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EXHIBIT 4.22
FORM OF
, dated as of December ____, 1997 (the
"") by and between Conseco, Inc., an Indiana corporation
("Conseco" or the "Company"), Conseco Financing Trust IV, a Delaware statutory
business trust (the "Trust"), The First National Bank of Chicago, a national
banking association, not individually but solely as Purchase Contract Agent and
as attorney-in-fact of the holders of Purchase Contracts (each as defined in
the Purchase Contract Agreement (as defined herein)), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated Amount
$____ of its FELINE PRIDES (the "FELINE PRIDES") under the Purchase Contract
Agreement, dated as of December ___, 1997, by and between the Purchase Contract
Agent and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Trust will issue concurrently in connection with
the issuance of the FELINE PRIDES ____% Trust Originated Preferred Securities
(the "Preferred Securities") in an aggregate stated liquidation amount of
$____, under the Amended and Restated Declaration of Trust, dated as of
December __, 1997, by and among the Company, the Regular Trustees, the Delaware
Trustee and the Institutional Trustee (the "Declaration"); and
WHEREAS, each FELINE PRIDES will initially consist of a unit
(referred to as an "Income PRIDES") with a Stated Amount of $50 comprised of
(a) a Purchase Contract under which (i) the holder is required to purchase from
the Company, for an amount in cash equal to the Stated Amount, newly issued
Common Stock of the Company on the Purchase Contract Settlement Date, and (ii)
the Company will pay Contract Adjustment Payments, if any, and (b) beneficial
ownership in one Preferred Security; and
WHEREAS, the sole assets of the Trust, $____ aggregate
principal amount of ____% Junior Subordinated Debentures (the "Debentures") of
the Company will be purchased by the Trust from the Company with the proceeds
of the sale of the Preferred Securities and the proceeds of the sale of the
common securities of the Trust (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities"); and
WHEREAS, the Preferred Securities (or upon a dissolution of
the Trust and the distribution of the Debentures as described in the
Declaration, such Debentures) will be pledged pursuant to the Pledge Agreement
(the "Pledge Agreement"), dated as of December ____, 1997, by and between the
Company, the Collateral Agent and the Purchase Contract Agent, to secure an
Income PRIDES holder's obligations under the related Purchase Contract on the
Purchase Contract Settlement Date; and
WHEREAS, the Preferred Securities or the Debentures, as the
case may be, of such Income PRIDES holders who have elected not to settle the
Purchase Contracts related to their Income PRIDES from the proceeds of a Cash
Settlement and who have not early settled their
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Purchase Contracts, will be remarketed by the Remarketing Agent on the third
Business Day immediately preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable distribution rate on the Preferred
Securities (and, thus, the interest rate on the Debentures) that remain
outstanding on and after the Purchase Contract Settlement Date will be reset on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, to the Reset Rate to be determined by the Reset Agent as the rate that
such Preferred Securities (and, thus the Debentures) should bear in order to
have an approximate market value of 100.5% of the aggregate stated liquidation
amount of the Preferred Securities or the aggregate principal amount of the
Debentures on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset
Rate, the Company may limit the Reset Spread (a component of the Reset Rate) to
be no higher than 200 basis points (2%); and
WHEREAS, the Company has requested ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") to act as
the Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and
conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions herein set forth, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not
defined in this Agreement shall have the meanings assigned to them in the
Purchase Contract Agreement or, if not therein stated, the Declaration or the
Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
The Company hereby appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby accepts such
appointment, (i) as the Reset Agent to determine in consultation with the
Company, in the manner provided for in the Declaration with respect to the
Trust Securities and the Indenture with respect to the Debentures, the Reset
Rate, that in the opinion of the Reset Agent, will, when applied to the Trust
Securities (and, thus, the Debentures), enable a Trust Security (and, thus, a
Debenture), to have an approximate market value of no less than 100.5% of the
aggregate stated liquidation amount in the case of such Trust Security and the
