Holder hereof will be equal to
the sum of (i) the Issue Price (increased by any accruals of Discount) and, in
the event of any redemption of this Note (if applicable), multiplied by the
Initial Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest accrued hereon to the
date of such redemption, repayment or acceleration of maturity, as the case may
be (the "Amortized Face Amount").
Unless otherwise specified on the face hereof, for purposes of
determining the amount of Discount that has accrued as of any date on which a
redemption, repayment or acceleration of maturity occurs for this Note, such
Discount will be accrued using a constant yield method. The constant yield
will be calculated using a 30-day month, 360-day year convention, a compounding
period that, except for the Initial Period (as hereinafter defined),
corresponds to the shortest period between Interest Payment Dates for this Note
(with ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the date of issue to
the initial Interest Payment Date for this Note (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period with the short period
being treated as provided in the preceding sentence.
<PAGE> 9
SECTION 7. Indexed Notes. If this Note is an Indexed Note as
specified on the face hereof, the amount of principal, premium and/or interest
payable in respect hereof will be determined with reference to the price or
prices of specified commodities or stocks, to the exchange rate of one or more
designated currencies (including a composite currency such as the ECU) relative
to an indexed currency or to other items, in each case as specified on the face
hereof. Holders of Indexed Notes may receive a principal payment on the
Maturity Date that is greater than or less than the principal amount of such
Indexed Notes depending upon the relative value on the Maturity Date of the
specified indexed item. Information as to the method for determining the
amount of principal, premium, if any, and/or interest, if any, payable in
respect of Indexed Notes will be set forth on the Annex attached hereto, which
will for all purposes have the same effect as if set forth at this place.
SECTION 8. Amortizing Notes. If this Note is an Amortizing
Note as specified on the face hereof, unless otherwise specified on the face
hereof, interest on this Note will be computed on the basis of a 360-day year
of twelve 30-day months. Payments with respect to this Note if it is an
Amortizing Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. Further
information concerning additional terms and provisions of Amortizing Notes will
be set forth on the Annex attached hereto, which Annex will for all purposes
have the same effect as if set forth at this place.
SECTION 9. Events of Default. If any Event of Default with
respect to Notes of this series will occur and be continuing, the principal of
the Notes of this series may be declared due and payable in the manner and with
the effect provided in the Senior Indenture; provided, however, that
notwithstanding anything herein to the contrary, if this Note is a Discount
Note, the amount so declared to be due and payable will be the Amortized Face
Amount of this Note as of the date of such declaration as specified under
Section 6.
SECTION 10. Modification or Waiver; Obligation of the Company
Absolute. The Senior Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Senior Indenture at any time by the
Company and the Senior Trustee with the consent of the Holders of not less than
a majority in principal amount of the outstanding Securities of each series to
be affected. The Senior Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the outstanding
Securities of each series, on behalf of the Holders of all Securities of such
series, to waive, with respect to the Securities of such series, compliance by
the Company with certain provisions of the Senior Indenture and certain past
defaults under the Senior Indenture and their consequences. Any such consent
or waiver by the Holder of this Note will be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Senior Indenture and no provision
of this Note or of the Senior Indenture will 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 times, places and rates,
herein prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant
Defeasance. The Senior Indenture contains provisions for defeasance at any
time of (a) the entire indebtedness of the Company on this Note and (b)
certain restrictive covenants and the related Events of Default upon compliance
by the Company with certain conditions specified therein, which provisions
apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise
specified on the face hereof, the Notes of this series are issuable only in
global or certificated registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. As provided in the Senior Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, Notes of this series are exchangeable for Notes
of this series of like aggregate principal amount and like Stated Maturity and
with like terms and conditions of a different authorized denomination, as
requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the
Senior Indenture and subject to certain limitations therein specified and to
the limitations described below, if applicable, the transfer of this Note is
registerable in the Security Register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
that purpose duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar (which
will initially be the Senior Trustee at its principal corporate trust office
located in the Borough of Manhattan, The City of New York) duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of this series with like terms and conditions, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face
hereof, this Note is exchangeable for certificated Notes only upon the terms
and conditions provided in the Senior Indenture. Except as provided in the
Senior Indenture, owners of beneficial interests in this Book-Entry Note will
not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Senior Indenture.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Senior Trustee and any agent of
the Company or the Senior Trustee may treat the Person in whose name this Note
is registered as the owner hereof for all purposes, whether or not this Note be
overdue and notwithstanding any notation of ownership or other writing hereon,
and none of the Company, the Senior Trustee or any such agent will be affected
by notice to the contrary.
SECTION 15. Governing Law. The Senior Indenture and the
Notes will be governed by and construed in accordance with the laws of the
State of New York.
SECTION 16. Defined Terms. All terms used in this Note which
are defined in the Senior Indenture will have the meanings assigned to them in
the Senior Indenture unless otherwise defined herein; and all references in the
Senior Indenture to "Security" or "Securities" will be deemed to include the
Notes.
<PAGE> 10
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or portion hereof
below designated at the applicable Optional Repayment Price indicated on the
face hereof, plus accrued and unpaid interest to but excluding the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note. If
a portion of this Note is not being repaid, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
<TABLE>
<S> <C>
Dated:____________________________________________ _______________________________________________
Signature
Sign exactly as name appears on the front of this Note.
Indicate address where check is to be sent, if repaid:
Principal amount to be repaid if amount to be repaid
is less than the entire principal amount of this Note _______________________________________________
(principal amount remaining must be an authorized
denomination) _______________________________________________
$________________________________________________
(which will be an integral multiple of $1,000)
Denomination or denominations of the Note or Notes to SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
be issued for the portion of this Note not being
repaid _______________________________________________
_________________________________________________
_________________________________________________
</TABLE>
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, will be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
<TABLE>
<S> <C>
UNIF GIFT MIN ACT Custodian
----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
/ /
- - ------------------------------
- - -------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________ _______________________________________
Signature
Sign exactly as name appears on the
front of this Note [SIGNATURE MUST BE
GUARANTEED by a member of a recognized
Medallion Guarantee Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 4.23
[Face of Note]
CUSIP NO. _________________ CONSECO, INC. PRINCIPAL AMOUNT: $ _______
REGISTERED NO. FL ___ SUBORDINATED MEDIUM-TERM NOTE, SERIES A
If this Note is a Book-Entry Note, the registered owner of
this Note (as indicated below) is The Depository Trust Company (the
"Depositary") or a nominee of the Depositary, and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer 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.
The following summary of terms is subject to the information
set forth on the reverse hereof:
<TABLE>
<S> <C>
INTEREST OPTIONAL REDEMPTION: [ ] YES [ ] NO
CALCULATION: [ ] REGULAR FLOATING RATE NOTE
[ ] FLOATING RATE/FIXED RATE NOTE
FIXED RATE COMMENCEMENT DATE:
FIXED INTEREST RATE:
[ ] INVERSE FLOATING RATE
FIXED INTEREST RATE:
[ ] OTHER FLOATING RATE NOTE (see attached)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: INITIAL REDEMPTION PERCENTAGE:
ANNUAL PERCENTAGE
REDEMPTION REDUCTION:
REDEMPTION PRICE: The Initial Redemption Percentage,
as adjusted downward by the Annual Percentage Redemption
AUTHORIZED DENOMINATIONS Reduction on each anniversary of the Initial Redemption
(If other than $1,000 and integral Date (until the adjusted percentage is 100%), multiplied by the
multiples thereof): unpaid Principal Amount of the Note or the portion thereof
to be redeemed.
FORM: [ ] BOOK-ENTRY OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
[ ] CERTIFICATED
PAYING AGENT (If other than the Subordinated Trustee): OPTIONAL REPAYMENT DATE[S]:
INTEREST CALCULATION:
INTEREST RATE BASIS: OPTIONAL REPAYMENT PRICE[S]:
INDEX MATURITY:
REGULAR RECORD DATES: DAY COUNT CONVENTION:
INTEREST PAYMENT DATES:
INITIAL INTEREST RATE: SPECIFIED CURRENCY:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
SPREAD:
SPREAD MULTIPLIER: OTHER PROVISIONS:
INTEREST RESET PERIOD:
INTEREST RESET DATES: ANNEX ATTACHED (and incorporated
by reference herein): [ ] YES [ ] NO
INTEREST DETERMINATION DATES:
</TABLE>
<PAGE> 2
SINKING FUND: [ ] YES [ ] NO
CALCULATION AGENT:
EXCHANGE RATE AGENT:
ORIGINAL ISSUE DISCOUNT: [ ] YES [ ] NO
AMORTIZING NOTE: [ ] YES [ ] NO
DEPOSITARY:
If this Note was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
<TABLE>
<S> <C>
ORIGINAL ISSUE DISCOUNT NOTE: [ ] Yes [ ] No ISSUE PRICE (expressed
as a percentage of aggregate principal amount):
YIELD TO MATURITY: INITIAL PERIOD:
</TABLE>
CONSECO, INC., a corporation duly organized and existing under
the laws of Indiana (herein called the "Company," which term includes any
successor corporation under the Subordinated Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
__________________________________________________ or registered assigns, the
principal sum specified above on the Stated Maturity Date shown above, and to
pay interest thereon from and including the Original Issue Date shown above or
from and including the most recent Interest Payment Date (as hereinafter
defined) to which interest has been paid or duly provided for, as the case may
be.
Interest will be paid on the Interest Payment Date or Dates
specified above, at the rate per annum determined in accordance with the
provisions on the reverse hereof, depending on the Interest Rate Basis, the
Spread, if any, and/or the Spread Multiplier, if any, specified above,
commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below) until the principal
hereof is paid or duly made available for payment. Interest payments will be
made in an amount equal to the amount accrued from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly made available for payment (or from and including the date of
issue, if no interest has been paid or duly made available for payment) to but
excluding the applicable Interest Payment Date or the Stated Maturity Date or
such prior date on which the principal hereof becomes due and payable (the
"Maturity Date"), as the case may be. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, as provided in
such Subordinated Indenture, be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
Regular Record Date specified above next preceding such Interest Payment Date.
