CONSECO EXECUTIVE LIFE
INSURANCE AGREEMENT
THIS AGREEMENT made and entered into effective the 1st day of December, 2000,
by and between Conseco, Inc. ("Employer"), and the Xxxx X. Xxxxx 2000
Irrevocable Insurance Trust dated 11/22/00 ("Owner");
WHEREAS, Xxxx X. Xxxxx ("Employee") is a valued employee of Employer and
Employer wishes to retain him in its employ; and
WHEREAS, as an inducement to Employee=s continued employment, Employer wishes to
assist Employee with his personal life insurance program by entering into the
Conseco Executive Life Insurance Agreement with the Owner.
NOW, THEREFORE, the Employer and Owner agree as follows:
1. Identification of Policy. The policy number of the life insurance policy to
which this Agreement relates ("Policy"), the name of the Company issuing such
Policy ("Insurer"), and the Owner's death benefit payable in the event of the
Employee's death shall be set forth on Exhibit A to this Agreement as determined
by the Employer effective on the date hereof and at such other times as
determined by Employer, in its discretion.
2. Ownership of Policy. Owner or his (or its) transferee shall be the owner of
the Policy, and may exercise all ownership rights granted to the Owner by the
terms of the Policy. Notwithstanding any other provisions of this Agreement or
any form of policy assignment executed by Owner or his (or its) transferee in
connection with this Agreement, it is the express intention of the parties to
reserve to the Owner all rights in and to the Policy granted to the Owner by its
terms, including, but not limited to, the right to assign the Owner=s interest
in the Policy, the right to change the beneficiary of the Policy, the right to
exercise settlement options, the right to borrow against the cash value of the
Policy, and the right to surrender or cancel the Policy, in whole or in part.
Employer shall neither have nor exercise any right in or to the Policy which
could, in any way, endanger, defeat or impair any of the rights of the Owner in
the Policy, including the right to collect the proceeds of the Policy in excess
of the amount due the Employer, as provided in this Agreement. The only rights
in and to the Policy granted to the Employer shall be limited to its security
interest in the "cash surrender value or surrender value" of the Policy, which
for all purposes of this Agreement shall be as defined in the Policy, and a
portion of the death benefit of the Policy, as hereinafter provided. The
Employer shall not assign any of its rights in the Policy to anyone other than
the Owner (or the Owner's transferee, if the Owner has transferred his or its
rights in the Policy).
3. Premium. The Owner shall contribute to the Employer an amount equal to the
annual economic benefit derived by the Owner (as determined by the Employer in
accordance with Revenue Rulings 64-328 and 66-110), or, if less, the premium for
the year. The Owner shall pay the Owner's portion of the premium to the Employer
in a lump sum at the beginning of each Policy year. The Employer shall pay the
remainder of each total premium on the Policy. The total annual premium due on
such Policy, effective December 1 of each year during the term of this
Agreement, shall be determined by the Employer.
4. Collateral Assignment. Contemporaneously with this Agreement, the Owner has
made a collateral assignment of the Policy to the Employer under the form of
Assignment attached as Exhibit B, as it may be amended from time to time to
reflect any modifications to Exhibit A with respect to the Insurer or policy
number, which Assignment gives the Employer the right to recover the premiums it
has paid on the Policy less amounts received under the Agreement from the Owner
("net premium outlay") from the surrender value of the Policy and to recover a
portion of the death benefit of the Policy. The interest of the Employer in and
to the Policy shall be specifically limited to the following rights:
a. The right to recover the lesser of its net premium outlay and the
surrender value of the Policy in the event the Policy is totally
surrendered or canceled by the Owner, or the right to receive the
surrender proceeds to the extent of its net premium outlay in the event
the Policy is partially surrendered by the Owner as provided in paragraph
5;
b. The right to recover its net premium outlay fro the death benefit
proceeds;
c. The right to recover the lesser of its net premium outlay and the
surrender value of the Policy, or to receive ownership of the Policy, in
the event of termination of this Agreement, as provided in paragraphs
6(b), 6(c) and 6(d) below; and
d. The right to recover its net premium outlay to the extent a Policy loan
made by the Owner in any year exceeds the lesser of the Owner=s portion of
the premium for that year and the increase for that year in the surrender
value of the Policy, as provided in paragraph 8.