aggregate principal amount in the case of such Debenture, and (ii) as the
exclusive Remarketing Agent to remarket the Preferred Securities, provided that
the Company may limit such Reset Rate to be no higher than the rate on the
Two-Year Benchmark Treasury plus 200 basis points (2%), as the case may be, of
such Income PRIDES holders who have not early settled the related Purchase
Contracts and have failed to notify the Purchase Contract Agent, on or prior to
the fifth Business Day immediately preceding the Purchase Contract Settlement
Date, of their intention to settle the related Purchase Contracts through Cash
Settlement, for settlement on the Purchase Contract Settlement Date, pursuant
to the Remarketing Underwriting Agreement with the Company, the Trust, the
Purchase Contract Agent and/or the Collateral Agent, substantially in the form
attached hereto as Exhibit A (with such changes as the Company, the Purchase
Contract Agent and/or the Collateral Agent and the Remarketing Agent may agree
upon). Pursuant to the Remarketing Underwriting Agreement, the Remarketing
Agent, either as the sole remarketing
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underwriter or as the representative of a syndicate including the Remarketing
Agent and one or more other remarketing underwriters designated by the
Remarketing Agent, will agree, subject to the terms and conditions set forth
therein, that the Remarketing Agent and any such other remarketing underwriters
will purchase severally the Preferred Securities or the Debentures, as the case
may be, to be sold by the holder or holders of Income PRIDES on the third
Business Day immediately preceding the Purchase Contract Settlement Date and
use their reasonable efforts to remarket such Preferred Securities or the
Debentures, as the case may be, (such purchase and remarketing being
hereinafter referred to as the "Remarketing"), at a price not less than 100.5%
of such Preferred Securities aggregate stated liquidation amount plus any
accrued and unpaid distributions (including any deferred distributions) and in
the case of Debentures, at a price not less than 100.5% of such Debentures
aggregate principal amount plus any accrued and unpaid interests (including any
deferred interests). Notwithstanding the preceding sentence, the Remarketing
Agent shall not remarket any Preferred Securities or Debentures, as the case
may be, for a price less than 100% of the aggregate stated liquidation amount
or aggregate principal amount of such Preferred Securities or Debentures,
respectively, plus accumulated and unpaid distributions or accrued and unpaid
interest, as the case may be. The proceeds of such remarketing shall be paid
to Collateral Agent in accordance with Section 4.6 of the Pledge Agreement and
Section 5.4 of the Purchase Contract Agreement (each of which Sections are
incorporated herein by reference).
Section 3. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as Remarketing Fee an amount not exceeding 25
basis points (.25%), from any amount received in connection with such
Remarketing in excess of the aggregate stated liquidation amount or aggregate
principal amount of such remarketed Preferred Securities or Debentures, as the
case may be. In addition, the Reset Agent shall receive from the Company a
reasonable and customary fee as the Reset Agent Fee (the "Reset Agent Fee");
provided, however, that if the Remarketing Agent shall also act as the Reset
Agent, then the Reset Agent shall not be entitled to receive any such Reset
Agent Fee. Payment of such Reset Agent Fee shall be made by the Company on
the third Business Day immediately preceding the Purchase Contract Settlement
Date in immediately available funds or, upon the instructions of the Reset
Agent by certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the
Remarketing Agent and/or as the Reset Agent in its capacity hereunder by giving
notice prior to 3:00 p.m., New York City time, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any such
replacement shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder
by the Remarketing Agent and/or the Reset Agent. Upon providing such notice,
the Company shall use all reasonable efforts to appoint such a successor and to
enter into a with such successor as soon as reasonably
practicable.
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent and/or as
the Reset Agent by giving notice prior to 3:00 p.m., New York City time, on the
eleventh Business Day immediately prior to the Purchase Contract Settlement
Date. Any such resignation shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and/or the Reset Agent. Upon
receiving notice from the Remarketing Agent
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and/or the Reset Agent that it wishes to resign hereunder, the Company shall
appoint such a successor and enter into a with it as soon
as reasonably practicable.
