Exhibit T3C
CONSECO, INC.,
as Issuer,
and
WILMINGTON TRUST COMPANY,
as Trustee
------------------------
INDENTURE
Dated as of , 2003
----------------- ---
--------------------------
8 1/8% Senior Notes due February, 2006
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................1
Section 1.1 Definitions............................................................................1
Section 1.2 Compliance Certificates and Opinions...................................................6
Section 1.3 Form of Documents Delivered to Trustee.................................................6
Section 1.4 Acts of Holders........................................................................7
Section 1.5 Notices, etc., to Trustee and Company..................................................8
Section 1.6 Notice to Holders Waiver...............................................................8
Section 1.7 Conflict with Trust Indenture & Act....................................................8
Section 1.8 Effect of Headings and Table of Contents...............................................8
Section 1.9 Successors and Assigns.................................................................9
Section 1.10 Separability Clause....................................................................9
Section 1.11 Benefits of Indenture..................................................................9
Section 1.12 Governing Law..........................................................................9
Section 1.13 Legal Holidays.........................................................................9
Section 1.14 Counterparts...........................................................................9
Section 1.15 Immunity of Shareholders, Directors, Officers and Agents of the
Company and the Trustee................................................................9
ARTICLE II SECURITY FORMS........................................................................................10
Section 2.1 Forms Generally.......................................................................10
Section 2.2 Form of Face of Security..............................................................10
Section 2.3 Form of Reverse of Security...........................................................14
ARTICLE III THE SECURITIES.......................................................................................15
Section 3.1 Title and Terms.......................................................................15
Section 3.2 Denominations.........................................................................16
Section 3.3 Execution, Authentication, Delivery and Dating........................................16
Section 3.4 Temporary Securities..................................................................17
Section 3.5 Registration, Registration of Transfer and Exchange...................................17
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities......................................19
Section 3.7 Payment of Interest; Interest Rights Preserved........................................19
Section 3.8 Persons Deemed Owners.................................................................21
Section 3.9 Cancellation..........................................................................21
Section 3.10 Computation of Interest...............................................................21
ARTICLE IV DEFEASANCE AND COVENANT DEFEASANCE....................................................................21
Section 4.1 Company's Option to Effect Defeasance or Covenant Defeasance..........................21
Section 4.2 Defeasance and Discharge..............................................................21
Section 4.3 Covenant Defeasance...................................................................22
Section 4.4 Conditions to Defeasance or Covenant Defeasance.......................................22
Section 4.5 Deposited Money And U.S. Government Obligations to be Held in
Trusts; Other Miscellaneous Provisions................................................24
Section 4.6 Reinstatement.........................................................................24
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ARTICLE V REMEDIES...............................................................................................24
Section 5.1 Events of Default.....................................................................24
Section 5.2 Acceleration of Maturity; Rescission and Annulment....................................26
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.......................27
Section 5.4 Trustee May File Proofs of Claims.....................................................27
Section 5.5 Trustee May Enforce Claims Without Possession of Securities...........................28
Section 5.6 Application of Money Collected........................................................28
Section 5.7 Limitation on Suits...................................................................28
Section 5.8 Unconditional Right of Holders to Receive Principal and Interest......................29
Section 5.9 Restoration of Rights and Remedies....................................................29
Section 5.10 Rights and Remedies Cumulative........................................................29
Section 5.11 Delay or Omission Not Waiver..........................................................29
Section 5.12 Control by Holders....................................................................30
Section 5.13 Waiver of Past Defaults...............................................................30
Section 5.14 Waiver or Stay or Extension Laws......................................................30
ARTICLE VI THE TRUSTEE...........................................................................................31
Section 6.1 Certain Duties and Responsibilities(a) Except during the continuance
of an Event of Default:...............................................................31
Section 6.2 Notice of Defaults....................................................................31
Section 6.3 Certain Rights of Trustee.............................................................32
Section 6.4 Not Responsible for Recitals or Issuance of Securities................................32
Section 6.5 May Hold Securities...................................................................33
Section 6.6 Money Held in Trust...................................................................33
Section 6.7 Compensation and Reimbursement........................................................33
Section 6.8 Qualification of Trustee; Conflicting Interests.......................................33
Section 6.9 Corporate Trustee Required; Eligibility...............................................33
Section 6.10 Resignation and Removal; Appointment of Successor.....................................34
Section 6.11 Acceptance of Appointment by Successor................................................35
Section 6.12 Merger, Conversion, Consolidation or Succession to Business...........................35
Section 6.13 Preferential Collection of Claims Against Company.....................................36
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................................36
Section 7.1 Preservation of Information; Company to Furnish Trustee Names
and Addresses of Holders..............................................................36
Section 7.2 Communications to Holders.............................................................36
Section 7.3 Reports by Trustee....................................................................36
Section 7.4 Reports by Company....................................................................36
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................................36
Section 8.1 Company May Consolidate, etc., Only on Certain Terms..................................36
Section 8.2 Successor Substituted.................................................................37
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................37
Section 9.1 Supplemental Indentures without Consent of Holders....................................37
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Section 9.2 Supplemental Indentures with Consent of Holders.......................................38
Section 9.3 Execution of Supplemental Indentures..................................................38
Section 9.4 Effect of Supplemental Indentures.....................................................39
Section 9.5 Conformity with Trust Indenture Act...................................................39
Section 9.6 Reference n Securities to Supplemental Indentures.....................................39
Section 9.7 Record Date...........................................................................39
ARTICLE X COVENANTS..............................................................................................39
Section 10.1 Payment of Principal and Interest.....................................................39
Section 10.2 Maintenance of Office or Agency.......................................................39
Section 10.3 Money for Security Payments to be Held in Trust.......................................40
Section 10.4 Corporate Existence...................................................................41
Section 10.5 Compliance Certificate................................................................41
Section 10.6 Limitation on Issuance or Disposition of Stock of Significant Subsidiaries............41