5. Surrender or Cancellation. The Owner shall have the sol right to surrender or
cancel the Policy, in whole or in part, and to receive his (or its) surrender
value, subject to the provisions of this paragraph 5. In the event of any
partial or complete surrender or cancellation, the Employer shall be provided
with written notice of such surrender or cancellation by the Owner at least
fifteen (15) days prior to a distribution from the Insurer. Subject to paragraph
6, in the event of any partial surrender, the Employer shall
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be entitled to recover the surrender proceeds to the extent of its net premium
outlay. In the event of a complete surrender or cancellation, the Employer shall
be entitled to recover the lesser of its net premium outlay and the surrender
value of the Policy.
6. Termination of Agreement.
a. This Agreement shall terminate upon the date on which either party to the
Agreement provides notice in writing to the other party of the desire to
terminate.
b. Within thirty (30) days following the termination of this Agreement, the
Owner shall pay to the Employer the lesser of the surrender value of the
Policy and Employer=s net premium outlay. Upon receipt by the Employer of
such amount, the Employer shall execute an appropriate instrument of
release of the Assignment of the Policy.
c. If the Owner fails to pay such amount within such thirty (30) day period,
the Owner shall execute any and all instruments that may be required to
vest ownership of the Policy in the Employer. Thereafter, the Owner shall
have no further interest in the Policy.
d. If the Owner fails to surrender the policy as specified in paragraph 6(b)
or to execute the instruments required by paragraph 6(c) within such
thirty (30) day period, the Employer may notify the Insurer that the
Employer intends to exercise its rights under the Assignment. In such
event, the Insurer shall pay to the Employer the amount specified in
paragraph 6(b).
7. Death. Upon the death of Employee, the Employer shall receive the amount
specified in paragraph 4(b). The balance of the death benefit provided under the
Policy, if any, shall be paid directly to the beneficiary of the Policy.
8. Loans. The Owner shall have the sole right to borrow against the Policy, and
the Employer shall have no right to obtain loans against the Policy, directly or
indirectly, from the Insurer or from any other person, or to pledge or assign
the Policy as security for any loan. If the Owner in any Policy year borrows
from the Policy an amount in excess of the Owner=s portion of the annual premium
for that year or the increase in the surrender value of the Policy for the year,
whichever is less, the Employer shall be entitled to receive such excess amount,
to the extent of its net premium outlay under this Agreement. The Owner shall
pay any interest due on any Policy loan it obtains.
9. Transferee. In the event Owner shall transfer all of his (or its)
interest in the Policy, then all of Owner's interest in the Policy and in this
Agreement shall be vested in his (or its)
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transferee, who shall be substituted as a party under this Agreement, and the
transferring Owner shall have no further interest in the Policy or in this
Agreement.
10. Successors and Assigns. This Agreement shall bind Employer, its successors
and assigns, and Employee and Owner and their heirs, executors, administrators
and transferees, and any Policy beneficiary. The Employer agrees that it will
not merge or consolidate with another employer, corporation, or organization, or
permit its business and activities to be taken over by any other organization
unless or until the succeeding or continuing employer, corporation or other
organization shall expressly assume the rights and obligations of the Employer
set forth in this Agreement.
11. Effect on Employment. This Agreement shall not be deeme to constitute a
contract of employment between the parties, nor shall any provision restrict the
right of Employee to terminate his employment, at any time not in contravention
of any applicable employment agreement.
12. Insurer. The Insurer shall be bound only by the provisions of and
endorsements on the Policy, and any payments made or action taken by it in
accordance with the Policy shall fully discharge it from all claims, suits and
demands of all persons whatsoever. Except as specifically provided by
endorsement on the Policy and as provided in the Assignment, the Insurer shall
in no way be bound by the provisions of this Agreement.