Section 5. Dealing in the Securities. The Remarketing
Agent, when acting hereunder or under the Remarketing Underwriting Agreement or
acting in its individual or any other capacity, may, to the extent permitted by
law, buy, sell, hold or deal in any of the Preferred Securities or Debentures,
as the case may be. With respect to any Preferred Securities or Debentures, as
the case may be, owned by it, the Remarketing Agent may exercise any vote or
join in any action with like effect as if it did not act in any capacity
hereunder. The Remarketing Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
Section 6. Registration Statement and Prospectus. In
connection with the Remarketing, if and to the extent required (in the opinion
of counsel for either the Remarketing Agent or the Company) by applicable law,
regula- tions or interpretations in effect at the time of such Remarketing, the
Company shall use its reasonable efforts to have a registration statement
relating the Preferred Securities effective under the Securities Act of 1933 by
the third Business Day immediately preceding the Purchase Contract Settlement
Date, shall furnish a current prospectus to be used in such Remarketing by the
remarketing underwriter or underwriters under the Remarketing Underwriting
Agreement, and shall pay all expenses relating thereto.
Section 7. Conditions to the Remarketing Agent's
Obligations. (a) The obligations of the Remarketing Agent and any other
remarketing underwriters to purchase and remarket the Preferred Securities or
the Debentures, as the case may be, shall be subject to the terms and
conditions of the Remarketing Underwriting Agreement.
(b) If at any time during the term of this Agreement, any
Indenture Event of Default or Declaration Event of Default, or event that with
the passage of time or the giving of notice or both would become an Indenture
Event of Default or Declaration Event of Default, has occurred and is
continuing under the Indenture or the Declaration, then the obligations and
duties of the Remarketing Agent under this Agreement shall be suspended until
such default or event has been cured. The Company will cause the Indenture
Trustee and the Institutional Trustee to give the Remarketing Agent notice of
all such defaults and events of which the Trustee is aware.
Section 8. Termination of . This
Agreement shall terminate as to the Remarketing Agent on the effective date of
its replacement pursuant to Section 4(a) hereof or its resignation pursuant to
Section 4(b) hereof. Notwithstanding any such termination, the obligations set
forth in Section 3 hereof shall survive and remain in full force and effect
until all amounts payable under said Section 3 shall have been paid in full.
Section 9. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent hereunder shall be
determined solely by the express provisions of this Agreement and the
Remarketing Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
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Section 11. Term of Agreement. Unless otherwise terminated
in accordance with the provisions hereof and except as otherwise provided
herein, this Agreement shall remain in full force and effect from the date
hereof until the first day thereafter on which no Preferred Securities are
outstanding.
Section 12. Successors and Assigns. The rights and
obligations of the Company hereunder may not be assigned or delegated to any
other person without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the
Remarketing Agent and/or as the Reset Agent. The rights and obligations of
▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Remarketing Agent and/or as the Reset Agent hereunder may
not be assigned or delegated to any other person without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Remarketing Agent and/or as
the Reset Agent and their respective successors and assigns. The terms
"successors" and "assigns" shall not include any purchaser of Securities merely
because of such purchase.
Section 13. Headings. Section headings have been inserted in
this Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be
used in the interpretation of any provision of this Agreement.
Section 14. Severability. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
Section 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. Amendments. This Agreement may be amended by any
instrument in writing signed by the parties hereto.
Section 17. Notices. Unless otherwise specified, any
notices, requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed
in writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid. All such notices, requests, consents or other communications
shall be addressed as follows: if to the Company, to Conseco, Inc., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.,
Executive Vice President, Secretary and General Counsel; if to the Remarketing
Agent or Reset Agent (if ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. is the Remarketing Agent or the
Reset Agent), to c/o Merrill ▇▇▇▇▇ & Co. at ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters,
World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Director, with a copy to Skadden, Arps, Slate ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇;
if to the
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Collateral Agent, to Global Trust Service, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇, Senior Trust Officer
and Account Manager; and if to the Purchase Contract Agent, to Global Corporate
Trust Service, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
to such other address as any of the above shall specify to the other in
writing.
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IN WITNESS WHEREOF, each of the Company and the Remarketing
Agent has caused this Agreement to be executed in its name and on its behalf by
one of its duly authorized officers as of the date first above written.
CONSECO, INC.
By:
-------------------------------
Name:
Title:
CONSECO FINANCING TRUST IV
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
CONFIRMED AND ACCEPTED:
By:
-------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO
By:
-------------------------------
Name:
Title:
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Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇, Pierce, Fenner, & ▇▇▇▇▇
Incorporated (the "Remarketing Underwriter") hereby agrees to purchase the
securities (the "Securities") as set forth in Schedule I hereto, that have been
tendered by the holders of the Income PRIDES for sale on February ____, 2001.