The first payment of interest on any Note originally issued between a Regular
Record Date and the next Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to the Holder on
such next succeeding Regular Record Date. Except as otherwise provided in the
Subordinated Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date by virtue of their having been such Holder and may either be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Subordinated Trustee, notice whereof
is to be given to Holders of Notes not less than 10 calendar days prior to such
Special Record Date, or be paid 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 said Subordinated Indenture.
Unless otherwise specified above, the Company will make
payments of principal of, and premium, if any, and interest, if any, on this
Note in the Specified Currency specified above. Any such amounts payable by
the Company in the Specified Currency will be converted by the Exchange Rate
Agent specified above into United States dollars for payments to Holders unless
otherwise specified above or the Holder of this Note elects, in the manner
hereinafter described, to receive such amounts in the Specified Currency.
If the Specified Currency is other than United States dollars,
any United States dollar amount to be received by the Holder of this Note will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected
by the Exchange Rate Agent and approved by the Company for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Notes, the Specified Currency for which is
other than United States Dollars, scheduled to receive United States dollar
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the Holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars,
the Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and /or interest, if any, in the
Specified Currency, instead of in United States dollars, by submitting a
written request for such payment to the Subordinated Trustee at its corporate
trust office in The City of New York on or prior to the applicable Record Date
or at least fifteen calendar days prior to the Maturity Date, as the case may
be. Such written request may be mailed or hand delivered or sent by cable,
telex or other form of facsimile transmission. The Holder of this Note may
elect to receive all or a specified portion of all future payments in the
Specified Currency and need not file a separate election for each payment.
Such election will remain in effect until revoked by written notice to the
Subordinated Trustee, but written notice by any such revocation must be
received by such Trustee on or prior to the applicable Record Date or at least
fifteen calendar days prior to the Maturity Date, as the case may be. If this
Note is to be held in the name of a broker or nominee the Holder should contact
such broker or nominee to determine whether and how an election to receive
payments in the Specified Currency may be made.
If this Note is a Book-Entry Note as specified above, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the Company will cause payments of principal
of, premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
<PAGE> 3
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above,
payments of interest, if any, on this Note on any Interest Payment Date other
than at Stated Maturity will be made by check mailed to the address of the
Holder entitled thereto as such address appears in the Security Register of the
Company. Notwithstanding the foregoing, a Holder of $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in such Specified Currency) or more in aggregate principal amount of
certificated Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments, if any, on any Interest Payment
Date other than at Stated Maturity by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing
by the Trustee not less than 15 days prior to such Interest Payment Date.
If the Specified Currency specified above is other than United
States dollars, payments of the principal of, and premium, if any, and/or
interest, if any, on this Note which are to be made in United States dollars
will be made in the manner specified above with respect to Notes denominated in
United States dollars. If the Specified Currency specified above is other than
United States dollars, payments of interest, if any, on this Note which are to
be made in the Specified Currency on an Interest Payment Date other than the
Maturity Date will be made by check mailed to the address of the Holder of this
Note as it appears in the Security Register, subject to the right to receive
such interest payments by wire transfer of immediately available funds under
the circumstances described above. If the Specified Currency specified above
is other than United States dollars, payments of principal of, and premium, if
any, and/or interest, if any, on this Note which are to be made in the
Specified Currency on the Maturity Date will be made by wire transfer of
immediately available funds to an account with a bank designated at least
fifteen calendar days prior to the Maturity Date by the Holder of this Note,
provided that such bank has appropriate facilities therefor and that this Note
is presented and surrendered at the office or agency maintained by the Company
for such purpose in the Borough of Manhattan, The City of New York in time for
the Subordinated Trustee to make such payments in such funds in accordance with
its normal procedures.
The Company will pay any administrative costs imposed by banks
in connection with making payments by wire transfer, but not any tax,
assessment or governmental charge imposed upon the Holder of this Note. If
this Note is a certificated Note as specified above, payment of the principal,
premium, if any, due on the Maturity Date in respect of this Note will be made
in immediately available funds upon presentation and surrender of this Note at
the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, or its successor as
Trustee, or its Authenticating Agent, by manual signature of an authorized
signatory, this Note will not be entitled to any benefit under the Subordinated
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
<TABLE>
<S> <C>
Dated:
CONSECO, INC.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities
issued under the within-mentioned Subordinated Indenture. By:______________________________________________
Its:_____________________________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
Attest:__________________________________________
By:____________________________________________ Its:_____________________________________________
Authorized Officer
</TABLE>
<PAGE> 4
[Reverse of Note]
CONSECO, INC.
SUBORDINATED MEDIUM-TERM NOTE, SERIES A
SECTION 1. General. This Note is one of a series of
Securities of the Company issued under an Indenture, dated as of November 14,
1996, as amended from time to time (the "Subordinated Indenture"), between the
Company and State Street Bank and Trust Company, successor to Fleet National
Bank, as trustee (the "Subordinated Trustee"), to which Subordinated Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Subordinated Trustee and the Holders
of the Notes and of the terms upon which the Securities are, and are to be,
authenticated and delivered. All Securities, including this Note, issued and
to be issued under the Subordinated Indenture will be unsecured and will be
subordinate and junior in right of payment, to the extent and in the manner set
forth in the Subordinated Indenture, to all Senior Indebtedness (as defined in
the Subordinated Indenture). This Note is one of the Securities designated on
the face hereof. The Notes may bear different dates, mature at different
times, bear interest at different rates, be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, and may
otherwise vary, all as provided in the Subordinated Indenture.
SECTION 2. Interest Rate Calculations; Payments. The
interest rate borne by this Note will be determined as follows:
(i) Unless it is specified on the face hereof that this
Note is a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate
Note" or has an Annex attached, or that "Other Provisions" apply, in
each case relating to a different interest rate formula, this Note
will be designated as a "Regular Floating Rate Note" and, except as
described below or as specified on the face hereof, will bear interest
at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the applicable Spread, if any, and/or
(b) multiplied by the applicable Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable will be reset as of each
Interest Reset Date; provided, however, that the interest rate in
effect for the period, if any, from the date of issue to the Initial
Interest Reset Date will be the Initial Interest Rate.
(ii) If it is specified on the face hereof that this Note
is a "Floating Rate/Fixed Rate Note," then, except as described below
or as specified on the face hereof, this Note will bear interest at
the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the applicable Spread, if any, and/or (b)
multiplied by the applicable Spread Multiplier, if any. Commencing on
the Initial Interest Reset Date, the rate at which interest on this
Note will be payable will be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the
period, if any, from the date of issue to the Initial Interest Reset
Date will be the Initial Interest Rate and (z) the interest rate in
effect for the period commencing on the Fixed Rate Commencement Date
to the Maturity Date shall be the Fixed Interest Rate, if such rate is
specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect thereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If it is specified on the face hereof that this Note
is an "Inverse Floating Rate Note," then, except as described below or
on the face hereof, this Note will bear interest at the Fixed Interest
Rate minus the rate determined by reference to the applicable Interest
Rate Basis or Bases (a) plus or minus the applicable Spread, if any,
and/or (b) multiplied by the applicable Spread Multiplier, if any;
provided, however, that, unless otherwise specified on the face
hereof, the interest rate thereon will not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at which
interest on such Inverse Floating Rate Note will be payable will be
reset as of each Interest Reset Date; provided, however, that the
interest rate in effect for the period, if any, from the date of issue
to the Initial Interest Reset Date will be the Initial Interest Rate.
The "Spread" is the number of basis points to be added to or
subtracted from the related Interest Rate Basis or Bases applicable to this
Note. The "Spread Multiplier" is the percentage of the related Interest Rate
Basis or Bases applicable to this Note by which such Interest Rate Basis or
Bases will be multiplied to determine the applicable interest rate on this
Note. The "Index Maturity" is the period to maturity of the instrument or
obligation with respect to which the related Interest Rate Basis or Bases will
be calculated.
Unless otherwise specified on the face hereof, the interest rate with
respect to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as specified on the face hereof, the
interest rate in effect on each day will be (i) if such day is an Interest
Reset Date, the interest rate determined as of the Interest Determination Date
(as hereinafter defined) immediately preceding such Interest Reset Date or (ii)
if such day is not an Interest Reset Date, the interest rate determined as of
the Interest Determination Date immediately preceding the most recent Interest
Reset Date.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually or on such other specified basis
(each, an "Interest Reset Period," the first day of each Interest Reset Period
being an "Interest Reset Date"), as specified on the face hereof. Unless
otherwise specified on the face hereof, the Interest Reset Dates will be, if
this Note resets: (i) daily, each Business Day; (ii) weekly, the Wednesday of
each week (unless the Interest Rate Basis specified on the face hereof is
Treasury Rate, which will reset the Tuesday of each week, except as described
below); (iii) monthly, the third Wednesday of each month (unless the Interest
Rate Basis specified on the face hereof is Eleventh District Cost of Funds
Rate, which will reset on the first calendar day of the month); (iv) quarterly,
the third Wednesday of March, June, September and December of each year; (v)
semiannually, the third Wednesday of the two months specified on the face
hereof; and (vi) annually, the third Wednesday of the month specified on the
face hereof; provided however, that, if this Note is a Floating Rate/Fixed Rate
Notes, the rate of interest hereon will not reset after the applicable Fixed
Rate Commencement Date, as specified on the face hereof. If any Interest Reset
Date for this Note would otherwise be a day that is not a Business Day, such
Interest Reset Date will be postponed to the next succeeding Business Day,
except that if LIBOR is an applicable Interest Rate Basis specified on the face
hereof and such Business Day falls in the next succeeding calendar month, such
Interest Reset Date will be the immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be the rate determined by the
Calculation Agent (as hereinafter defined) as of the applicable Interest
Determination Date and calculated on or prior to the Calculation Date (as
hereinafter defined), except with respect to LIBOR and the Eleventh District
Cost of Funds Rate, which will be calculated on such Interest Determination
Date. Unless otherwise specified on the face hereof, the "Interest
Determination Date," if the Interest Rate Basis specified on the face hereof is
CD Rate, CMT Rate, Commercial Paper Rate, Federal Funds Rate or Prime Rate,
will be the second Business Day immediately preceding the applicable Interest
Reset Date; the "Interest Determination Date," if the Interest Rate Basis
specified on the face hereof is Eleventh District Cost of Funds Rate, will be
the last working day of the month immediately preceding the applicable Interest
Reset Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of
San Francisco") publishes the Index (as hereinafter defined); and the "Interest
Determination Date," if the Interest Rate Basis specified on the face hereof is
LIBOR, will be the second London Business Day immediately preceding the
applicable Interest Reset Date, unless the Designated LIBOR Currency is British
pounds sterling, in which case the "Interest Determination Date" will be the
applicable Interest Reset Date. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the "Interest Determination Date" will be the day
in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as hereinafter
<PAGE> 5
defined) are normally auctioned (Treasury Bills are normally sold at an auction
held on Monday of each week, unless that day is a legal holiday, in which case
the auction is normally held on the following Tuesday, except that such auction
may be held on the preceding Friday); provided, however, that if an auction is
held on the Friday of the week preceding the applicable Interest Reset Date,
the "Interest Determination Date" will be such preceding Friday; provided,
further, that if the Interest Determination Date would otherwise fall on an
Interest Reset Date, then such Interest Reset Date will be postponed to the
next succeeding Business Day. If the interest rate specified on the face
hereof is determined by reference to two or more Interest Rate Bases, the
"Interest Determination Date" will be the most recent Business Day which is at
least two Business Days prior to the applicable Interest Reset Date for this
Note on which each Interest Rate Basis is determinable. Each Interest Rate
Basis will be determined as of such date, and the applicable interest rate will
take effect on the applicable Interest Reset Date.