13. Payment. It is agreed that benefits may be paid under the Policy by the
Insurer either by separate checks to the parties entitled thereto, or by joint
check. In the latter instance, the Owner and the Employer agree that benefits
shall be divided as provided herein.
14. Amendment. Except as provided in paragraph 6 and in A, this Agreement may
not be canceled, amended, altered or modified, except by a written instrument
signed by all of the parties.
15. Notices. Any notice, consent or demand required or permitted to be given
under the provisions of this Agreement by one party to another shall be in
writing, shall be signed by the party giving or making the same, and may be
given either by delivering the same to such other party personally, or by
mailing the same, by United States certified mail, postage prepaid, to such
party, addressed to his, her or its last known address as shown on the records
of the Employer. The date of such mailing shall be deemed the date of such
mailed notice, consent or demand.
16. Gender and Number. Whenever any words are used herein i the masculine
gender, they shall be construed as though they were also used in the feminine or
neuter gender in all cases where they would so apply, and whenever any words are
used herein in the singular
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or plural form, they shall be construed as though they were also used in the
other form in all cases where they would so apply.
17. Controlling Law. This Agreement, and the rights of the parties hereunder,
shall be governed by and construed pursuant to the laws of the State of Indiana
except to the extent preempted by federal law.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the day
and year first above written.
Owner's Signature:
XXXX X. XXXXX 2000 IRREVOCABLE CONSECO, INC.
INSURANCE TRUST DATED 11/22/00
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------- ----------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Trustee Title Senior Vice President, Chief
Accounting Officer
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Exhibit A
Conseco Executive Life Insurance Agreement
Policy # Insurer Death Benefit
58 934 332 The Manufacturers Life Insurance $15,025,000
Company (U.S.A.)
Exhibit B
COLLATERAL ASSIGNMENT
THIS ASSIGNMENT, made and entered into effective the 1st day of December, 2000,
by the undersigned the Xxxx X. Xxxxx 2000 Irrevocable Insurance Trust dated
11/22/00, as owner ("Owner") of that certain Life Insurance Policy No. 58 934
332 issued by The Manufacturers Life Insurance Company (U.S.A.) ("Insurer") and
any supplementary contracts issued in connection with such policy (said policy
and contracts herein called "Policy"), upon the life of Xxxx X. Xxxxx
("Insured"), to Conseco, Inc., an Indiana corporation, ("Assignee").
WITNESSETH:
WHEREAS, the Insured is a valued employee of the Assignee, and the Assignee
wishes to retain him in its employ;
WHEREAS, as an inducement to the Insured's continued employment, the Assignee
desires to assist the Insured with his personal life insurance program by
contributing a portion of the annual premium due on the Policy, as more
specifically provided for in that certain Conseco Executive Life Insurance
Agreement entered into between the Insured and the Assignee ("Agreement"); and
WHEREAS, in consideration of the Assignee's agreeing to pay a portion of the
premiums pursuant to the Agreement, the Owner agrees to assign to the Assignee
certain rights in the Policy as set forth in this Assignment.
NOW, THEREFORE, for value received, the undersigned Owner hereby assigns,
transfers and sets over to the Assignee, its successors and Assigns, the
following specific rights in the Policy subject to the following terms and
conditions:
1. Assigned Rights. The Assignee's interest in the Policy shall be limited to:
a. In the event the Policy is surrendered or cancelled by the Owner, the
right to recover the lesser of (i) the total premiums it has paid on the
Policy less amounts received under the Agreement from the Owner ("net
premium outlay") and (ii) the "cash surrender value or surrender value" of
the Policy (as defined in the Policy for all purposes hereinafter), or, in
the event the Policy is partially surrendered or cancelled by the Owner,
the right to receive the surrender proceeds to the extent of its net
premium outlay, as provided in paragraph 5 of the Agreement.
b. The right to recover the death benefit proceeds as provided in Paragraph 7
of the Agreement.
c. The right to recover the lesser of (i) its net premium outlay and (ii) the
surrender value of the Policy or to receive ownership of the Policy, in
the event of termination of the Agreement, as provided in paragraphs 6(b),
6(c) and 6(d) of the Agreement.
d. The right to recover its net premium outlay to the extent a policy loan
made by the Owner in any year exceeds the lesser of the Owner's portion of
the premium for that year and the increase for that year in the surrender
value of the Policy, as provided in Paragraph 8 of the Agreement.