Section 10.7 Limitation on Liens...................................................................42
ARTICLE XI REDEMPTION OF SECURITIES..............................................................................42
Section 11.1 No Right of Redemption................................................................42
ARTICLE XII ARTICLE XII SATISFACTION AND DISCHARGE.............................................................42
Section 12.1 Satisfaction and Discharge of Indenture...............................................42
Section 12.2 Application of Trust Money............................................................43
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 2003
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Trust Indenture Act Section Indenture Section
ss.ss.310 (a) (1) ........................................................................... 6.9
(a) (2) ........................................................................... 6.9
(a) (3) ........................................................................... Not Applicable
(a) (4) ........................................................................... Not Applicable
(a) (5) ........................................................................... 6.9
(b) ........................................................................... 6.8, 6.10
ss.ss.311 (a) ........................................................................... 6.13
(b) ........................................................................... 6.13
ss.ss.312 (a) ........................................................................... 7.1
(b) ........................................................................... 7.2
(c) ........................................................................... 7.2
ss.ss.313 (a) ........................................................................... 7.3
(b) ........................................................................... 7.3
(c) ........................................................................... 7.3
(d) ........................................................................... 7.3
ss.ss.314 (a) ........................................................................... 7.4
(a) (4) ........................................................................... 1.2
(b) ........................................................................... Not Applicable
(c) (i) ........................................................................... 1.2
(c) (2) ........................................................................... 1.2
(c) (3) ........................................................................... Not Applicable
(d) ........................................................................... Not Applicable
(e) ........................................................................... 1.2
ss.ss.315 (a) ........................................................................... 6.1(a)
(b) ........................................................................... 1.5, 6.2
(c) ........................................................................... 6.1(b)
(d) ........................................................................... 6.1
(e) ........................................................................... 1.7
ss.ss.316 (a) ........................................................................... 5.12
(a) (1) (A)......................................................................... 5.2, 5.12
(a) (1) (B)......................................................................... 5.13
(a) (2) ........................................................................... Not Applicable
(b) ........................................................................... 5.8
(c) ........................................................................... 5.12
ss.ss.317 (a) (1) ........................................................................... 5.3
(a) (2) ........................................................................... 5.4
(b) ........................................................................... 10.3
ss.ss.318 (a) ........................................................................... 1.7
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
INDENTURE
THIS INDENTURE (this "Indenture") is made and entered into as of
________ __, 2003, by and between Conseco, Inc., a Delaware corporation
(together with its successors, the "Company"), and Wilmington Trust Company, a
Delaware corporation, as Trustee (the "Trustee")
RECITALS
WHEREAS, the Company deems it necessary to issue from time to
time for its lawful purposes securities (hereinafter called the "Securities")
evidencing its secured indebtedness and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to have such titles, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided; and
WHEREAS, all things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW THEREFORE, for and in consideration of the premises and the
mutual covenants contained herein and in the Indenture and for other good
valuable consideration, the receipt and sufficiency of which are herein
acknowledged, the Company and the Trustee hereby agree for the equal and ratable
benefit of all holders of the Securities as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular,
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to then in accordance with GAAP; and,
(d) 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.
Certain terms, used principally in Articles IV, VI and X, are
defined in those Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Affiliate" of any Person (hereinafter "first Person") means (i)
any other Person which, directly or indirectly, is in control of, is controlled
by or is under common control with such first Person; or (ii) any Person who is
a director or executive officer (as defined in Rule 3b-7 of the Exchange Act) of
either (1) such first Person, or (2), any Person described in clause (i) above.
For the purpose of this definition, "control" of a Person means the power,
direct or indirect, to direct or cause the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the board of directors of the Company
or any duly authorized committee of the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution 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 such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York or
Delaware are authorized or obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of a Person means any obligation that
is required to be classified and counted for as a capital lease on the face of a
balance sheet of such person prepared in accordance with generally accepted
accounting principles; the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with generally accepted accounting
principles; and the Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interest
in (however designated) corporate stock, including any Common Stock or Preferred
Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after he execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means the common stock of the Company, par value
$.__ per share.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
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"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any one of its Chairman of the Board,
its President or a Vice President, and by any one of its Treasurer, an Assistant
Treasurer its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
"Credit Facility" means that certain Credit Agreement, dated as
of __________ __, 2003, among the Company, Bank of America, N.A., and the other
financial institutions party thereto, as amended, modified, extended, renewed,
replaced, or refinanced from time to time.
"Default" means any event which is, or after notice or passage of
time or both would be, an event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in the form of one or more Global Securities,
initially The Depository Trust Company, a limited-purpose trust company
organized under the Banking Law of the State of New York ("DTC"), or any
successor Depositary which shall succeed DTC pursuant to the applicable
provisions of Article III this Indenture.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Generally accepted accounting principles" or "GAAP" means
generally accepted accounting principles as in effect from time to time and as
implemented by the Company.
"Global Security" means a Security evidencing all or part of the
Securities issued in accordance with Article III herein.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means (a) any liability of any Person (1) for
borrowed money, or under any reimbursement obligation relating to a letter of
credit (other than letters of credit obtained in the ordinary course of
business, or (2) evidenced by a bond, note, debenture or similar instrument
(including a purchase money obligation) given in connection with the acquisition
of any businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than accounts payable or other
indebtedness to trade creditors arising in the ordinary course of business), or
(3) for the payment of money relating to a Capital Lease Obligation; (b) any
liability of others described in the preceding clause (a) that the Person has
guaranteed or that is otherwise its legal liability; and (c) any amendment,
supplement,
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modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Lien" means any lien, mortgage, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement and any lease in the nature thereof).