Notwithstanding the foregoing, this Note may also have either or both
of the following, as specified on the face hereof: (i) a Maximum Interest Rate,
or ceiling, that may accrue during any Interest Period and (ii) a Minimum
Interest Rate, or floor, that may accrue during any Interest Period. In
addition to any Maximum Interest Rate specified on the face hereof, the
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
Except as set forth below, if the Specified Currency, if other than
United States dollars, specified on the face hereof is not available for the
required payment of principal, premium, if any, and/or interest, if any, in
respect thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to the Holder of this Note by making such payment in
United States dollars on the basis of the Market Exchange Rate (as defined
below), computed by the Exchange Rate Agent, on the second Business Day prior
to such payment or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate, or as otherwise
specified on the face hereof.
If the Specified Currency specified on the face hereof is a composite
currency that is not available for the required payment of principal, premium,
if any, and/or interest, if any, in respect thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company, the
Company will be entitled to satisfy its obligations to the Holder of this Note
by making such payment in United States dollars on the basis of the equivalent
of the composite currency in United States dollars. The component currencies
of the composite currency for this purpose (the "Component Currencies") will be
the currency amounts that were components of the composite currency as of the
last day on which the composite currency was used. The equivalent of the
composite currency in United States dollars shall be calculated by aggregating
the United States dollar equivalents of the Component Currencies. The United
States dollar equivalent of each of the Component Currencies will be determined
by the Exchange Rate Agent on the basis of the Market Exchange Rate on the
second Business Day prior to the required payment or, if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified on
the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency will be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies will be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
The "Market Exchange Rate" for a Specified Currency other than United
States dollars means the noon dollar buying rate in The City of New York for
cable transfers for such Specified Currency as certified for customs purposes
(or, if not so certified, as otherwise determined) by the Federal Reserve Bank
of New York. Any payment made in United States dollars under the circumstances
set forth above where the required payment is in a Specified Currency other
than United States dollars will not constitute an Event of Default under the
Subordinated Indenture with respect to this Note.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Except as provided below or as specified on the face hereof, interest
will be payable, if this Note resets: (i) daily, weekly or monthly, on the
third Wednesday of each month or on the third Wednesday of March, June,
September and December of each year, as specified on the face hereof; (ii)
quarterly, on the third Wednesday of March, June, September and December of
each year; (iii) semiannually, on the third Wednesday of the two months of each
year specified on the face hereof; and (iv) annually, on the third Wednesday of
the month of each year specified on the face hereof (each, an "Interest Payment
Date" with respect to this Note) and, in each case, on the Maturity Date. If
any Interest Payment Date other than the Maturity Date for this Note would
otherwise be a day that is not a Business Day, such Interest Payment Date will
be postponed to the next succeeding Business Day, except that if LIBOR is
specified on the face hereof as an applicable Interest Rate Basis and such
Business Day falls in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day. If the Maturity Date of
this Note falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and interest will be made on the next succeeding
Business Day as if made on the date such payment was due, and no interest will
accrue on such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with
five-one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all amounts used in
or resulting from such calculation on this Note will be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a foreign or
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
Accrued interest on this Note is calculated by multiplying its
principal amount by an accrued interest factor. Such accrued interest factor is
computed by adding the interest factor calculated for each day in the
applicable Interest Period. Unless otherwise specified on the face hereof, the
interest factor for each such day will be computed by dividing the interest
rate applicable to such day by 360, if the Interest Rate Basis specified on the
face hereof is CD Rate, Commercial Paper Rate, Eleventh District Cost of Funds
Rate, Federal Funds Rate, LIBOR or Prime Rate, or by the actual number of days
in the year if the Interest Rate Basis specified on the face hereof is CMT Rate
or Treasury Rate. Unless otherwise specified on the face hereof, the interest
factor for this Note if the interest rate is calculated with reference to two
or more Interest Rate Bases will be calculated in each period in the same
manner as if only the applicable Interest Rate Basis specified on the face
hereof applied.
Unless otherwise specified on the face hereof, the Subordinated
Trustee will be the "Calculation Agent" with respect to this Note. Upon
request of the Holder of this Note, the Calculation Agent will disclose the
interest rate then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the next succeeding
Interest Reset Date with respect to such Floating Rate Note. Unless otherwise
specified on the face hereof, the "Calculation Date," if applicable, pertaining
to any Interest Determination Date will be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
<PAGE> 6
Unless otherwise specified on the face hereof, the Calculation Agent
will determine each Interest Rate Basis in accordance with the following
provisions.
DETERMINATION OF CD RATE. Unless otherwise specified, if the Interest
Rate Basis specified on the face hereof is the CD Rate, with respect to any
Interest Determination Date (a "CD Rate Interest Determination Date"), such
rate will equal the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face hereof
as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication ("H.15(519)") under the heading "CDs (Secondary Market)," or, if
not published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such CD Rate Interest Determination Date for negotiable
United States dollar certificates of deposit of the Index Maturity specified on
the face hereof as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit." If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New
York City time, on such CD Rate Interest Determination Date, of three leading
nonbank dealers in negotiable United States dollar certificates of deposit in
The City of New York (which may include the Agents or their affiliates)
selected by the Calculation Agent for negotiable United States dollar
certificates of deposit of major United States money center banks for
negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is representative
for a single transaction in that market at that time; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the CD Rate determined as of such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
DETERMINATION OF CMT RATE. Unless otherwise specified, if the
Interest Rate Basis specified on the face hereof is the CMT Rate, with respect
to any Interest Determination Date (a "CMT Rate Interest Determination Date"),
such rate will equal the rate displayed on the Designated CMT Telerate Page
under the caption "...Treasury Constant Maturities...Federal Reserve Board
Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or the month, as applicable, ended
immediately preceding the week or the month, as applicable, in which the
related CMT Rate Interest Determination Date falls. If such rate is no longer
displayed on the relevant page or is not displayed by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index as published in H.15(519). If such rate is
no longer published or is not published by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in H.15(519). If such information is not provided by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate on the
CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers in The City of New York (which may include the Agents or their
affiliates) (each, a "Reference Dealer") selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offered rates as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offered
rates obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers so
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the Calculation Agent will obtain quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on such service) for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified on the face hereof, the Designated CMT Telerate
Page will be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated or, if no such maturity is specified on the face hereof, 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE. Unless otherwise specified,
if the Interest Rate Basis specified on the face hereof is Commercial Paper
Rate, with respect to any Interest Determination Date (a "Commercial Paper Rate
Interest Determination Date"), such rate will equal the Money Market Yield (as
hereinafter defined) on such date of the rate for commercial paper having the
Index Maturity specified on the face hereof as published in H.15(519) under the
heading "Commercial Paper-Nonfinancial". In the event that such rate is not
published by 3:00 P.M., New York City time, on the related Calculation Date,
then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be the Money Market Yield of the rate for commercial
paper having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on the related Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the Money Market Yield of the arithmetic mean
of the offered rates at approximately 11:00 A.M., New York City time, on such
Commercial Paper Rate Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity specified on the face hereof placed
for an industrial issuer whose bond rating is "Aa", or the equivalent, from a
nationally recognized statistical rating organization; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determination Date.