2. Incidents of Ownership. The Owner shall retain all incidents of ownership in
the Policy, including, but not limited to, the sole and exclusive rights to:
borrow against the Policy; assign the Owner's interest in the Policy; change the
beneficiary of the Policy; exercise settlement options; and, subject to
paragraphs 5 and 6 of the Agreement, surrender or cancel the Policy (in whole or
in part).
3. Endorsement of Policy. If the Assignee shall have possession of the Policy at
any time while this Assignment is in force, then upon request and without
unreasonable delay, the Assignee shall forward the Policy to the Insurer for
endorsement of any designation or change of beneficiary, any election of
optional mode of settlement, or the exercise of any other right reserved by the
Owner hereunder.
4. Insurer.
a. The Insurer is hereby authorized to recognize the Assignee's claims to
rights under this Agreement without investigating the reason for any
action taken by the Assignee, the amount of its net premium outlay, the
existence of any default, the giving of any required notice or the
application to be made by the Assignee of any amounts to be paid to the
Assignee. The signature of the Assignee shall be sufficient for the
exercise of any of its rights under the Assignment for the Assignee's
receipt for any sums received by it and shall be a full discharge and
release of such sums to the Insurer.
b. The Insurer shall be fully protected in recognizing a request made by the
Owner for surrender or cancellation of the Policy, in whole or in part, or
in recognizing a request made by the Owner for any loans against the
Policy permitted by the terms of the Policy, with or without the consent
of the Assignee. In the event of any such request, the Insurer may pay the
proceeds of such surrender, cancellation, or loans to the sole order of
the Owner, or as the Owner shall direct, provided that the Owner has
provided the requisite fifteen (15) days' notice to the Assignee required
by paragraph 5 of the Agreement.
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5. Release. Upon the full payment of the liabilities of the Owner to the
Assignee pursuant to the Agreement, the Assignee shall execute an appropriate
instrument of release of this Collateral Assignment.
IN WITNESS WHEREOF, the undersigned Owner has executed this Assignment
effective the day and year first above written.
Owner's Signature:
XXXX X. XXXXX 2000 IRREVOCABLE
INSURANCE TRUST DATED 11/22/00
By:
------------------------------ --------------------------
Xxxxxx X. Xxxxxxx, Trustee Witness
Recorded and Filed at the Office of The Manufacturers Life Insurance Company
(U.S.A.)
The Company assumes no obligation as to the v alidity and sufficiency
of this agreement, and does not pass upon its legality.
on
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COLLATERAL ASSIGNMENT
THIS ASSIGNMENT, made and entered into effective the 1st day of December, 2000,
by the undersigned the Xxxx X. Xxxxx 2000 Irrevocable Insurance Trust dated
11/22/00, as owner ("Owner") of that certain Life Insurance Policy No. 58 934
332 issued by The Manufacturers Life Insurance Company (U.S.A.) ("Insurer") and
any supplementary contracts issued in connection with such policy (said policy
and contracts herein called "Policy"), upon the life of Xxxx X. Xxxxx
("Insured"), to Conseco, Inc., an Indiana corporation, ("Assignee").
WITNESSETH:
WHEREAS, the Insured is a valued employee of the Assignee, and the Assignee
wishes to retain him in its employ;
WHEREAS, as an inducement to the Insured's continued employment, the Assignee
desires to assist the Insured with his personal life insurance program by
contributing a portion of the annual premium due on the Policy, as more
specifically provided for in that certain Conseco Executive Life Insurance
Agreement entered into between the Insured and the Assignee ("Agreement"); and
WHEREAS, in consideration of the Assignee's agreeing to pay a portion of the
premiums pursuant to the Agreement, the Owner agrees to assign to the Assignee
certain rights in the Policy as set forth in this Assignment.