1. Definitions. Capitalized terms used and not defined in
this Agreement shall have the meanings assigned to them in the purchase
contract agreement (the "Purchase Contract Agreement"), the pledge agreement
(the "Pledge Agreement"), the underwriting agreement (the Underwriting
Agreement"), the amended and restated declaration of trust (the "Declaration")
and the indenture (the "Indenture"), each as identified in Schedule I hereto.
2. Registration Statement and Prospectus. If required (in the
opinion of counsel to either the Remarketing Underwriter or the Company) by
applicable law, the Company and the Trust have filed with the Securities and
Exchange Commission, and there has become effective, a registration statement
on Form S-3 (the file number of which is set forth in Schedule I hereto),
including a prospectus, relating to the Securities. Such registration
statement, as amended to the date of this Agreement, is hereinafter referred to
as the "Registration Statement", the prospectus included in the Registration
Statement is hereinafter referred to as the "Basic Prospectus" and the Basic
Prospectus, as amended or supplemented to the date of this Agreement to relate
to the Securities and to the remarketing of the Securities, is hereinafter
referred to as the "Final Prospectus" (including in each case all documents
incorporated by reference).
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the following
sections of the Underwriting Agreement shall be incorporated in their entirety
into this Agreement and made applicable to the obligations of the Remarketing
Underwriter, except as explicitly amended hereby: ▇▇▇▇▇▇▇▇ ▇, ▇, ▇, ▇, ▇ ▇▇▇
▇.
(▇) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all references
therein to the "Underwriter" or "Underwriters" or the "Representative" or
"Representatives", as the case may be, shall be deemed to refer to the
Remarketing Underwriter; (ii) all references therein to the "Securities" which
are the subject thereof shall be deemed to refer to the Securities as defined
herein; (iii) all references therein to the "Closing Date" shall be deemed to
refer to the Remarketing Closing Date specified in Schedule I hereto (the
"Remarketing Closing Date"); (iv) all references therein to the "Registration
Statement" the "Basic Prospectus" and the "Final Prospectus" shall be deemed to
refer to the Registration Statement, the Basic Prospectus and the Final
Prospectus, respectively, as defined herein; (v) reference to the Company in
Section 3(i) thereof is stricken and replaced with the phrase "the registered
holder"; (vi) reference to "Income Prides" and "Shares" in Section 3(m) thereof
is stricken and replaced with either the words "Preferred Securities" or
"Debentures", as applicable; (vii) Sections 3(k), 3(n), 3(p) and 3(q)
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thereof are stricken in their entirety; (viii) Sections 5(b)(1)(xiii) and
5(b)(2) (iv), (v), (vi), (vii) and (xi) thereof are stricken in their entirety;
(ix) Sections 5(b)(5) and 5(b)(8) are stricken in their entirety; and (xi)
Section 5(j) thereof is stricken in its entirety.
4. Purchase and Sale; Remarketing [Underwriting] Fee. Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth or incorporated herein, the Remarketing Underwriter
agrees to purchase from the [registered holder or holders thereof] in the
manner specified in Section 5 hereof, the principal amount of Securities set
forth [in Schedule I] hereto at a purchase price not less than 100% of such
Securities, aggregate stated liquidation amount or aggregate principal amount,
as the case may be, plus any accrued and unpaid distributions or interest, as
applicable, thereon. In connection therewith, the [registered holder or
holders thereof] agree, in the manner specified in Section 5 hereof, to pay to
the Remarketing Underwriter a Remarketing [underwriting] Fee equal to an amount
not exceeding 25 basis points (.25%), from any amount received in connection
from such Remarketing in excess of the aggregate stated liquidation amount or
aggregate principal amount, as the case may be, of the Securities.