<PAGE> 7
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = --------------- X 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the applicable Interest Reset Period.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. Unless
otherwise specified, if the Interest Rate Basis specified on the face hereof is
Eleventh District Cost of Funds Rate, with respect to any Interest
Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), such rate will equal the rate equal to the monthly
weighted average cost of funds for the calendar month immediately preceding the
month in which such Eleventh District Cost of Funds Rate Interest Determination
Date falls, as set forth under the caption "11th District" on Telerate Page
7058 as of 11:00 A.M., San Francisco time, on such Eleventh District Cost of
Funds Rate Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate on such
Eleventh District Cost of Funds Rate Interest Determination Date will be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index
on or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
DETERMINATION OF FEDERAL FUNDS RATE. Unless otherwise specified, if
the Interest Rate Basis specified on the face hereof is Federal Funds Rate,
with respect to any Interest Determination Date (a "Federal Funds Rate Interest
Determination Date"), such rate will equal the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such Federal Funds Rate
Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds
Rate Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight United States dollar federal funds arranged by three leading brokers
of federal funds transactions in The City of New York (which may include the
Agents or their affiliates) selected by the Calculation Agent prior to 9:00
A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be
the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
DETERMINATION OF LIBOR. Unless otherwise specified, if the Interest
Rate Basis specified on the face hereof is LIBOR:
(i) With respect to any Interest Determination Date (a
"LIBOR Interest Determination Date"), LIBOR will be either: (a) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean
of the offered rates (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate will
be used) for deposits in the Designated LIBOR Currency having the
Index Maturity specified on the face hereof, commencing on the
applicable Interest Reset Date, that appear (or, if only a single rate
is required as aforesaid, appears) on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, or
(b) if "LIBOR Telerate" is specified on the face hereof or if neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof
as the method for calculating LIBOR, the rate for deposits in the
Designated LIBOR Currency having the Index Maturity on the face
hereof, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates so
appear, or if no such rate so appears, as applicable, LIBOR on such
LIBOR Interest Determination Date will be determined in accordance
with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear, or no rate appears, as
the case may be, on the Designated LIBOR Page as specified in clause
(i) above, the Calculation Agent will request the principal London
offices of each of four major reference banks (which may include
affiliates of the Agents) in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its
offered quotation for deposits in the Designated LIBOR Currency for
the period of the Index Maturity specified on the face hereof,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated
LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three
major banks (which may include affiliates of the Agents) in such
Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading European banks, having the
Index Maturity specified on the face hereof and in a principal amount
that is representative for a single transaction in the Designated
LIBOR Currency in such market at such time; provided, however, that if
the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR will be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on the Dow Jones Telerate Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency.
"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency (unless the Specified Currency is European
Currency Units ("ECU"), in which case it is also the display designated "ISDE"
on the Reuter Monitor Money Rate Service or the ECU Banking Association) or
(ii) the capital city of the country to which the Designated LIBOR Currency, if
applicable, relates (or, in the case of ECU, Luxembourg), except, in each case,
that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney, Toronto,
Frankfurt, Amsterdam, Milan (solely in the case of clause (i) above) and
Zurich, respectively.
<PAGE> 8
DETERMINATION OF PRIME RATE. Unless otherwise specified, if the
Interest Rate Basis specified on the face hereof is Prime Rate, with respect to
any Interest Determination Date (a "Prime Rate Interest Determination Date"),
such rate will equal the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate will be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
hereinafter defined) as such bank's prime rate or base lending rate as in
effect for such Prime Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Interest Determination Date, then the Prime Rate will be the arithmetic mean of
the prime rates or base lending rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of the close of business on
such Prime Rate Interest Determination Date by four major money center banks
(which may include affiliates of the Agents) in The City of New York selected
by the Calculation Agent. If fewer than four such quotations are so provided,
then the Prime Rate will be the arithmetic mean of four prime rates quoted on
the basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date as
furnished in The City of New York by the major money center banks, if any, that
have provided such quotations and by a reasonable number of substitute banks or
trust companies (which may include affiliates of the Agents) to obtain four
such prime rate quotations, provided such substitute banks or trust companies
are organized and doing business under the laws of the United States, or any
State thereof, each having total equity capital of at least $500 million and
being subject to supervision or examination by Federal or State authority,
selected by the Calculation Agent to provide such rate or rates; provided,
however, that if the banks or trust companies so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Prime Rate determined
as of such Prime Rate Interest Determination Date will be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "USPRIME1" page (or such
other page as may replace the USPRIME1 page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
DETERMINATION OF TREASURY RATE. Unless otherwise specified, if the
Interest Rate Basis specified on the face hereof is Treasury Rate, with respect
to any Interest Determination Date (a "Treasury Rate Interest Determination
Date"), such rate will equal the rate from the auction held on such Treasury
Rate Interest Determination Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as such rate is published in H.15(519) under the heading "Treasury
Bills-auction average (investment)" or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the auction average rate of such
Treasury Bills (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the results
of the Auction of Treasury Bills having the Index Maturity specified on the
face hereof are not reported as provided by 3:00 P.M., New York City time, on
the related Calculation Date, or if no such Auction is held, then the Treasury
Rate will be calculated by the Calculation Agent and will be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers (which may include the
Agents or their affiliates) selected by the Calculation Agent, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
SECTION 3. Redemption. This Note will be redeemable at the
option of the Company prior to the Stated Maturity Date only if an Initial
Redemption Date is specified on the face hereof. If so specified, this Note
will be subject to redemption at the option of the Company on any date on and
after the Initial Redemption Date in whole or from time to time in part in
increments of $1,000 or the minimum denomination, if any, specified on the face
hereof (provided that any remaining principal amount hereof will be at least
$1,000 or such minimum denomination), at the Redemption Price specified on the
face hereof, together with unpaid interest accrued hereon to the date of
redemption, on written notice given to the Holder hereof not more than 60 nor
less than 30 calendar days prior to the date of redemption and in accordance
with the provisions of the Subordinated Indenture. In the event of redemption
of this Note in part only, this Note will be cancelled and a new Note or Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof.
SECTION 4. Repayment. This Note will be repayable by the
Company at the option of the Holder hereof prior to the Stated Maturity Date
only if one or more Optional Repayment Dates are specified on the face hereof.
If so specified, this Note will be subject to repayment at the option of the
Holder hereof on any Optional Repayment Date in whole or from time to time in
part in increments of $1,000 or such other minimum denomination specified on
the face hereof (provided that any remaining principal amount hereof will be at
least $1,000 or such other minimum denomination), at a repayment price equal to
100% of the unpaid principal amount, or such other repayment price specified on
the face hereof, to be repaid, together with unpaid interest accrued heron to
but excluding the date of repayment. For this Note to be repaid, it must be
received, together with the form thereon entitled "Option to Elect Repayment"
duly completed, by the Subordinated Trustee at its office maintained for such
purpose in the Borough of Manhattan, The City of New York, not more than 60 nor
less than 30 calendar days prior to the date of repayment. Exercise of such
repayment option by the Holder will be irrevocable.
Only the Depositary may exercise the repayment option if this Note is
a Book-Entry Note as specified on the face hereof. Accordingly, if the
beneficial owner hereof, if this is a Book-Entry Note, desires to have all or
any portion of the Book-Entry Note repaid they must instruct the participant
through which they own their interest to direct the Depositary to exercise the
repayment option on their behalf by delivering this Note and duly completed
election form to the Subordinated Trustee as aforesaid. In order to ensure
that this Note and election form are received by such Subordinated Trustee on a
particular day, the beneficial owner hereof must so instruct the participant
through which they own their interest before such participant's deadline for
accepting instructions for that day. Different firms may have different
deadlines for accepting instructions from their customers. Accordingly, the
beneficial owner hereof should consult the participants through which they own
their interest for the respective deadlines for such participants. All
instructions given to participants from beneficial owners of Book-Entry Notes
relating to the option to elect repayment will be irrevocable. In addition, at
the time such instructions are given, the beneficial owner of this Note shall
cause the participant through which it owns its interest to transfer such
beneficial owner's interest in the Book-Entry Note, on the Depositary's
records, to the Subordinated Trustee.
SECTION 5. Sinking Fund. This Note is not subject to a
sinking fund unless otherwise specified on the face hereof.
SECTION 6. Discount Notes. If the Issue Price of this Note
(as specified on the face hereof) is less than 100% of the principal amount
hereof (i.e. par) by more than a percentage equal to the product of 0.25% and
the number of full years to the Stated Maturity Date (a "Discount Note"), the
difference between the Issue Price of this Note and par is referred to herein
as the "Discount." In the event of redemption, repayment or acceleration of
maturity of this Note, the amount payable to the Holder hereof will be equal to
the sum of (i) the Issue Price (increased by any accruals of Discount) and, in
the event of any redemption of this Note (if applicable), multiplied by the
Initial Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest accrued hereon to the
date of such redemption, repayment or acceleration of maturity, as the case may
be (the "Amortized Face Amount").
Unless otherwise specified on the face hereof, for purposes of
determining the amount of Discount that has accrued as of any date on which a
redemption, repayment or acceleration of maturity occurs for this Note, such
Discount will be accrued using a constant yield method. The constant yield
will
<PAGE> 9
be calculated using a 30-day month, 360-day year convention, a compounding
period that, except for the Initial Period (as hereinafter defined),
corresponds to the shortest period between Interest Payment Dates for this Note
(with ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the date of issue to
the initial Interest Payment Date for this Note (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period with the short period
being treated as provided in the preceding sentence.
SECTION 7. Indexed Notes. If this Note is an Indexed Note as
specified on the face hereof, the amount of principal, premium and/or interest
payable in respect hereof will be determined with reference to the price or
prices of specified commodities or stocks, to the exchange rate of one or more
designated currencies (including a composite currency such as the ECU) relative
to an indexed currency or to other items, in each case as specified on the face
hereof. Holders of Indexed Notes may receive a principal payment on the
Maturity Date that is greater than or less than the principal amount of such
Indexed Notes depending upon the relative value on the Maturity Date of the
specified indexed item. Information as to the method for determining the
amount of principal, premium, if any, and/or interest, if any, payable in
respect of Indexed Notes will be set forth on the Annex attached hereto, which
will for all purposes have the same effect as if set forth at this place.
SECTION 8. Amortizing Notes. If this Note is an Amortizing
Note as specified on the face hereof, unless otherwise specified on the face
hereof, interest on this Note will be computed on the basis of a 360-day year
of twelve 30-day months. Payments with respect to this Note if it is an
Amortizing Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. Further
information concerning additional terms and provisions of Amortizing Notes will
be set forth on the Annex attached hereto, which Annex will for all purposes
have the same effect as if set forth at this place.
SECTION 9. Events of Default. If any Event of Default with
respect to Notes of this series will occur and be continuing, the principal of
the Notes of this series may be declared due and payable in the manner and with
the effect provided in the Subordinated Indenture; provided, however, that
notwithstanding anything herein to the contrary, if this Note is a Discount
Note, the amount so declared to be due and payable will be the Amortized Face
Amount of this Note as of the date of such declaration as specified under
Section 6.
