Exhibit T3C
CONSECO, INC.
as Issuer
and
WILMINGTON TRUST COMPANY
as Trustee
-------------------------
INDENTURE
Dated as of , 2003
----------- --
-------------------------
10 1/2% Senior Notes due 2007
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 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...........................................................12
ARTICLE III THE SECURITIES.......................................................................................13
Section 3.1 Title and Terms.......................................................................13
Section 3.2 Denominations.........................................................................14
Section 3.3 Execution, Authentication, Delivery and Dating........................................14
Section 3.4 Temporary Securities..................................................................15
Section 3.5 Registration, Registration of Transfer and Exchange...................................16
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities......................................17
Section 3.7 Payment of Interest; Interest Rights Preserved........................................18
Section 3.8 Persons Deemed Owners.................................................................19
Section 3.9 Cancellation..........................................................................19
Section 3.10 Computation of Interest...............................................................19
ARTICLE IV DEFEASANCE AND COVENANT DEFEASANCE....................................................................20
Section 4.1 Company's Option to Effect Defeasance or Covenant Defeasance..........................20
Section 4.2 Defeasance and Discharge..............................................................20
Section 4.3 Covenant Defeasance...................................................................20
Section 4.4 Conditions to Defeasance or Covenant Defeasance.......................................21
Section 4.5 Deposited Money and U.S...............................................................22
Section 4.6 Reinstatement.........................................................................23
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ARTICLE V REMEDIES...............................................................................................23
Section 5.1 Events of Default.....................................................................23
Section 5.2 Acceleration of Maturity; Rescission and Annulment....................................24
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.......................25
Section 5.4 Trustee May File Proofs of Claims.....................................................26
Section 5.5 Trustee May Enforce Claims Without Possession of Securities...........................26
Section 5.6 Application of Money Collected........................................................27
Section 5.7 Limitation of Suits...................................................................27
Section 5.8 Unconditional Right of Holders to Receive Principal and Interest......................27
Section 5.9 Restoration of Rights and Remedies....................................................28
Section 5.10 Rights and Remedies Cumulative........................................................28
Section 5.11 Delay or Omission Not Waiver..........................................................28
Section 5.12 Control by Holders....................................................................28
Section 5.13 Waiver of Past Defaults...............................................................29
Section 5.14 Waiver of Stay or Extension Laws......................................................29
ARTICLE VI THE TRUSTEE...........................................................................................29
Section 6.1 Certain Duties and Responsibilities...................................................29
Section 6.2 Notice of Defaults....................................................................30
Section 6.3 Certain Rights of Trustee.............................................................30
Section 6.4 Not Responsible for Recitals or Issuance of Securities................................31
Section 6.5 May Hold Securities...................................................................31
Section 6.6 Money Held in Trust...................................................................31
Section 6.7 Compensation and Reimbursement........................................................31
Section 6.8 Qualification of Trustee; Conflicting Interests.......................................32
Section 6.9 Corporate Trustee Required; Eligibility...............................................32
Section 6.10 Resignation and Removal; Appointment of Successor.....................................32
Section 6.11 Acceptance of Appointment by Successor................................................33
Section 6.12 Merger, Conversion, Consolidation or Succession to Business...........................34
Section 6.13 Preferential Collection of Claim Against Company......................................34
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................................34
Section 7.1 Preservation of Information; Company to Furnish Trustee Names and
Addresses of Holders..............................................................34
Section 7.2 Communications to Holders.............................................................34
Section 7.3 Reports by Trustee....................................................................35
Section 7.4 Reports by Company....................................................................35
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................................35
Section 8.1 Company May Consolidate, Etc., Only On Certain Terms..................................35
Section 8.2 Successor Substituted.................................................................36
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................36
Section 9.1 Supplemental Indentures without Consent of Holders....................................36
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Section 9.2 Supplemental Indentures with Consent of Holders.......................................36
Section 9.3 Execution of Supplemental Indentures..................................................37
Section 9.4 Effect of Supplemental Indentures.....................................................37
Section 9.5 Conformity with Trust Indenture Act...................................................37
Section 9.6 Reference in Securities to Supplemental Indentures....................................37
Section 9.7 Record Date...........................................................................38
ARTICLE X COVENANTS..............................................................................................38
Section 10.1 Payment of Principal and Interest.....................................................38
Section 10.2 Maintenance of Office or Agency.......................................................38
Section 10.3 Money for Security Payments to Be Held in Trust.......................................38
Section 10.4 Corporate Existence...................................................................40
Section 10.5 Compliance Certificate................................................................40
Section 10.6 Limitation on Issuance or Disposition of Stock of
Significant Subsidiaries..........................................................40
Section 10.7 Limitation on Liens...................................................................40
ARTICLE XI REDEMPTION OF SECURITIES..............................................................................41
Section 11.1 No Right of Redemption................................................................41
ARTICLE XII SATISFACTION AND DISCHARGE...........................................................................41
Section 12.1 Satisfaction and Discharge of Indenture...............................................41
Section 12.2 Application of Trust Money............................................................42
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _______ __, 2003
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.
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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 them 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.
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"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 purposes 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 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 accounted for as a capital lease on the face of
a balance sheet of such person pre pared 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, participations or other equivalents of or interests
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 the 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.
"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,
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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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
"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, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
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"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 thereto fore 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 shall be
protected in relying upon any such request, demand, authorization, direction,
notice,
4
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, partner ship, joint
venture, association, joint-stock or limited liability 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 circum stances to elect a
majority of the board of directors is owned directly or indirectly 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
as to other
6
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his 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 may be, 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. 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.