"Obligation(s)" means any principal, interest, premium,
penalties, fees and other liabilities and obligations due under the
documentation governing any Indebtedness (including interest after the
commencement of any bankruptcy, insolvency, rehabilitation, liquidation,
conservation, supervision or similar proceedings).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company or the Trustee, and who shall be reasonably
acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities, and Securities, except to the extent
provided in Sections 4.2 and 4.3, with respect to which the Company has
effected defeasance or covenant defeasance as provided in Article IV; and
(c) Securities 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 of 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 the Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the company or any Affiliate of the Company shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee
4
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee 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 Affiliate of the
Company.
"Paying Agent" means any Person authorized by the company to pay
the principal of, or interest on, any Securities on behalf of the Company and
initially shall be the Trustee.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation over shares of Capital Stock of any other class of such corporation.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the first day (whether or not a Business Day) in the month of
the Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned to the Corporate Trust Office, including any Vice
President, Assistant Vice President, Assistant Secretary or any other officer of
the Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" or "Security" has the meaning specified in the first
recital of this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Significant Subsidiary" means any Subsidiary with (i) assets
which constituted at least 10% of the Company's consolidated total assets, or
(ii) revenues which constituted at least 10% of the company's consolidated total
revenues, or (iii) net earnings which constituted at least 10% of the Company's
consolidated total net earnings, all as determined as of the date of the
Company's most recently prepared quarterly financial statements for the 12-month
period then ended.
"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 interest on any security, means the date specified in such
security as the fixed date on which the principal of such security or such
installment of interest, respectively, is finally due and payable, except as
otherwise provided in the case of Capital Lease Obligations.
5
"Subsidiary" means a corporation of which a majority of the
Capital Stock having voting power under ordinary circumstances to elect a
majority of the board of directors is owned or controlled by the Company or by
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 9.5.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
Section 1.2 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any 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 (including any covenants the compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and, if requested by the Trustee, 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 certificates
provided pursuant to Section 314(a)(4) of the Trust Indenture Act) shall
include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of 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 covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of 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, any 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
6
as to other maters, 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 or her 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 with respect to such
matters are erroneous.
Any certificate or opinion of an officer of the Company or any
opinion of Counsel may be based, insofar as it relates to accounting matters,
upon a certificate, statement or opinion of an accountant or firm of
accountants, unless such officer or counsel, as the case maybe, knows, or in the
exercise of reasonable care should know, that the certificate, statement or
opinion with respect to the accounting matters upon which such certificate or
opinion is based is 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.
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 an 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 or 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 any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.1)
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, or of a writing appointing any such agent, may be
proved in any reasonable manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the transfer thereof or in exchange therefore or in lieu
thereof, in respect of anything done, suffered or omitted to be done by
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the Trustee, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
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:
(a) the Trustee by any Holder or by the company shall be
sufficient for every purpose hereunder if mailed by registered or certified
mail, return-receipt requested, to the Trustee addressed to it at its
principal corporate Trust Office and to the attention of Corporate Trust
Administration or at any other address previously furnished in writing to
the Holders and the Company by the Trustee; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as provided in Section 5.1(c))
hereunder if in writing and mailed by certified or registered ail,
return-receipt requested, to the Company addressed to it at 00000 Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: General Counsel, or
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 any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed
first-class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. 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. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. 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
the 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.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
Section 1.8 Effect of 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.
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Section 1.9 Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and Assigns, whether
so expressed or not.
Section 1.10 Separability Clause. In case any provision in this
Indenture or in 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 1.11 Benefits of Indenture. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person (other than the
parties hereto and their successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.12 Governing Law. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS INDENTURE AND THE SECURITIES, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 1.13 Legal Holidays. In any case where any Interest
Payment Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date or at the Stated Maturity and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 1.14 Counterparts. This Indenture may be signed in any
number of counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such counterparts together
shall be deemed an original of this Indenture.
Section 1.15 Immunity of Shareholders, Directors, Officers and
Agents of the Company and the Trustee. The Trustee recognizes and agrees that
the obligations of the Company under the Indenture and the Securities and all
documents delivered in the name of the Company in connection herewith and
therewith do not and shall not constitute personal obligations of the directors,
officers or shareholders, as such, past, present or future, of the Company, and
shall not involve any claim against or personal liability on the part of any of
them, and the Trustee agrees to look solely to the assets of the Company in
respect thereof and agrees not to seek recourse against such directors, officers
or shareholders of the Company or any of their personal assets for such
satisfaction.
The obligations of the Trustee under the Indenture and the
Securities do not and shall not constitute personal obligations of the
directors, officers, shareholders or agents, as such, past present or future, of
the Trustee and shall not involve any claim against or personal liability on the
part of any of them and no person shall seek recourse against such directors,
officers, shareholders or agents of the Trustee or any of their personal assets
for satisfaction thereof.
9
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally. The Securities and the Trustee's
certificate of authentication shall be in substantially the form set forth in
this Article, 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 rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The Securities shall be typed, printed, lithographed, photocopied
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
the securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.2 Form of Face of Security. The form of the face of the
Global Securities shall be as set forth below (If a Security is issued in
definitive form, the form of such definitive security will be identical to the
form of the face of the Global Security, except that the three legends appearing
immediately beneath the title of the Security shall be omitted):
CONSECO, INC.
8 1/8% Senior Notes due 2006
THIS NOTE IS A REGISTERED GLOBAL NOTE AND IS REGISTERED IN THE NAME OF CEDE &
CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY ("DTC").