SECTION 10. Modification or Waiver; Obligation of the Company
Absolute. The Subordinated Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Subordinated Indenture at any time by the
Company and the Subordinated Trustee with the consent of the Holders of not
less than a majority in principal amount of the outstanding Securities of each
series to be affected. The Subordinated Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
outstanding Securities of each series, on behalf of the Holders of all
Securities of such series, to waive, with respect to the Securities of such
series, compliance by the Company with certain provisions of the Subordinated
Indenture and certain past defaults under the Subordinated Indenture and their
consequences. Any such consent or waiver by the Holder of this Note will be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Subordinated Indenture and no
provision of this Note or of the Subordinated Indenture will 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 times,
places and rates, herein prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant
Defeasance. The Subordinated Indenture contains provisions for defeasance at
any time of (a) the entire indebtedness of the Company on this Note and (b)
certain restrictive covenants and the related Events of Default upon compliance
by the Company with certain conditions specified therein, which provisions
apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise
specified on the face hereof, the Notes of this series are issuable only in
global or certificated registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. As provided in the Subordinated
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, Notes of this series are
exchangeable for Notes of this series of like aggregate principal amount and
like Stated Maturity and with like terms and conditions of a different
authorized denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the
Subordinated Indenture and subject to certain limitations therein specified and
to the limitations described below, if applicable, the transfer of this Note is
registerable in the Security Register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
that purpose duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar (which
will initially be the Subordinated Trustee at its principal corporate trust
office located in the Borough of Manhattan, The City of New York) duly executed
by the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes of this series with like terms and conditions, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face
hereof, this Note is exchangeable for certificated Notes only upon the terms
and conditions provided in the Subordinated Indenture. Except as provided in
the Subordinated Indenture, owners of beneficial interests in this Book-Entry
Note will not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Subordinated Indenture.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Subordinated Trustee and any
agent of the Company or the Subordinated Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note be overdue and notwithstanding any notation of ownership or other
writing hereon, and none of the Company, the Subordinated Trustee or any such
agent will be affected by notice to the contrary.
SECTION 15. Governing Law. The Subordinated Indenture and
the Notes will be governed by and construed in accordance with the laws of the
State of New York.
<PAGE> 10
SECTION 16. Defined Terms. All terms used in this Note which
are defined in the Subordinated Indenture will have the meanings assigned to
them in the Subordinated Indenture unless otherwise defined herein; and all
references in the Subordinated Indenture to "Security" or "Securities" will be
deemed to include the Notes.
<PAGE> 11
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or portion hereof
below designated at the applicable Optional Repayment Price indicated on the
face hereof, plus accrued and unpaid interest to but excluding the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note. If
a portion of this Note is not being repaid, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
<TABLE>
<S> <C>
Dated:____________________________________________ _______________________________________________
Signature
Sign exactly as name appears on the front of this Note.
Indicate address where check is to be sent, if repaid:
Principal amount to be repaid if amount to be repaid
is less than the entire principal amount of this Note _______________________________________________
(principal amount remaining must be an authorized
denomination) _______________________________________________
$________________________________________________
(which will be an integral multiple of $1,000)
Denomination or denominations of the Note or Notes to SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
be issued for the portion of this Note not being
repaid _______________________________________________
_________________________________________________
_________________________________________________
</TABLE>
<PAGE> 12
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, will be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
<TABLE>
<S> <C>
UNIF GIFT MIN ACT Custodian
----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------
/ /
- - ---------------------------------
- - -------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________ _______________________________________
Signature
Sign exactly as name appears on the
front of this Note [SIGNATURE MUST BE
GUARANTEED by a member of a recognized
Medallion Guarantee Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, will be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
<TABLE>
<S> <C>
UNIF GIFT MIN ACT Custodian
----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
/ /
- - ------------------------------
- - -------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________ _______________________________________
Signature
Sign exactly as name appears on the
front of this Note [SIGNATURE MUST BE
GUARANTEED by a member of a recognized
Medallion Guarantee Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Post-Effective
Amendment No. 1 to the Registration Statement of Conseco, Inc. on Form S-3
(File No. 333-27803), of our reports dated March 14, 1997 on our audits of
the consolidated financial statements and financial statement schedules of
Conseco, Inc. and subsidiaries as of December 31, 1996 and 1995, and for the
years ended December 31, 1996, 1995 and 1994, included in the Annual Report
on Form 10-K. We also consent to the reference to our firm under the caption
"Experts."
/s/ COOPERS & LYBRAND L.L.P.
----------------------------
COOPERS & LYBRAND L.L.P.
Indianapolis, Indiana
November 17, 1997
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
- - --------------------------------------------------------------------------------
LTCB TRUST COMPANY
- - --------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
New York State 13-3191890
- - --------------------------------------------------------------------------------
(Jurisdiction of incorporation or (I.R.S. Employer Identification
organization if not a U.S. national bank Number)
165 Broadway New York, N.Y. 10006
- - --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
LTCB Trust Company 165 Broadway New York, N.Y. 10006
Corporate Trust Administration 47th Floor
Attn: Barbara Bevelaqua, Vice President (212) 335-4901
Lisa Karisen, Assistant Vice President (212) 335-4899
- - --------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
- - --------------------------------------------------------------------------------
CONSECO, INC.
- - --------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
INDIANA 35-146632
- - --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
11825 N. Pennsylvania Street
Carmel, Indiana 46032
- - --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
Senior Medium-Term Notes, Series A
- - --------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION
Furnish the following information as to the trustee:
a) Name and address of each examining or supervising authority to which it is
subject:
Superintendent of Banks Federal Reserve Bank of New York (District 2)
State of New York 33 Liberty Street
Albany, New York New York, N.Y. 10045
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers:
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each affiliation:
The obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS
Exhibit I
A copy of the authorization certificate of LTCB Trust Company as well
as supplemental and related documents now in effect, which contain the
authority to commence business and a grant of powers to said LTCB
Trust Company to exercise corporate trust powers.**
Exhibit II
A copy of the existing By-Laws of LTCB Trust Company.
Exhibit III
The consent of the trustee as required by Section 321(b) of the Act.
Exhibit IV
A copy of the latest published report of condition of the trust issued
as at September 30, 1997
** Exhibit I is herein incorporated by reference to the Exhibit bearing the
identical number in Item 16 of the Form T-1 of LTCB Trust Company, filed as
Exhibit 21.5 to the Registration Statement on Form S-1 of ALHC Merger
Corporation, filed with the Securities and Exchange Commission on September 12,
1994 (Registration No. 33-81858).
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, LTCB Trust Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York, and State of New York, on the 12th day of November, 1997.
LTCB Trust Company
By: Barbara Bevelaqua
-------------------------
Barbara Bevelaqua
Vice President
<PAGE> 4
EXHIBIT II
BY-LAWS
OF
LTCB TRUST COMPANY
AS ADOPTED BY INCORPORATORS
ON OCTOBER 7, 1983,
AND SINCE AMENDED THROUGH AND
INCLUDING APRIL 25, 1997
ARTICLE 1.
Stockholders
Section 1. Place of Meetings of Stockholders. Meetings of stockholders shall be
held at the office of The Long-Term Credit Bank of Japan, Limited in the City of
New York, State of New York, provided, however, that the Board of Directors in
its discretion may fix any other location in the City of New York.
Section 2. Annual Meetings of Stockholders. A meeting of stockholders shall be
held annually for the election of Directors and the transaction of other
business at such time within the first three calendar months of each year as may
from time to time be designated by the Board of Directors.
Section 3. Special Meetings of Stockholders. Special meetings of the
stockholders may be called by the Board of Directors, the President, an
Executive Vice President or the Secretary upon the written request of a majority
of the Board of Directors or upon the written request of the holders of not less
than 50 per cent of all outstanding shares entitled to vote on the action
proposed to be taken. Such call and written request shall state the purpose or
purposes of the proposed meeting.
Section 4. Notice of Meetings of Stockholders. Written notice of every meeting
of stockholders shall be signed by the President, an Executive Vice President or
the Secretary and state the place, date and hour of the meeting and unless it is
the annual meeting indicate that it is being issued by or at the direction of
the person or persons calling the meeting and state the purpose or purposes for
which the meeting is called.
A copy of the notice of any meeting shall be given, personally or
by mail at least 15 business days before the date of the meeting, to each
stockholder entitled to vote at such meeting. If mailed, such notice shall be
deemed given when deposited in the United States mail, with postage thereon
prepaid, directed to the stockholder at his address as it appears on the record
of stockholders, or at any other address upon his written request for mailing
filed with the Secretary.
Section 5. Quorum of Stockholders. The holders of a majority of the shares
entitled to vote thereat shall constitute a quorum at a meeting of stockholders
for the transaction of any business. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any stockholders.
Section 6. Adjourned Meeting. The stockholders present at a meeting of
stockholders may adjourn the meeting despite the absence of a quorum. When a
meeting is adjourned to another time or place, it shall not be necessary to give
any notice of the adjourned meeting if the time and place to which the meeting
is adjourned are announced at the meeting at which the adjournment is taken, and
at the adjourned meeting any business may be transacted that might have been
transacted on the original date of the meeting.
Section 7. Presiding Officer. The Chairman shall preside at all meetings of
stockholders, except that in his absence or disability, the President or an
Executive Vice President shall preside in his place.
Section 8. Proxies. Every stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent without a meeting may authorize
another person or persons to act for him by proxy. Every proxy must be signed by
the stockholder or his attorney-in-fact. No proxy shall be valid after the
expiration of eleven months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the stockholder
executing it, except in those cases where an irrevocable proxy is provided by
law. No Director, officer, or employee of the Trust Company shall act as proxy.
Section 9. Inspectors at Stockholders' Meetings. The Board of Directors, in
advance of any stockholders' meeting, may appoint one or more inspectors to act
at the meeting or any adjournment thereof. If inspectors are not so appointed,
the person presiding at a stockholders' meeting, may, and on the request of any
stockholder entitled to vote thereat shall, appoint inspectors. In case any
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board of Directors in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors shall determine the number of shares
<PAGE> 5
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the person presiding at the meeting or any stockholder entitled to
vote thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated and of the vote as certified by them. No Director,
officer or employee of the Trust Company shall act as inspector.