NOW, THEREFORE, for value received, the undersigned Owner hereby assigns,
transfers and sets over to the Assignee, its successors and Assigns, the
following specific rights in the Policy subject to the following terms and
conditions:
1. Assigned Rights. The Assignee's interest in the Policy shall be limited to:
a. In the event the Policy is surrendered or canceled by the Owner, the right
to recover the lesser of (i) the total premiums it has paid on the Policy
less amounts received under the Agreement from the Owner ("net premium
outlay") and (ii) the "cash surrender value or surrender value" of the
Policy (as defined in the Policy for all purposes hereinafter), or, in the
event the Policy is partially surrendered or canceled by the Owner, the
right to receive the surrender proceeds to the extent of its net premium
outlay, as provided in paragraph 5 of the Agreement.
b. The right to recover the death benefit proceeds as provided in Paragraph 7
of the Agreement.
c. The right to recover the lesser of (i) its net premium outlay and (ii) the
surrender value of the Policy or to receive ownership of the Policy, in
the event of termination of the Agreement, as provided in paragraphs 6(b),
6(c) and 6(d) of the Agreement.
d. The right to recover its net premium outlay to the extent a policy loan
made by the Owner in any year exceeds the lesser of the Owner's portion of
the premium for that year and the increase for that year in the surrender
value of the Policy, as provided in Paragraph 8 of the Agreement.
2. Incidents of Ownership. The Owner shall retain all incidents of ownership in
the Policy, including, but not limited to, the sole and exclusive rights to:
borrow against the Policy; assign the Owner's interest in the Policy; change
the beneficiary of the Policy; exercise settlement options; and, subject to
paragraphs 5 and 6 of the Agreement, surrender or cancel the Policy (in whole
or in part).
3. Endorsement of Policy. If the Assignee shall have possession of the Policy at
any time while this Assignment is in force, then upon request and without
unreasonable delay, the Assignee shall forward the Policy to the Insurer for
endorsement of any designation or change of beneficiary, any election of
optional mode of settlement, or the exercise of any other right reserved by
the Owner hereunder.
4. Insurer.
a. The Insurer is hereby authorized to recognize the Assignee's claims to
rights under this Agreement without investigating the reason for any
action taken by the Assignee, the amount of its net premium outlay, the
existence of any default, the giving of any required notice or the
application to be made by the Assignee of any amounts to be paid to the
Assignee. The signature of the Assignee shall be sufficient for the
exercise of any of its rights under the Assignment for the Assignee's
receipt for any sums received by it and shall be a full discharge and
release of such sums to the Insurer.
b. The Insurer shall be fully protected in recognizing a request made by the
Owner for surrender or cancellation of the Policy, in whole or in part, or
in recognizing a request made by the Owner for any loans against the
Policy permitted by the terms of the Policy, with or without the consent
of the Assignee. In the event of any such request, the Insurer may pay the
proceeds of such surrender, cancellation, or loans to the sole order of
the Owner, or as the Owner shall direct, provided that the Owner has
provided the requisite fifteen (15) days' notice to the Assignee required
by paragraph 5 of the Agreement.
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5. Release. Upon the full payment of the liabilities of the Owner to the
Assignee pursuant to the Agreement, the Assignee shall execute an appropriate
instrument of release of this Collateral Assignment.
IN WITNESS WHEREOF, the undersigned Owner has executed this Assignment
effective the day and year first above written.
Owner's Signature:
XXXX X. XXXXX 2000 IRREVOCABLE
INSURANCE TRUST DATED 11/22/00
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxx Xxxxx Xxxxxxx
------------------------- ------------------------------
Xxxxxx X. Xxxxxxx, Witness
Trustee
Recorded and Filed at the Office of The Manufacturers Life Insurance Company
(U.S.A.)
The Company assumes no obligation as to the validity and sufficiency
of this agreement, and does not pass upon its legality.
on
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