5. Delivery and Payment. Delivery of payment for the
remarketed Securities and payment of the Remarketing [Underwriting] Fee shall
be made on the Remarketing Closing Date at the location and time specified in
Schedule I hereto (or such later date not later than five business days after
such date as the Remarketing representatives shall designate), which date and
time may be postponed by agreement between the Remarketing Underwriter, the
Company, the Trust and the [registered holder or holders thereof]. Delivery of
the remarketed Securities and payment of the Remarketing [Underwriting] Fee
shall be made to the Remarketing Underwriter [to or upon the order of the
[registered holder or holders of the Remarketed Securities] by certified or
official bank check or checks drawn on or by a New York Clearing House bank and
payable in immediately available funds] [in immediately available funds by wire
transfer to an account or accounts designated by the [Company] [Trustee]
[registered holder or holders of the remarketed Securities]] or, if the
remarketed Securities are represented by a Global Security, by any method of
transfer agreed upon by the Remarketing Underwriter and the Depositary for the
Securities under the Declaration or Indenture, as applicable.
[It is understood that any registered holder or, if the Securities are
represented by a Global Security, any beneficial owner, that has an account at
the Remarketing Underwriter and tenders its Securities through such account
will not be required to pay any fee or commission to the Remarketing
Underwriter.]
If the Securities are not represented by a Global Security,
certificates for the Securities shall be registered in such names and
denominations as the Remarking Representatives may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company,
the Trust and the [registered holder or holders thereof] agree to have such
certificates available for inspection, packaging and checking by the
Remarketing Underwriter in New York, New York not later than 1:00 p.m. on the
Business Day prior to the Remarketing Closing Date.
6. Additional Conditions to the Remarketing Underwriters'
Obligations. This Agreement shall be subject to termination in the absolute
discretion of the Remarketing Underwriter, by notice given to the Company, the
Trust and the [registered holder or holders thereof] prior to delivery of and
payment for the Securities, if following the date hereof and prior to such time
there
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shall have occurred a material adverse change in the condition, financial or
otherwise, or in the earnings, affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, or (ii) there shall have
occurred any decrease in the rating assigned to the Securities or any
securities of the Company or the financial condition or claims paying ability
of the Company by any "nationally recognized statistical rating organization,"
as defined for purposes of Rule 436(g)(2) under the 1933 Act Regulation, and
(iii) no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any securities of the
Company or the financial condition of the Company.
7. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed
in writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid. All such notices, requests, consents or other communications
shall be addressed as follows: if to the Company, to Conseco, Inc., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.,
Executive Vice President, Secretary and General Counsel; if to the Remarketing
Agent or Reset Agent, to c/o Merrill ▇▇▇▇▇ & Co. at ▇▇▇▇▇▇▇ ▇▇▇▇▇ World
Headquarters, World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Director, with a copy to Skadden, Arps,
Slate ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇; if to the Collateral Agent, to Global Trust Service,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇ ▇'▇▇▇▇▇, Senior Trust Officer and Account Manager; and if to the Purchase
Contract Agent, to Global Corporate Trust Service, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other address as any of the above
shall specify to the other in writing.
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11
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Remarketing Underwriters.
Very truly yours,
CONSECO, INC.
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
--------------------------------
Authorized Signatory
THE CHASE MANHATTAN BANK
By:
--------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By :
--------------------------------
Name:
Title:
A-4
12
SCHEDULE I
Purchase Contract Agreement, dated as of
December ____, 1997 by and between Conseco, Inc., an Indiana corporation, and
The First National Bank of Chicago, a national banking association
Pledge Agreement dated as of December ____, 1997
by and between Conseco, Inc., an Indiana corporation, The First National Bank
of Chicago, a national banking association, and The Chase Manhattan Bank, a
New York banking corporation
Amended and Restated Declaration of Trust dated as
of December ____, 1997 of Conseco Financing Trust IV, a Delaware business
trust
Subordinated Indenture dated as of December ____,
1997 by and between Conseco, Inc., an Indiana corporation, and The First
National Bank of Chicago, a national banking association
First Supplemental Indenture, dated as of December ____,
1997 by and between Conseco, Inc., an Indiana corporation, and The First
National Bank of Chicago, a national banking association
Registration Statement No. 333-40423
Title of Securities: ______% Trust Originated Preferred
Securities of Conseco Financing Trust IV
Principal Amount of Securities: $
Remarketing [Underwriting] Fee: % ($ )
Remarketing Closing Date, Time and Location:
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