Section 10. Qualification of Voters. Every stockholder of record shall be
entitled at every meeting of stockholders to one vote for every share standing
in his name on the record of stockholders.
Section 11. Vote of Stockholders. Directors shall, except as otherwise required
by law, be elected by a plurality of the votes cast at a meeting of stockholders
by the holders of shares entitled to vote in the election. Any other corporate
action by vote of the stockholders shall, except as otherwise required by law,
be authorized by a majority of the votes cast at a meeting of stockholders by
the holders of shares entitled to vote thereon.
Section 12. Written Consent of Stockholders Without a Meeting. Any stockholder
action required or permitted to be taken by vote may be taken on written consent
in substitution for and as the equivalent of any meeting of stockholders herein
provided for. Any such consent shall set forth the action so taken, and be
signed by the holders of all outstanding shares entitled to vote thereon.
ARTICLE 2.
Directors
Section 1. Board of Directors. The affairs of the Trust Company shall be
managed by its Board of Directors.
Section 2. Qualifications of Directors. Each Director shall be at least 18 years
of age, and shall fulfill the other statutory requirements for serving as such
Director. Subject to applicable law, at least one-half of the Directors shall be
officers of the majority stockholder (if any) of the Trust Company; and, if
necessary to enable such officers to serve as Directors, application shall be
made to the New York Superintendent of Banks to exercise his discretion to
permit as Directors of the Trust Company not more than one-half of the total
number thereof to serve as such, although such Directors are not citizens of the
United States or citizens or residents of this state or a contiguous state.
Section 3. Number of Directors. The Board of Directors shall be composed of not
less than seven nor more than thirty members. The number of the Directors shall
be fixed at any time within the maximum and minimum limits by the Board of
Directors.
Section 4. Election and Term of Directors. At each annual meeting of
stockholders, the stockholders shall elect Directors to hold office until the
next annual meeting. Each Director shall hold office until the expiration of the
term for which he is elected, and until his successor has been elected and
qualified.
Section 5. Vacancies and Newly Created Directorships. All vacancies in the
office of Director, including newly created directorships resulting from an
increase in the number of Directors, shall be filled by election by the
stockholders except as hereinafter provided. Vacancies not exceeding one-third
of the entire Board may be filled by affirmative vote of the majority of the
Directors then in office, and the Directors so elected shall hold office for the
balance of the unexpired term; or when the number of Directors required is nine
or more, two vacancies may, with the consent of the New York Superintendent of
Banks, be left unfilled until the next annual election, and when the number of
Directors required is more than five and less than nine, one vacancy may, with
the Superintendent's consent, be left unfilled until the next annual election.
Every vacancy, including newly created but unfilled directorships resulting from
an increase in the number of Directors, in the office of Director and each
reduction in the number of Directors shall be reported to the Superintendent
within ten days after such vacancy occurs or such reduction is effected. Each
election by the Board to fill any such vacancy shall be likewise reported
together with the name, address and occupation of the person so elected.
Section 6. Removal of Directors. Any or all of the Directors may be removed
for cause by vote of the stockholders or Directors, or with or without cause by
a vote of the stockholders.
Section 7. Quorum of Directors. A majority of the entire Board of Directors
shall constitute a quorum for the transaction of business or of any specified
item of business.
Section 8. Action by the Board. The vote of the majority of the Directors
present at a meeting of the Board of Directors at the time of the vote, if a
quorum is present at such time, shall, except as otherwise provided by law, be
the act of the Board of Directors.
<PAGE> 6
Section 9. Place and Time of Meetings of the Board; Notice; Adjournment. The
first meeting of each newly elected Board of Directors shall be held immediately
following the annual meeting of stockholders and at the place thereof. The Board
of Directors shall hold a regular meeting at the office of The Long-Term Credit
Bank of Japan, Limited in the City of New York, State of New York without notice
on the third Friday of each month at 2:00 p.m. Should the day appointed for a
regular meeting not be a business day, the meeting shall be held at the same
time on the next business day.
The Board of Directors in its discretion may fix any other location
or any other time for the holding of regular meetings upon notice to the
Directors. Special meetings of the Board may be called by the President, an
Executive Vice President or the Secretary upon the request of at least two
Directors. Notice of a special meeting shall be given to each Director. The
notice shall state the place, date and hour of the meeting and indicate that it
is being issued by or at the direction of the person or persons calling the
meeting. The notice shall be given personally (including by telephone) or by
mail not less than 3 business days before the date of meeting, to each Director.
If mailed, such notice shall be deemed given when deposited in the United States
mail, with postage thereon prepaid, directed to the Director at his address, or
at any other address upon his written request for mailing filed with the
Secretary. The notice need not specify the purpose of any special meeting of the
Board.
A majority of the Directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. Notice of any
adjournment of a meeting of the Board to another time and place shall be given
to the Directors who were not present at the time of the adjournment and, unless
such time and place are announced at the meeting, to the other Directors.
Section 10. Presiding Officer. The Chairman shall preside at all meetings of the
Board of Directors, except that in his absence or disability, the President or
an Executive Vice President shall preside in his place. The Chairman shall be
elected as such by said Board at its Annual Meeting. He shall serve as Chairman
until the next Annual Meeting of said Board and until his successor is elected
and qualified, but he shall not be an officer of the Trust Company and shall
have only such powers and duties, in addition to those of a Director, as are
specifically set forth in these By-Laws. He shall be an ex officio member of all
Committees of the Board, except the Examining and Audit Committee.
Section 11. Compensation of Directors. Such compensation shall be paid to
Directors for attendance at meetings of the Board of Directors and of any
Committee of said Board, and such additional annual compensation shall be paid
to Directors regardless of attendance, as shall be determined by the Board of
Directors by resolution from time to time.
Section 12. Attendance at Meetings. Any one or more Directors may participate in
a meeting of the Board of Directors or any Committee of said Board by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
Section 13. Committees of the Board. The Board of Directors shall appoint a
Committee of at least three of its members to examine fully once in each
calendar year the books, papers and affairs of the Trust Company and such other
matters as may be required byss.122 of the Banking Law of the State of New York.
The Committee may employ such assistance in making such examinations as the
Committee may deem necessary.
A report in writing of any examination so made, sworn to by the
Directors making the same, shall be presented to the Board of Directors at their
next regular meeting after the completion of such examination and placed on file
in the Trust Company and a duplicate thereof filed in the Office of the New York
Superintendent of Banks. Such report shall contain the matters required
underss.123 of the Banking Law of the State of New York.
The Board of Directors may appoint from time to time other
Committees of one or more Directors for such purposes and with such powers as
the Board may determine.
The President shall have the power to designate another Director to
serve on any standing Committee during the absence or inability to serve of any
member thereof.
ARTICLE 3.
Officers
Section 1. Number. The officers of the Trust Company, each of whom shall be
elected or appointed by the Board of Directors, shall be a President, one or
more Vice Presidents, one or more Assistant Vice Presidents, a Secretary, a
Treasurer, and such other officer or officers, if any, as the Board of Directors
may deem appropriate or desirable, including, at the option of the Board of
Directors, one or more Executive Vice Presidents and/or one or more Senior Vice
Presidents. Each reference to Vice Presidents elsewhere in these By-Laws,
including without limitation the extent of and limitations on the powers and
duties of Vice Presidents, shall also pertain and be fully applicable to any
<PAGE> 7
person holding the office of Senior Vice President. Any two or more offices may
be held by the same person, except the offices of President and Secretary.
Section 2. Election, Term of Office and General Duties. The officers to be
elected or appointed by the Board of Directors shall be elected or appointed
annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the stockholders.
Each officer shall hold office until the first meeting of the Board
of Directors following the next annual meeting of stockholders, and until his
successor has been elected or appointed and qualified.
Participation in major policymaking functions of the Trust Company
by officers, when acting in their capacity as such, shall be limited to the
President and the Executive Vice Presidents.
Section 3. Removal. Any officers elected or appointed by the Board of Directors
may be removed by the Board of Directors with or without cause, but such removal
without cause shall be without prejudice to the contract rights, if any, of the
person so removed.
Section 4. Vacancies. A vacancy in any office because of resignation, removal or
otherwise, may be filled by the Board of Directors, or, under its authority, by
the President or an Executive Vice President, for the unexpired portion of the
term.
Section 5. President. The President shall have general supervision of the
policies and operations of the Trust Company and shall also be the chief
executive officer of the Trust Company. He shall be an ex officio member of all
Committees of the Board, except the Examining and Audit Committee. He shall have
the powers and shall perform the duties pertaining generally to the office of
the President, and shall have the powers and duties conferred or imposed upon
the President by law, by these By-Laws, or by the Board of Directors.
Section 6. Absence or Disability. In the absence or disability of the President,
the Executive Vice Presidents, in the order of seniority of their elections as
such, shall act in his place and assume his duties.
Section 7. Executive Vice Presidents, Vice Presidents and Other Officers. Each
Executive Vice President, each Vice President, each Assistant Vice President,
and each other officer deemed appropriate or desirable by the Board of
Directors, shall have such powers and duties as may be assigned by the Board of
Directors from time to time; and, under authority of the Board of Directors, the
President or an Executive Vice President shall have authority to appoint and
dismiss employees and to prescribe their duties and, to the extent not
inconsistent with these By-Laws, the duties of officers.
Section 8. Secretary. The Secretary shall: (1) keep the minutes of the
proceedings of the stockholders, Board of Directors, and Examining and Audit
Committee and other committees, if any, in one or more books provided for that
purpose; (2) see that all notices are duly given in accordance with the
provisions of these By-Laws; (3) be custodian of the corporate records and of
the seal of the Trust Company; (4) file each written request by a stockholder or
Director that notices to him be mailed to some address other than his address as
it appears on the records of the Trust Company; (5) sign with the President or
an Executive Vice President, certificates representing shares of the Trust
Company; (6) have general charge of the record of stockholders of the Trust
Company; and (7) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the President or the Board of Directors.