UNLESS THIS REGISTERED GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
REGISTERED FORM, THIS REGISTERED GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC, OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC, OR BY DTC
10
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
No. ________________ $ __________________
CUSIP NO. _________
Conseco, Inc., a Delaware corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________ or registered assigns, the principal sum of _____________
Dollars on February__, 2006 at the office or agency of the Company referred to
below, and to pay interest thereon on December 30, 2003, and semi-annually
thereafter, on June 30 and December 30, in each year, accruing from _______ __,
2003 at the rate of 8 1/8% per annum until the principal hereof is paid or duly
provided for. The interest so payable, and punctually paid duly provided for, on
any Interest Payment Date will, as provided in such indenture, be paid to the
Person in whose name this Security (or one or more predecessor securities of the
same series) is registered at the close of business on the Regular Record Date
for such interest, which shall be the June 1 or December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid, or duly provided for, and interest on
such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Security (or one or more predecessor securities) is registered at the close
of business on a Special Record Date to be fixed by the Trustee for the payment
of such defaulted interest, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. Payment of the principal of, and interest on, this
Security will be made at the office or agency of the Company maintained for that
purpose in Wilmington, Delaware or at such other office or agency of the Company
as may be maintained for such purpose, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the 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: _________ __, ____ CONSECO, INC.
11
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
SEAL
Attest:
------------------------------
12
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By
-----------------------
Authorized Signature
13
Section 2.3 Form of Reverse of Security. (a) The form of the
reverse of the Securities shall be as set forth below:
This Security is one of a duly authorized issue of Securities of
the Company designated as its 8 1/8% Senior Notes due 2006 (herein called the
"Securities") limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $____ million, issued and to be issued
under an indenture (herein called the "Indenture") dated as of _______ __, 2003,
between the Company and Wilmington Trust Company, as trustee (herein called the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness on this Security and (b) certain restrictive
covenants and certain Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Securities may not be redeemed prior to their maturity.
If an Event of Default shall occur and be continuing, there may
be declared due and payable in the manner and with the effect provided in the
Indenture the principal of this Security, plus all accrued and unpaid interest
to and including the date the Securities become due and payable.
The Indenture permits, with certain exception as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
interest on, this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
Wilmington, Delaware or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a
14
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made to the Holders for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $____ million, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Sections 3.3, 3.4, 3.5, 3.5, or 9.6.
The Securities shall be known and designated as the "8 1/8%
Senior Notes due 2006." Their Stated Maturity shall be February __, 2006. The
Securities shall bear interest at the rate of 8 1/8% per annum from ________ __,
2003, or from the most recent interest payment date to which interest has been
paid, as the case may be, payable on December 30, 2003 and semiannually
thereafter on June 30 and December 30 of each year to the Person in whose name
the Security or any predecessor Security is registered at the close of business
on the June 1 or December 1 next preceding such interest payment date until the
principal thereof is paid or duly provided for. Interest on any overdue
principal amount shall be payable on demand.
The principal of, and interest on, the Securities shall be
payable, at the office or agency of the Company maintained for such purpose in
Wilmington, Delaware or at such other office or agency of the Company as may be
maintained for such purpose; provided, however, that, at the option of the
Company, interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Registrar.
15
The Securities are not redeemable prior to Stated Maturity.
At the election of the Company, the entire indebtedness on the
Securities or certain of the Company's Obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article V.
Section 3.2 Denominations. The Securities shall be issuable only
in fully registered form, without coupons, and only in denominations of $1,000
and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities 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 on the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities 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 such Company order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signer and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
In case the Company, pursuant to Article VIII, shall be
consolidated or merged with or into any other Person or shall convey, transfer
or lease substantially all of its properties and assets to any Person, and the
successor Person resulting from such consolidation, or surviving such merger, or
into which the Company shall have been merged, or the Person which shall have
received a conveyance, transfer or disposition as aforesaid, shall have executed
an indenture supplemental hereto with the Trustee pursuant to Article VIII, any
of the Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer or disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and
16
delivered in any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of any Securities,
such successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all securities at the time Outstanding for
Securities authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities on behalf of the Trustee. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so except upon original issuance. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agency has the same rights as
any Security Registrar or Paying Agent to deal with the Company and its
Affiliates.
Section 3.4 Temporary Securities. Pending the preparation of
definitive Securities or a permanent Global Security, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities or a permanent Global Security 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, a
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities or beneficial interest in a permanent
Global Security, as the case may be, upon surrender of the temporary Securities
at the office or agency of the Company designated for such purpose pursuant to
Section 10. 2, without charge to the Holder Upon surrender for cancellation of
anyone or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefore like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities or beneficial interests in a
permanent Global Security, as the case may be.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at one of its offices or agencies maintained
pursuant to Section 10. 2 a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 10.2 being herein
sometimes referred to as the "Security Register") in which subject to such
reasonable regulations as the Security Registrar may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Trustee is hereby initially appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided,
subject to Section 10.2.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 10.2, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations, of a like aggregate principal
amount.
17
At the option of the Holder, Securities (except a Global
Security) may be exchanged for other Securities of any authorized denomination
or denominations, of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so 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.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for securities in definitive
registered form, a Global Security representing all or a portion of the
securities may not be transferred except as a whole by the Depositary to the
nominee of 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
successor Depositary or to a nominee of such successor Depositary.
The Depositary must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act, and any other applicable statute or regulation.
If at any time the Depositary for the Securities notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities or if at any time the Depositary for the Securities shall no longer
be eligible as provided in the preceding paragraph, the Company shall appoint a
successor Depositary with respect to the Securities. If a successor Depositary
for the Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of a written order of the Company
for the authentication and delivery of definitive Securities, will authenticate
and deliver as specified in such written order, Securities in definitive form in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities issued in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities, will authenticate and
deliver as specified in such written order, Securities in definitive form and in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities in exchange for such Global Security or Securities.
In any exchange provided for in either of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities issued in exchange for the Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary shall instruct the Trustee. The Trustee shall deliver such Securities
to the persons in whose names such Securities are so registered.
18
All Securities issued upon any registration of transfer or
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 Security presented or surrendered for registration of
transfer, or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his or her attorney duly authorized in writing.
