exhibit.htm


    Exhibit 4.2

      


      


      


      


      


      


      


      FIRST
SUPPLEMENTAL INDENTURE

      


      


      dated as
of February 3, 2010

      


      among

      


      CONSECO,
INC.,

      Issuer

      


      and

      


      THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A.,

      Trustee

      


      


      7.0%
Convertible Senior Debentures Due 2016

      



      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      THIS FIRST SUPPLEMENTAL INDENTURE
(this “First Supplemental
Indenture”), entered into as of February 3, 2010, between Conseco, Inc.,
a corporation incorporated under the laws of Delaware (the “Company”), and The Bank of New
York Mellon Trust Company, N.A., a national banking association, as trustee (the
“Trustee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture (as defined below).

      


      


      RECITALS

       

      WHEREAS,
the Company and the Trustee entered into the Indenture, dated as of October 16,
2009 (the “Indenture”),
relating to the Company’s 7.0% Convertible Senior Debentures Due 2016 (the
“Debentures”);

       

      WHEREAS,
Section 8.01(i) of the Indenture provides that the Company, when authorized by a
resolution of its Board of Directors, and the Trustee, upon receipt of a Company
Order, may enter into an indenture supplemental to the Indenture to make any
change that benefits the Holders without the consent of any Holder;

       

      WHEREAS,
the Company desires to enter into this First Supplemental Indenture in order to
amend certain provisions of the Indenture; and

       

      WHEREAS,
all requirements necessary to make this First Supplemental Indenture a valid and
binding instrument in accordance with its terms have been duly performed and
complied with, and the execution and delivery of this First Supplemental
Indenture have been duly authorized in all respects and the Company has
delivered to the Trustee a Company Order (accompanied by a Board Resolution), an
Officers’ Certificate and Opinion of Counsel as required by Article 8 of the
Indenture.

       

      AGREEMENT

       

      NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and intending to be legally bound, the parties to this First
Supplemental Indenture hereby agree as follows:

       

      Section
1. The second paragraph under the caption “Recitals of the Company” in the
Indenture shall be deleted in its entirety and replaced with the
following:

       

      “WHEREAS, the aggregate principal
amount of Debentures to be issued by

      the
Company will be equal to the sum of (a) the aggregate principal amount of the
Company’s 3.50% Convertible Debentures due September 30, 2035 (the “Existing
Debentures”) purchased by the Company in the issuer tender offer it
commenced on October 15, 2009 and any subsequent issuer tender offer for the
Existing Debentures that expires before October 5, 2010 (each, a “Tender
Offer” and the Business Day following the date on which the Tender Offer
expires, a “Tender
Offer Closing Date”), (b) the aggregate principal
amount of Existing Debentures repurchased by the
Company in privately negotiated transactions from time to time that settle
before October 5, 2010 (the Business Day on which each such repurchase settles,
a “Repurchase
Closing Date”), (c) the
aggregate principal amount of Existing Debentures that the Issuer is required by
holders thereof to repurchase on September 30, 2010 (such date, the “Put
Right Closing Date”) pursuant to the terms of the Existing Debentures and
(d) the aggregate principal amount of Existing Debentures redeemed by the
Company on October 5, 2010 (such date, the “Redemption
Closing Date” and 


      
        
           


        

        
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      collectively with the
Tender Offer Closing Date(s), the Repurchase Closing Date(s) and the Put
Right Closing Date, the “Closing Dates” and
individually, a “Closing
Date”) pursuant to the terms of the Existing Debentures;
and”

      


      Section
2. The term “Repurchase Closing Date” shall be inserted as a defined term in
Section 1.01 immediately after the defined term “Reorganization Event” as
follows:

      

        “Repurchase
Closing Date” has the meaning ascribed to it in the second paragraph under the
caption “Recitals of the Company.”

         

      

      Section
3.  Capitalized terms used herein and not otherwise defined herein are
used as defined in the Indenture.

       

      Section
4.  The Trustee affirms its acceptance of the trusts created by the
Indenture, as supplemented by this First Supplemental Indenture, and agrees to
perform the same upon the terms and conditions of the Indenture, as supplemented
by this First Supplemental Indenture.

       

      Section
5.  THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS ENTERED INTO AND TO BE PERFORMED THEREIN.

       

      Section
6.  This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.

       

      Section
7.  This First Supplemental Indenture is an amendment
supplemental to the Indenture and the Indenture and this First Supplemental
Indenture will henceforth be read together.

       

      Section
8.  The Indenture, as amended and supplemented by this First
Supplemental Indenture, is in all respects confirmed and preserved.

       

      Section
9.  Notwithstanding anything contained herein, nothing in this First
Supplemental Indenture shall relieve the Company or the Trustee of any of their
obligations under the Indenture, as amended and supplemented by this First
Supplemental Indenture, and the Debentures.

       

      


       

      


       

      


       

      


      [Signature
Page Follows]

       


      
        
           


        

        
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      IN WITNESS WHEREOF, the parties hereto
have caused this First Supplemental Indenture to be duly executed as of the date
first above written.

       

      
        	
                CONSECO,
      INC.

              
	
                By:

              	
                     /s/
      Karl W. Kindig

              
	 
      	
                Name:

              	
                Karl
      W. Kindig

              
	 
      	
                Title:

              	
                Secretary

              


      

      


      


      


      
        	
                THE
      BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

              
	
                By:

              	
                     /s/
      Linda E. Garcia

              
	 
      	
                Name:

              	
                Linda
      E. Garcia

              
	 
      	
                Title:

              	
                Vice
      President

              


      

      


      


       


      
        
           


        

        
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