Section 9. Treasurer. The Treasurer shall: (1) have charge and custody of and be
responsible for all funds and securities of the Trust Company, receive and give
receipts for moneys due and payable to the Trust Company from any source
whatsoever, and deposit all such moneys in the name of the Trust Company in
banks, trust companies, or other depositaries; (2) have charge and custody of
and be responsible for the keeping of correct and complete books and records of
account of the Trust Company; (3) have the duty, unless specifically assigned to
another officer by the Board of Directors, to prepare and submit to the Board of
Directors the monthly report required by ss.121 of the Banking Law of the State
of New York; and (4) in general perform all of the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned to him
by the President or the Board of Directors.
Section 10. Fiduciary Instruments and Documents. All instruments in behalf of
the Trust Company as trustee, depositary, agent or in any other fiduciary
capacity, including agreements, indentures, mortgages, deeds, conveyances,
satisfactions, discharges, releases, contracts, assignments, participation
certificates of interest in mortgages, transfers, powers of attorney, proxies,
petitions, proofs of claim, assignments and transfers of any shares of stock,
bonds or other securities, and all other documents and writings in connection
with any fiduciary capacity, may be executed by the President, an Executive Vice
President, any Vice President or any Assistant Vice President; or any other
officer, if thereunto authorized by the President or an Executive Vice
President; or any other person thereunto authorized by the Board of Directors,
the President or an Executive Vice President. Any officer or person authorized
to execute any such instrument, document or writing is also authorized to affix
the seal of the Trust Company thereto and to cause the same to be attested by
the Secretary or the Treasurer. This is in addition to and not in substitution
<PAGE> 8
for the manner of execution of any instruments elsewhere provided for in these
By-Laws.
Section 11. Contracts and Instruments. All contracts, checks, drafts, and other
commitments and instruments of the Trust Company, all guaranties of signatures
on assignments of stocks and other documents and all assignments or other papers
necessary or proper for the sale, assignment or transfer of stocks, registered
bonds or other securities or any other personal property or rights therein
standing in the name of and owned by the Trust Company in its own right, or held
by it as security, shall be executed by one of the following officers: the
President, an Executive Vice President, any Vice President, any Assistant Vice
President, or another officer or person authorized by the Board of Directors,
the President or an Executive Vice President to sign on behalf of the Trust
Company.
Section 12. Powers of Attorney. All powers of attorney and all authorizations to
representatives or agents of the Trust Company shall be executed by the
President, an Executive Vice President, or a Vice President who is thereunto
designated by the President or an Executive Vice President. Any such power of
attorney or authorization may, however, be executed by another officer or
officers, or person or persons, who may be specifically authorized to execute
the same by the Board of Directors, the President or an Executive Vice
President.
Section 13. Bonding of Officers and Employees; Other Insurance. Each officer and
employee handling moneys, funds, property or valuables, if so required by the
Board of Directors, shall give a bond with security to be approved by the Board,
conditioned for the honest discharge of his duties as such officer or employee.
Such bonds may be in individual, schedule or blanket form and the premiums
therefor shall be paid by the Trust Company. The purchase of and payment for
such bonds shall be in addition to, and not exclusive of, such other insurance
coverage of whatever nature as the Trust Company shall or may obtain for the
proper conduct and protection of its business, property, operations and
personnel.
Section 14. Compensation of Officers. The Board of Directors shall from time to
time fix the compensation, if any, of the President and Executive Vice
Presidents; and those officers shall fix the compensation of the other officers
and the employees of the Trust Company.
ARTICLE 4.
Certificates Representing Shares; Record of Stockholders;
Transfer of Shares
Section 1. Certificates Representing Shares. The shares of the Trust Company
shall be represented by certificates which shall be in such form as shall be
determined by the Board of Directors, subject to applicable law. All such
certificates shall be consecutively numbered. Such certificates shall be signed
by the President or an Executive Vice President and by the Secretary, and may be
sealed with the seal of the Trust Company or a facsimile thereof. In case any
officer who has signed shall have ceased to be such officer before such
certificate is issued, it may be issued by the Trust Company with the same
effect as if he were such officer at the date of issue. Each certificate shall
state upon the face thereof: (1) that the Trust Company is formed under the laws
of New York; (2) the name of the person or persons to whom issued; (3) the
number and class of shares; and (4) the par value of each share represented by
such certificate.
Section 2. Record of Stockholders. The Trust Company shall keep at its office a
record containing the names and addresses of all stockholders, the number and
class of shares held by each, and the dates when they respectively became the
owners of record thereof. The Trust Company shall be protected in treating the
persons in whose names shares stand on the record of stockholders as the owners
thereof for all purposes.
Section 3. Transfer of Shares. Upon surrender to the Trust Company of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, such shares shall be
transferred on the record of the stockholders of the Trust Company, but only by
action of the President or an Executive Vice President.
ARTICLE 5.
Fiscal Year
The fiscal year of the Trust Company shall be determined by resolution of the
Board of Directors.
ARTICLE 6.
Dividends
The Board of Directors may from time to time declare, and the Trust Company may
pay, dividends on its outstanding shares in the manner and upon the terms and
conditions provided by applicable law, including without limitation ss.ss.110
and 112 of the Banking Law of the State of New York, or comparable provisions of
law hereafter in effect.
<PAGE> 9
ARTICLE 7.
Corporate Seal
Section 1. Impression. The following is an impression of the seal adopted by
the Board of Directors of the Trust Company:
<PAGE> 10
Section 2. Officers' Authority. All of the officers of the Trust Company shall
have authority to affix the corporate seal to documents.
ARTICLE 8.
Miscellaneous Provisions
Section 1. Records. The Organization Certificate, the By-Laws and the
proceedings of all meetings of the stockholders, the Board of Directors, and any
Committee of the Board, shall be recorded in appropriate minute books. The
minutes of each such meeting shall be signed by the Secretary or other officer
appointed to act as Secretary of the meeting.
Section 2. Business Hours. The business hours of the Trust Company's office
shall be from 9 a.m. to 3 p.m. daily except Saturdays, Sundays, and days or
parts of days recognized as legal holidays by the laws of this State on which
the Federal Reserve Bank of New York is not open for the conduct of its normal
business.
Section 3. Indemnification. Directors, officers and agents of the Trust Company
shall be entitled to indemnification from the Trust Company, for the defense of
any civil or criminal action or proceeding, or appeal therein, brought against
them by reason of their being, or having been, such Directors, officers or
agents, to the fullest extent consistent with applicable law, including without
limitation Title 7 of Article 15 of the Banking Law of the State of New York, or
comparable provisions of law hereafter in effect.
The Trust Company shall not be required to provide any such
indemnification to any Director, officer or agent in any such action or
proceeding, or appeal therein, arising out of services rendered by any such
person to any person, firm or association, or any corporation other than the
Trust Company, unless such services were rendered by such Director, officer or
agent at the specific written request of the Trust Company made by the Trust
Company in the manner provided by the Board of Directors.
Expenses incurred in defending a civil or criminal action or
proceeding may be paid by the Trust Company in advance of the final disposition
of such action or proceeding if authorized as provided by applicable law or
allowed by order of a court of competent jurisdiction. All such expenses so
advanced by the Trust Company shall be repaid in case the person receiving such
advancement or allowance is ultimately found not to be entitled to
indemnification or, where indemnification is granted, to the extent the expenses
so advanced by the Trust Company or allowed by the court exceed the
indemnification to which he is entitled.
The rights of indemnification provided for in this Section 3 shall
inure to the benefit of the heirs, executors, administrators and assigns of each
person indemnified and shall not, except as required by applicable law, be
deemed exclusive of any contractual or other legal rights to which he or they
may be entitled.
The Trust Company may, but need not, purchase insurance for the
purpose of indemnifying its Directors, officers or agents, for the purpose of
indemnifying itself for any obligation which it incurs as a result of its
indemnification of Directors, officers or agents, or for both purposes. Such
insurance may, but need not, be for the benefit of all Directors, officers or
agents.
A person is an "agent" under, and any action taken by him is
subject to the provisions of, this Section 3, only when the person is neither a
Director, officer nor employee of the Trust Company but his action has been
taken in good faith on behalf of the Trust Company pursuant to, and within the
scope of, actual authority duly conferred on him by the Trust Company.
ARTICLE 9.
Emergencies
Section 1. Emergencies. In the event of an emergency declared by the President
of the United States or the person performing his functions, the officers and
employees of the Trust Company will continue to conduct the affairs of the Trust
Company under such guidance from the Directors as may be available, except as to
matters which by statute require specific approval of the Board of Directors and
subject to conformance with any governmental directives during the emergency.
Section 2. Offices. The business of the Trust Company shall be conducted at its
office located at 165 Broadway, New York, New York, 10006 and any other legally
authorized location which may be leased or acquired by the Trust Company to
carry on its business. During an emergency resulting in any authorized place of
business of the Trust Company being unable to function, the business ordinarily
conducted at such location shall be relocated elsewhere in such suitable
<PAGE> 11
quarters, in addition to or in lieu of the locations heretofore mentioned, as
may be designated by the Board of Directors or by such persons as are then, in
accordance with resolutions adopted from time to time by the Board of Directors
dealing with the exercise of authority in the time of such emergency, conducting
the affairs of the Trust Company. Any temporarily relocated place of business of
the Trust Company shall be returned to its legally authorized location as soon
as practicable and such temporary place of business shall then be discontinued.
ARTICLE 10.
Inspection and Amendments
Section 1. Inspection. A copy of the By-Laws, with all amendments to date shall,
at all times, be kept at the principal office of the Trust Company and shall be
open for inspection by all stockholders during business hours.
Section 2. Amendments. Except as may otherwise be required by law, these By-Laws
may be changed or amended (1) by a vote of a majority of the Directors for the
time being, at any regular or special meeting of the Board, or (2) by vote of
the stockholders at any meeting of the stockholders.
* * *
Certified a true copy
this 1st day of May, 1997.