No service charges shall be made to a Holder for any registration
of transfer or 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 of transfer or exchange of Securities, other
than exchanges pursuant to Sections 3.3, 3.4 or 9.6 not involving any transfer.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If
(a) any mutilated Security is surrendered to the Trustee, or (b) the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company and the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new security, pay any such security.
Upon the issuance of any new securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other securities duly issued hereunder.
The provisions of this Section 3.6 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.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest Payment
19
Date shall be paid to the Person in whose name the Security (or one or more
predecessor securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the 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 notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time 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, and such money when deposited
shall be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Subsection provided. Thereupon 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 in writing of such Special Record Date. In the
name and at the expense of the Company, the Trustee shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefore to be mailed, first-class postage prepaid, to each Holder at his
or her address as it appears in the Security 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 therefore having been
so called, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective predecessor securities are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the securities ay be listed, and upon such
notice as may be required by such exchange, if, after written notice given
by the Company to the Trustee of the proposed payment pursuant to this
Subsection, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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.
20
Section 3.8 Persons Deemed Owners. Prior to and at the time of
due presentment for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of, and (subject to Section 3 .7) interest on,
such Security and for all other purposes whatsoever, whether or not such
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.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 3.9 Cancellation. All Securities surrendered for payment,
registration of transfer or exchange shall be delivered to the Trustee and shall
be promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be destroyed and certification of their
destruction delivered to the Company, unless by a Company order the Company
directs that cancelled Securities be returned to it.
Section 3.10 Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1 Company's Option to Effect Defeasance or Covenant
Defeasance The Company may, at its option by Board Resolution, at any time, with
respect to the Outstanding Securities, elect to have either Section 4.2 or
Section 4.3 be applied to the Outstanding Securities upon compliance with the
conditions set forth below in this Article IV.
Section 4.2 Defeasance and Discharge. Upon the Company's exercise
under Section 4.1 of the option applicable to this Section 4.2, the Company
shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness as
represented by the Outstanding Securities, which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 4.5 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon written request, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities to
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receive solely from the trust fund described in Section 4.4 and as more fully
set forth in such Section, payments in respect of the principal of, and interest
on, such Securities when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 3.4, 3.5, 3.6 and 10.2, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee's rights under Section 6.7, and (D)
this Article IV.
Section 4.3 Covenant Defeasance. Upon the Company's exercise
under Section 4 1 of the option applicable to this Section 4 3, the Company
shall be released front its obligations under any covenant contained in Section
10.4 (except to the extent it applies to the continued corporate existence of
the Company) and Sections 10.6 and 10.7, with respect to the Outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities 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 such covenants, but shall continue to be deemed Outstanding for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities, 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 Article, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 5.1(c), but, except as specified
above, the remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 4.4 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 4.2 or
Section 4.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirement
of Section 6.9 who shall agree to comply with the provisions of this
Article IV applicable to it) as trust funds in trust for the purpose of the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) cash in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of, and
interest on, the Outstanding Securities on the Stated Maturity; provided
that the Trustee shall have been irrevocably instructed, by Company Order,
to apply such money or the proceeds of such U.S. Government Obligations to
said payments with respect to the Securities. For this purpose, "U.S.
Government Obligation" means securities that are (x) direct obligations of
the United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of
America the timely payment on which is unconditionally guaranteed as full
faith and credit obligation by the United States of
22
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended), a custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received
by such custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as subsections 5.1(f) and (g) are concerned, at any time during the
period ending on the 91st day after the date of such deposit.
(3) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest as defined in
Section 6.8 and for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 4.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, 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 the Outstanding Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(6) In the case of an election under Section 4.3, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance.
(7) In the case of an election under either Sections 4.2 or 4.3,
the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit neither constitutes,
nor is qualified as, a regulated investment company under the Investment
Company Act of 1940.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 4.2
or the covenant defeasance under Section 4.3 (as the case may be) have been
complied with.
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Section 4.5 Deposited Money And U.S. Government Obligations to be
Held in Trusts; Other Miscellaneous Provisions. All money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee -- collectively for purposes of this Section 4.5, the
"Trustee") pursuant to Section 4.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article IV to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 4.4 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
Section 4.6 Reinstatement. If the Trustee is unable to apply any
money or U.S. Government Obligations in accordance with this Article IV by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article IV until such time as the Trustee is permitted to apply
all such money or U.S. Government Obligations in accordance with this Article
IV; provided, however, that, if the Company has made any payment of interest on,
or principal of, any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the right of the Holders of such Securities
to receive such payment from the money or U.S. Government Obligations held by
the Trustee.