(a) 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.
(b) The ownership of Securities shall be proved by the Security
Register.
(c) 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 therefor or in lieu
thereof, in respect of anything done, suffered or omitted to be done by the
Trustee, any Paying Agent or the Company in reliance thereon, whether or
not notation of such action is made upon such Security.
7
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 mail,
return-receipt requested, to the Company addressed to it at [11825 ▇.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Trust Indenture Act. This Indenture shall include the
provisions of the Trust Indenture Act required or automatically deemed to be
incorporated herein. If any provision hereof limits, qualifies or conflicts with
another provision hereof or deemed to be incorporated herein which is required
to be included or incorporated 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.
8
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.
10 1/2% Senior Notes due 2007
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 OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
No. $
-------------------- -----------------
10
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 December [___],
2007 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 10
1/2% per annum until the principal hereof is paid or duly provided for. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more predecessor securities 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 New
York, New York, 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:
-------------------------------------
SEAL
Attest:
----------------------------
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
Section 2.3 Form of Reverse of Security. 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 10 1/2% Senior Notes due 2007 (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 exceptions 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
12
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 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.
13
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to [$24.5] 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, 3.6, or 9.6.
The Securities shall be known and designated as the "10 1/2% Senior Notes
due 2007." Their Stated Maturity shall be December [___], 2007. The Securities
shall bear interest at the rate of 10 1/2% per annum from December 30, 2003 or
from the most recent interest payment date to which interest has been paid, as
the case may be, payable on June 30, 2004 and semiannually thereafter on
December 30 and June 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 Register.
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 IV.
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.
14
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 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 agent 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, as
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 interests 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 any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a
15
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.
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 a 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.
16
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.
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 a 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 charge 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.
17
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 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 therefor 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
18
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names 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 may 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.
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.
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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 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 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
from 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.
20
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:
(i) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
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 a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of, and
interest on, the Outstanding Securities on the Stated Maturities of such
principal and interest installments; 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 Obligations" 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 of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of 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) as 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.
(ii) 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.
(iii) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest as defined in and
for purposes of the Trust Indenture Act with respect to any securities of
the Company.
(iv) 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.
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(v) 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.
(vi) 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.
(vii) In the case of an election under either Section 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.
(viii) 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.
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.
22
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 rights 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
(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 a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
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 of any
Indebtedness having an aggregate principal amount in excess of $40 million
and (i) 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
23
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 proceeding against 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 making 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.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is or with the giving of notice or the lapse of time would
become an event which is or with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
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
24
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
(i) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(ii) all overdue interest on all Securities, 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
(iii) 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 nonpayment of principal of
the Securities which have become due solely by such declaration of
acceleration, shall have been cured or waived. No such rescission shall
affect any subsequent Default or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(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
25
of the sums so due and unpaid and may 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 whole 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;
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
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee 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, expenses,
disbursements and
26
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 of 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;
(c) such Holder or Holders have offered to the Trustee reasonable
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
27
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 case the Company, the Trustee and the Holders 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.
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. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 6.1, that the Trustee determines is unduly
prejudicial to the rights of other Holders of Securities or would involve the
Trustee in personal liability with respect to which reasonable indemnity
satisfactory to the Trustee is not available; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to the taking of any action hereunder,
the Trustee shall be entitled to reasonable indemnification satisfactory to the
Trustee against all losses and expenses caused by taking or not taking such
action. This paragraph shall be in lieu of Section 316(a)(1)(A) of the Trust
Indenture Act and such Section 316(a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
The Company may state a 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
28
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 been 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 of 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,
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 certificates or opinions which by provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
for this Indenture.
29
(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 and to the provisions of the Trust Indenture Act.
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.
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 of 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
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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 of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may 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 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
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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 payment obligations and
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 of 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 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:
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(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
therefor 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 is
stayed in accordance with Section 310(b) of the Trust Indenture Act, or
(ii) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor 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,
and the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor 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
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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, trusts
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.
Section 6.13 Preferential Collection of Claim Against Company. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor 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 of 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
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Section 312(b) 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. Reports filed with the Commission shall be filed with
the Trustee within fifteen days thereafter.
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 merged or the Person that acquires, by sale,
assignment, conveyance, transfer, lease or disposition, all or
substantially all of 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 and 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 or such Person and its subsidiaries
in connection with or as a result of such transaction as having been
incurred by the Company at the time of such transaction), no Default shall
have occurred and be continuing; and
35
(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 supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters arising
under this Indenture; provided, that, in each such case, 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:
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(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 this 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 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
37
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 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.
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If the Company is not acting as Paying Agent, the Company will, not later
than the close of business one Business Day prior to 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 as 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; 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
(c) 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 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
Holder 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 mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
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Section 10.4 Corporate Existence. Subject to Article VIII, 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 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 or her 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 wholly-owned Significant 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 such Indebtedness shall be so secured; provided,
however, that this covenant shall not apply to Indebtedness secured by (i) Liens
existing on the date of the 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
40
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 as a 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 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;
41
(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]
42
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CONSECO, INC.
By:
------------------------------------
Name:
Title:
Attest:
---------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
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, one of the entities described
in and which executed the above instrument; that he/she 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., one of the entities described in and
which executed the above instrument; that he/she 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.
-----------------------------------------
Name:
------------------------------------
Notary Public for the state of
-----------
My Commission Expires:
-------------------