/s/ Sam Angione
-------------------------
Sam Angione
Executive Vice President and
Secretary
<PAGE> 12
EXHIBIT III
AUTHORIZATION AND CONSENT OF LTCB TRUST COMPANY
REQUIRED BY SECTION 321(b) OF THE ACT
LTCB Trust Company hereby authorizes and consents that any reports,
records, or other available information in the possession of the Board
of Governors of the Federal Reserve System, the New York Federal
Reserve Board, the New York State Banking Department and the Federal
Deposit Insurance Corporation be furnished by such authorities to the
Securities and Exchange Commission (SEC) upon request therefore,
in connection with the SEC's acting upon form T-1 and Exhibits filed
with it by LTCB Trust Company to establish its eligibility and
qualification under the Trust Indenture Act of 1939 (as amended by the
Trust Indenture Reform Act of 1990) to be designated as trustee under
the indenture to be executed in connection with the issuance by
Conseco, Inc. of it's Senior Medium Term Notes, Series A
11/12/97 /s/ Barbara Bevelaqua
----------------- ---------------------
Dated Barbara Bevelaqua
Vice President
<PAGE> 13
EXHIBIT IV
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1997 - SEPTEMBER 30, 1997
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE
BASIS IN THOUSANDS OF DOLLARS.
SCHEDULE RI-INCOME STATEMENT
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- - ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest Income:
a. Interest and fee income on loans:
(1) In domestic offices: RIAD
----
(a) Loans secured by real estate 4011 6.858 1.a.1.a
(b) Loans to depository institutions 4019 0 1.a.1.b
(c) Loans to finance agricultural production and other loans to farmers 4024 0 1.a.1.c
(d) Commercial and industrial loans 4012 49,237 1.a.1.d
(e) Acceptances of other banks 4028 0 1.a.1.e
(f) Loans to individuals for household, family, and other personal expenditures:
(1) Credit cards and related plans 4054 0 1.a.1.f.1
(2) Other 4055 0 1.a.1.f.2
(g) Loans to foreign governments and official institutions 4056 0 1.a.1.g
(h) Obligations (other than securities and leases) of states and political subdivisions
in the U.S.:
(1) Taxable obligations 4503 0 1.a.1.h.1
(2) Tax-exempt obligations 4504 0 1.a.1.h.2
(i) All other loans in domestic offices 4058 649 1.a.1.1
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs 4059 61 1.a.2
b. Income from lease financing receivables:
(1) Taxable leases 4505 1,029 1.b.1
(2) Tax-exempt leases 4307 0 1.b.2
Interest income on balances due from depository Institutions: (1)
(1) In domestic offices 4105 3 1.c.1
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs 4106 0 1.c.2
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency obligations 4027 5,183 1.d.1
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities 4506 0 1.d.2.a
(b) Tax-exempt securities 4507 58 1.d.2.b
(3) Other domestic debt securities 3657 448 1.d.3
(4) Foreign debt securities 3858 0 1.d.4
(5) Equity securities (including investments in mutual funds) 3859 451 1.d.5
e. Interest income from trading assets 4069 0 1.e
</TABLE>
- - --------------
(1) Includes interest income on time certificates of deposits not held for
trading.
<PAGE> 14
SCHEDULE RI - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- - ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Interest Income (continued)
f. Interest income on federal funds sold and securities purchased under RIAD Year-to-Date
agreements to resell 4020 756 1.f
g. Total interest income (sum of items 1.a through 1.f) 4107 64,731 1.g
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts) 4508 0 2.a.1.a
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) 4509 0 2.a.1.b.1
(2) Other savings deposits 4511 0 2.a.1.b.2
(3) Time deposits of $100,000 or more A517 13,688 2.a.1.b.3
(4) Time deposits of less than $100,000 A518 3 2.a.1.b.4
(2) Interest on deposits in foreign offices, Edge and agreement
subsidiaries, and IBFs 4172 19,567 2.a.2
b. Expenses of federal funds purchased
and securities sold under
agreements to repurchase 4180 236 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money 4185 9,710 2.c
d. Not applicable
e. Interest on subordinated notes and debentures 4200 2,273 2.e
f. Total interest expense (sum of items 2.a through 2.e) 4073 45,477 RIAD 2.f
3. Net interest income (item 1.g minus 2.f) 4074 19,254 3.
4. Provisions:
a. Provision for loan and lease losses 4230 1,500 4.a
b. Provision for allocated transfer risk 4243 0 4.b
Noninterest income: RIAD
a. Income from fiduciary activities 4070 4,249 5.a
b. Service charges on deposit accounts in domestic offices 4080 0 5.b
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d) A220 0 5.c
d. - e. Not applicable
f. Other noninterest income:
(1) Other fee income 5407 2,508 5.f.1
(2) All other noninterest income* 5408 75 RIAD 5.f.2
g. Total noninterest income (sum of items 5.a through 5.f) 4079 6,832 5.g
6. a. Realized gains (losses) on held-to-maturity securities 3521 0 6.a
b. Realized gains (losses) on available-for-sale securities 3196 178 6.b
7. Noninterest expense: RIAD
a. Salaries and employee benefits 4135 3,323 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage interest) 4217 2,902 7.b
c. Other noninterest expense* 4092 5,248 RIAD 7.c
d. Total noninterest expense (sum of items 7.a through 7.c) 4093 11,473 7.d
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d) 4301 13,291 8.
9. Applicable income taxes (on item 8) 4302 6,352 9.
10. Income (loss) before extraordinary items and other adjustments (item 8 minus 9) 4300 6,939 10.
11. Extraordinary items and other adjustments, net of income taxes* 4320 0 11
12. Net income (loss) (sum of items 10 and 11) 4340 6,939 12.
</TABLE>
- - ------------------------
* Describe on Schedule RI-E - Explanations.
<PAGE> 15
SCHEDULE RI - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- - -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
MEMORANDA
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after RIAD Year-to Date
August 7, 1986, that is not deductible for federal income tax purposes 4513 0 M.1
2. Income from the sale and servicing of mutual funds and annuities in domestic offices
(included in Schedule RI, item 8) 8431 0 M.2
3. - 4. Not applicable
5. Number of full-time equivalent employees on payroll at end of current period (round to Number
nearest whole number) 4150 49 M.5
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying push CCYY/MM/DD
accounting this calendar year, report the date of the bank's acquisition 9106 M.7
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments)
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c):
a. Interest rate exposures 8757 0 M.8.a
b. Foreign exchange exposures 8758 0 M.8.b
c. Equity security and index exposures 8759 0 M.8.c
d. Commodity and other exposures 8760 0 M.8.d
9. Impact on income of off-balance sheet derivatives held for purposes other than trading:
a. Net increase (decrease) to interest income 8761 0 M.9.a
b. Net (increase) decrease to interest expense 8762 (4,019) M.9.b
c. Other (noninterest) allocations 8763 0 M.9.c
10. Credit losses on off-balance sheet derivatives (see instructions) A251 0 M.10
11. Does the reporting bank have a Subchapter S election in effect for Yes/No
federal income tax purposes for the current tax year? A530 NO M.11
-- Deferred portion of total applicable income taxes included in Schedule RI,
items 9 and 11 (to be reported with the December Report of Income) 4772 N/A M.12
</TABLE>
- - ------------
(1) For example, a bank acquired on June 1, 1997, would report 1997/06/01
* Describe on Schedule RI-E - Explanations.
<PAGE> 16
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- - ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coin (1) 0081 4,343 1.a
b. Interest-bearing balances (2) 0071 100 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 1,005 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 126,262 2.b
3. Federal funds sold and securities purchased under agreements to resell 1350 242,100 3
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule RC-C) 2122 974,086 4.a
b. LESS: Allowance for loan and lease losses 3123 18,688 4.b
c. LESS: Allocated transfer risk reserve 3128 0 4.c
d. Loans and leases, net of unearned income, RCFD
allowance, and reserve (item 4.a minus 4.b and 4.c) 2125 955,398 4.d
5. Trading assets (from Schedule RC-D) 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 1,608 6.
7. Other real estate owned (from Schedule RC-M) 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
10. Intangible assets (from Schedule RC-M) 2143 0 10.
11. Other assets (from Schedule RC-F) 2160 18,486 11.
12. Total assets (sum of items 1 through 11) 2170 1,349,302 12.
</TABLE>
- - -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 17
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
- - ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E. RCON
part I) RCON 2200 550,811 13.a
(1) Noninterest-bearing (1) 6831 238,856 13.a.1
(2) Interest-bearing 6836 311,955 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E. RCFN
part II) RCFN 2200 400,000 13.b
(1) Noninterest-bearing 6631 0 13.b1
(2) Interest-bearing 6636 400,000 RCFD 13.b2
14. Federal funds purchased and securities sold under agreements to repurchase 2800 0 14
RCON
15. a. Demand notes issued to the U.S. Treasury 2840 0 15.a
RCFD
b. Trading liabilities (from Schedule RC-D) 3548 0 15.b
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less 2332 12,000 16.a
b. With a remaining maturity of more than one year through three years A547 0 16.b
c. With a remaining maturity of more than three years A548 132,874 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 2920 0 18
19. Subordinated notes and debentures(2) 3200 50,000 19
20. Other liabilities (from Schedule RC-(3) 2930 61,520 20
21. Total liabilities (sum of items 13 through 20) 2948 1,207,205 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838 0 23
24. Common Stock 3230 52,250 24
25. Surplus (exclude all surplus related to preferred stock) 3839 52,750 25
26. a. Undivided profits and capital reserves 3632 36,357 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities 8434 740 26.b
27. Cumulative foreign currency translation adjustments 3284 0 27
28. Total equity capital (sum of items 23 through 27) 3210 142,097 28
29. Total liabilities and equity capital (sum of items 21 and 28) 3300 1,349,302 29
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external RCFD NUMBER
auditors as of any date during 1996 6274 N/A M.1
</TABLE>
1= Independent audit of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm which submits a
report on the bank
2= Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3= Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4= Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5= Review of the bank's financial statements by external auditors
6= Compilation of the bank's financial statements by external auditors
7= Other audit procedures (excluding tax preparation work)
8= No external audit work
- - --------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits. Includes limited-life preferred stock and related surplus.