ARTICLE V
REMEDIES
Section 5.1 Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (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 judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment when due of the principal of any
Security at its Stated Maturity; or
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(b) default in the payment of any interest on any Security when
it becomes due and payable, and continuance of such default for a period of
30 days; or
(c) default in the performance, or breach, of any terms, covenant
or warranty of the Company contained in the Securities or this Indenture,
and continuance of such default or breach for 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
aggregate principal amount of the Outstanding Securities 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; or
(d) default with respect to any Obligation of the Company (other
than its Obligations under the Securities), or of any Subsidiary, whether
as principal, guarantor, surety or other obligor, for the payment or any
indebtedness having an aggregate principal amount in excess of $40 million
and (1) either (1) such default is upon the Stated Maturity of such
Indebtedness or (2) as a result of such default the maturity of such
Indebtedness has been accelerated prior to its Stated Maturity and (ii)
such Indebtedness has not been paid in full or such acceleration has not
been rescinded, annulled, or waived prior to the entry of a final judgment
in favor of the holders thereof; or
(e) one or more final and nonappealable judgments, orders or
decrees which require the payment in money, either individually or in an
aggregate amount, of more than $50 million shall be entered against the
Company or any Subsidiary or any of their respective properties which is
not adequately covered by insurance or bond (subject to reasonable
deductibles) and shall not be discharged and there shall have been a period
of 60 days during which stays of the enforcement of such judgments or
orders, by reason of pending appeal or otherwise, shall not be in effect;
or
(f) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, rehabilitation, liquidation,
conservation or supervision or other similar law now or hereafter in effect
or appointing a custodian, rehabilitator, conservator, supervisor, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary for any substantial part of its or their property, or ordering
the winding up or liquidation of its or their affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(g) the commencement by the company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, rehabilitation, liquidation, conservation or
supervision or other similar applicable law now or hereafter in effect, or
the consent by the Company or any significant Subsidiary to the entry of a
decree or order for relief in respect of the Company or such Significant
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, rehabilitation, liquidation,
conservation or supervision or other similar applicable law now or
hereafter in effect, or to the commencement of any bankruptcy, insolvency
or similar case or preceding against
25
it, or the consent by the Company or any Significant Subsidiary to the
filing of such petition or the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, rehabilitator, conservator,
supervisor, trustee, sequestrator or similar official of the Company or any
such Significant Subsidiary or of any substantial part of its property, or
the taking by it of an assignment for the benefit of creditors, or the
admission by the Company or any Significant Subsidiary in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Significant Subsidiary in
furtherance of any such action.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities Outstanding may, and the Trustee upon the request of the Holders of
not less than 25% in aggregate principal amount of the Securities Outstanding
shall, declare the principal of all the Securities to be due and payable
immediately in an amount equal to the principal amount of the Securities,
together with accrued and unpaid interest to the date the securities become due
and payable, by a notice in writing to the Company and, upon any such
declaration such principal and all interest and other amounts shall become due
and payable, immediately. If an Event of Default specified in Section 5.1(f) or
(g) occurs and is continuing, then the principal of all the Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made
and before a judgment 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 principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(1) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(2) all overdue interest on all Securities,
(3) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest thereon at
the rate borne by the Securities, and
(4) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities; and
(b) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such
declaration o acceleration, shall have been cured or waived. No such
rescission shall affect any subsequent Default or impair any right
consequent thereon.
26
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security
at the Stated Maturity thereof, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal and
interest, with interest upon the overdue principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; 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 the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and my prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders 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 enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claims. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, rehabilitation, conservation, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or the property
of the Company, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the hole amount of principal
and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to collect and receive any money or other property payable or
deliverable on any such claims and to distribute the same;
27
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 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 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
organization, arrangement, adjustment or composition affecting the Securities or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities my be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expanses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Application of Money Collected. Any money collected
by the Trustee pursuant to this Article, shall be applied 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 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 payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
securities for principal and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7 Limitation on Suits. No Holder of any Securities
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:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
28
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the cost, expenses and liabilities to
be incurred in compliance with such request:
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities; it being understood and
intended that 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, distribute or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, and (subject
to Section 3.7) interest on, such Security on the respective Stated Maturities
expressed in such Security and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.9 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 came the Company, the Trustee and the Holder shall, subject to
any determination in such proceeding, 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 has been
instituted.
Section 5.10 Rights and Remedies Cumulative. Except as provided
in Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Trustee and 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 existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
29
Section 5.12 Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee,
provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction: and
(c) the Trustee shall not determine that the action so directed
would be unduly prejudicial to the Holders not taking part in such
direction or shall not have reasonable cause to believe adequate indemnity
against risk or liability is not reasonably assured to it.
The Company may set record date for purposes of determining the
identity of Holders of Securities entitled to vote or consent to any action by
vote or consent authorized or permitted by Subsection 316(a) of the Trust
Indenture Act. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
Securities furnished to the Trustee pursuant to Section 7.1 of this Indenture
prior to such solicitation.
Section 5.13 Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities may on behalf
of the Holders of all the Securities waive any past Default hereunder and its
consequences, except a Default:
(a) in the payment of the principal of or interest on any
Security, for which a waiver of past default shall require the consent of
each Holder of Outstanding Securities, or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected for which a waiver of past default
shall require the consent of each Holder of Outstanding Securities.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have bean cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 5.14 Waiver or 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 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,
30
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.
ARTICLE VI
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default:
(A) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificate or opinions which by provision hereof are
specifically required to be furnished to the trustee, the Trustee shall be
under duty to examine the same to determine whether or not they conform to
the requirements for this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its negligent action, its own negligent
failure to act, or its own willful misconduct, except that no provision of
this Indenture shall require the Trustee 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 any 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.
(d) 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.
Section 6.2 Notice of Defaults. Within 90 days after the
occurrence of any Default hereunder, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register, notice of
such Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.
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Section 6.3 Certain Rights of Trustee. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence or
bad faith on its part, rely upon an Officers' Certificate and Opinion of
Counsel;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it herein in good faith and in reliance thereon;
(e) 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;
(f) 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, condition, consent, order,
bond, debenture, note, other evidence or 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 see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of
Securities. 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 representations as to the validity or sufficiency of this
32
indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of the securities or the proceeds thereof.
Section 6.5 May Hold Securities. The Trustee, any Paying Agent,
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities, and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 6.6 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.
Section 6.7 Compensation and Reimbursement. The company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
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 this trust, including the 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.
To secure the Company's payment obligations in this Section 6.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee except such money and property held in trust to pay
principal of and interest on particular Securities. Such lien shall survive
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(f) or (g) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any federal or state bankruptcy law.
Section 6.8 Qualification of Trustee; Conflicting Interests. The
Trustee shall be subject to and comply with the provisions of Section 310(b) of
the Trust Indenture Act regarding the disqualification or the Trustee in the
event that it acquires any conflicting interest as therein defined.
Section 6.9 Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which satisfies the requirements of Trust
Indenture Act Sections 310(a)(1) and 310(a) (5), has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
Federal or State authority. If at any time the Trustee shall cease to
33
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act pursuant to Section 6.8 hereof after
written request therefore by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months
unless the Trustee's duty to resign i stayed in accordance with
Section 310(b) of the Trust Indenture Act, or
(ii) the Trustee shall case to b eligible under Section 6.9
and shall fail to resign after written request therefore by the
Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any case, (1) the Company by a Board Resolution may remove the Trustee,
or (2) subject to Section 315(e) of the Trust Indenture Act, the Holder of any
Security 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
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
not have been appointed by the Company, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the Successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor
34
Trustee and supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the
Holders of the Securities and accepted appointment in the manner
hereinafter provided, the Trustee or the Holder of any Security who has
been a bona fide Holder for at least six months may, subject to Section
315(e) of the Trust Indenture Act, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust office.
Section 6.11 Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and 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; but, on 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, trust and duties 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 subject to the lien provided in Section 6.7.
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 such
successor Trustee all such rights, powers, trusts and duties.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Notwithstanding replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
Section 6.12 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 of the corporate trust
business of the Trustee, shall be the successor of 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 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.
35
Section 6.13 Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any credit or relationship listed in Section 311(b) of that Act. If
the present or any future Trustee shall resign or be removed, it shall be
subject to Section 311(a) of the Trust Indenture Act to the extent provided
therein.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders. Neither the Company nor the Trustee shall be
under any responsibility with regard to the accuracy such list. The Company, in
furnishing information concerning Holders to the Trustee, and the Trustee will
satisfy the requirements imposed upon each of them by Section 312(a) of the
Trust Indenture Act.
Section 7.2 Communications to Holders. Holders may communicate
with other Holders with respect to their rights under this Indenture or under
the Securities pursuant to Section 312(h) of the Trust Indenture Act. The
Company and the Trustee and any and all other Persons benefited by this
Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
Section 7.3 Reports by Trustee. Within 60 days after each May 15,
commencing May 15, 2004, the Trustee shall mail to Holders a brief report dated
as of such date that complies with Section 313(a) of the Trust Indenture Act,
but only if such report is required in any year under such Section 313(a) of the
Trust Indenture Act. The Trustee shall also comply with sections 313(b) and
313(c) of the Trust Indenture Act. At the time of its mailing to Holders, a copy
of each report shall be filed with the Commission and with each stock exchange
on which the Securities are listed. The Company shall notify the Trustee when
and if the Securities are listed on any stock exchange.
Section 7.4 Reports by Company. The Company shall file such
annual and/or periodic reports and certificates with the Trustee and/or with the
Commission and/or with the Holders as are required by the provisions of Section
314(a) of the Trust Indenture Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other Person or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any Person,
unless:
(i) either (1) the Company shall be the continuing corporation or
(2) the Person (if other than the Company) formed by such consolidation or
into which the Company is
36
merged or the Person that acquires by sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all o the properties
and assets of the Company as an entirety (A) shall be a corporation,
partnership or trust organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (B)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, and interest on, all the Securities
and the performance and observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(ii) immediately before or immediately after giving pro forma
effect to such transaction (and treating any Indebtedness not previously an
obligation of the Company or a Subsidiary which becomes the obligation of
the Company or any of its Subsidiaries in connection with or as a result of
such transaction as having been incurred at the time of such transaction),
no Default shall have occurred and be continuing; and
(iii) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that the conditions specified in clauses (i) and (ii) above have been
satisfied.
Section 8.2 Successor Substituted. Upon any consolidation or
merger, or any sale, assignment, conveyance, transfer or disposition of all or
substantially all of the properties and assets of the Company, as an entirety in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or the successor Person to which such sale,
assignment, conveyance, transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein; and thereafter, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 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
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to cure any ambiguity, to correct or supplementary provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other
37
provisions with respect to matters arising under this Indenture; provided,
that, in each such came, such provisions shall not adversely affect the
interests of the Holders; or
(d) to comply with the requirements of the commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.5 or otherwise.
Section 9.2 Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than a majority in aggregate principal
amount of the outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the coin or currency in
which any Security or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment after the Stated
Maturity thereof; or
(b) reduce the percentage in principal amount of the Outstanding
Securities, 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 his Indenture or certain
Defaults hereunder and their consequences) provided for in this Indenture;
or
(c) modify any of the provisions of this Section or Section 5.13
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby.
Upon the request of the Company, accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate 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
38
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 9.4 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 shall be bound
thereby.
Section 9.5 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the 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
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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.
Section 9.7 Record Date. The company may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders
entitled to consent to any supplemental indenture or any waiver. If a record
date is fixed those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such supplemental indenture or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal and Interest. The Company will
duly and punctually pay the principal of, and interest on, the Securities in
accordance with the terms of the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency. The Company will
maintain an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The office of the Trustee at its
Corporate Trust Office shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more
of such purposes. The Company will give prompt written notice to the Trustee of
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
39
Office, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes, and may from time to time rescind such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such office or agency.
Section 10.3 Money for Security Payments to be Held in Trust. If
the Company shall at any time act as its own Paying Agent, it will, on or not
more than one Business Day before each due date of the principal of, or interest
on, any of the Securities, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal 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 of its action or
failure so to act.
If the Company is not acting as Paying Agent, the company will,
on or before each due date of the principal of, or interest on, any Securities,
deposit with a Paying Agent a sum in same day funds sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
If the Company is not acting a Paying Agent, the Company will
cause each Paying Agent 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:
(a) hold all sums held by it for the payment of the principal of,
or interest on, Securities 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;
(b) give the Trustee notice of any default by the Company in the
making of any payment of principal or interest;
(c) 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: and
(d) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
disabilities of 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, 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 trusts 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
40
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 the principal of, or interest
on, any Security and remaining unclaimed for two years after such principal 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 older of such Security 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 Borough of Manhattan, The City of
New York, or mail to each such Holder, or both, 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 notification, publication or ailing, any unclaimed
balance of such money than remaining will be repaid to the Company.
Section 10.4 Corporate Existence. Subject to Article VIII of this
Indenture, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence, rights
(charter and statutory) and franchises of the Company and each Significant
Subsidiary; provided, however, that the Company shall not be required to
preserve any such right or franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders; and provided, further, however, that the
foregoing shall not prohibit a sale, transfer or conveyance in compliance with
the terms of this Indenture.
Section 10.5 Compliance Certificate. The Company shall deliver to
the Trustee, within 120 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating as to each such officer signing such Officers' Certificate,
that to the best of his knowledge, each has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge and
what action each is taking or proposes to take with respect thereto). The
Officers' Certificate delivered pursuant to this Section 10.5 shall include the
signature of the Company's principal executive officer, the principal financial
officer or the principal accounting officer.
Section 10.6 Limitation on Issuance or Disposition of Stock of
Significant Subsidiaries. The Company will not, nor will it permit any
Significant Subsidiary to, issue, sell or otherwise dispose of any shares of
Capital Stock (other than Preferred Stock or Common Stock issued upon conversion
of such Preferred Stock) of any Significant Subsidiary, except for (i)
directors' qualifying shares; (ii) sales or other dispositions to the Company or
to one or more
41
wholly-owned Subsidiaries; (iii) the sale or other disposition of all or any
part of the Capital Stock of any Significant Subsidiary for consideration which
is at least equal to the fair value of such Capital Stock as determined by the
Company's board of directors (acting in good faith); or (iv) any issuance, sale,
assignment, transfer or other disposition made in compliance with an order of a
court or regulatory authority of competent jurisdiction, other than an order
issued at the request of the Company or any Significant Subsidiary.
Section 10.7 Limitation on Liens. Except as provided below,
neither the Company nor any Significant Subsidiary may incur, issue, assume or
guarantee any Indebtedness secured by a Lien on any property or assets of the
Company or any Significant Subsidiary, or any shares of Capital Stock of any
Significant Subsidiary, without effectively providing that the Securities
(together with, if the Company shall so determine, any other Indebtedness which
is not subordinated to the Securities) shall be secured equally and ratably with
(or prior to) such Indebtedness, so long as Indebtedness shall be so secured;
provided, however, that this covenant shall not apply to Indebtedness secured by
(i) Liens existing on the date of this Indenture; (ii) Liens under the Credit
Facility, as amended, modified, extended, renewed, replaced or refinanced from
time to time; (iii) Liens on property of, or on any shares of stock of, any
corporation existing at the time such corporation becomes a Significant
Subsidiary or merges into or consolidates with the Company or a Significant
Subsidiary; (iv) Liens on property or on shares of stock existing at the time of
acquisition thereof by the Company or any Significant Subsidiary; (v) Liens to
secure the financing of the acquisition, construction or improvement of
property, or the acquisition of shares of stock by the Company or any
Significant Subsidiary, provided that such Liens are created not later than one
year after such acquisition or, in the case of property, not later than one year
after completion of construction or commencement of commercial operation,
whichever is later, are limited to the property acquired, constructed or
improved or the shares of stock acquired and do not secure Indebtedness in
excess of the cost of such acquisition, construction or improvement; (vi) Liens
in favor of the Company or any wholly-owned Subsidiary; (vii) Liens required by
governmental authorities; (viii) Liens securing Indebtedness not in excess of
25% of the consolidated total assets of the Company and its Subsidiaries and
(ix) any extension, renewal or replacement in whole or in part, of any Lien
referred to in the foregoing clauses (i) to (viii) inclusive; provided, however,
that (a) such extension, renewal or replacement Lien shall be limited to all or
a part of the same property or shares of stock that secured the Lien extended,
renewed or replaced and (b) the Indebtedness secured by such Lien at such time
is not so increased.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 No Right of Redemption. The Securities may not be
redeemed prior to their Stated Maturity.
ARTICLE XII
SATISFACTION AND DISCHARGE
Section 12.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to surviving rights of
registration of transfer or exchange
42
of Securities herein expressly provided for) as to all outstanding Securities
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either (1) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6 and
(ii) Securities 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 10.3)
have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in the trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest to
the date of such deposit;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 shall survive and,
if money shall have been deposited with the Trustee pursuant to subclause (2) of
Subsection (a) of this Section, the obligations of the Trustee under Section
12.2 and the last paragraph of Section 10.3 shall survive.
Section 12.2 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 12.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities 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 and interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
* * * * * * *
[signature page follows]
43
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 or the day and year first above written.
CONSECO, INC.
By:
----------------------------------
Name:
Title:
Attest:
------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
By:
----------------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of _________, 2003, before me personally came
__________________________, to me known, who being by me duly sworn, did depose
and say that he/she resides at ______________________; that he/she is
_____________________ of WILMINGTON TRUST COMPANY and one of the entities
described in and which executed the above instrument; that he knows the
corporate seal of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such entity; and that he/she signed his/her name thereto
pursuant to like authority.
(NOTARIAL SEAL)
------------------------------------
Name:
------------------------------
Notary Public for the State of
-----
My Commission Expires:
-------------
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of _________, 2003, before me personally came
__________________________, to me known, who being by me duly sworn, did depose
and say that he/she resides at ______________________; that he/she is
_____________________ of CONSECO, INC. and one of the entities described in and
which executed the above instrument; that he knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
entity; and that he/she signed his/her name thereto pursuant to like authority.
(NOTARIAL SEAL)
------------------------------------
Name:
------------------------------
Notary Public for the State of
-----
My Commission Expires:
-------------
