EXHIBIT 4.4
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation (the "Depository"), to the
Company or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of the Depository (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
CNA FINANCIAL CORPORATION
5.85% NOTE DUE DECEMBER 15, 2014
CUSIP 126117 AL 4
No. 001 US$549,000,000
CNA FINANCIAL CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assignees, the
principal sum of Five Hundred Forty-Nine Million Dollars ($549,000,000) on
December 15, 2014, and to pay interest thereon from and including December 15,
2004, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 15 and December 15 of each
year, commencing June 15, 2005, at the rate of 5.85% per annum, until the
principal hereof becomes due and payable, and at such rate on any overdue
principal and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest. 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) is registered at the close of business
on the Regular Record Date for such interest payment, which shall be the June 1
or December 1 (whether or not a Business Day), as the case may be, prior to the
applicable Interest Payment Date. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holder
on such Regular Record Date by virtue of his having been such Holder, and may
either 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 for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series 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 premium, if any) and interest on this
Security will be in immediately available funds, 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.
Unless the certificate of authentication herein has been duly executed by
the Trustee referred to herein by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued or to be issued in one or more series under
an indenture, dated as of March 1, 1991, as amended and supplemented by a first
supplemental indenture, dated as of October 15, 1993, and a second supplemental
indenture, dated as of December 15, 2004 (collectively, the "Indenture"),
between the Company and J. P. Morgan Trust Company, National Association
(formerly known as The First National Bank of Chicago), a national banking
association, as trustee (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 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. This Security is one
of the series designated "5.85% Notes due December 15, 2014", and is limited,
subject to the provisions of the Indenture,
initially in aggregate principal amount to $549,000,000. The Company may, from
time to time, without the consent of the Holders of the Securities of this
series, reopen this series and issue additional Securities.
The Securities of this series will be redeemable, in whole or in part, at
the Company's option at any time, at a redemption price (the "Redemption Price")
equal to the greater of (i) 100% of the principal amount of the Securities of
this series and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities of this series (exclusive
of interest accrued to the date of redemption (the "Redemption Date"))
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points,
plus in each case accrued interest thereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity or interpolated (on a
day count basis) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security or
securities selected by an Independent Investment Banker as having an actual or
interpolated maturity comparable to the remaining term of the Securities of this
series to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of a comparable maturity to the remaining term of such
Securities.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(A) the average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New York
time on the third business day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, Lehman Brothers Inc. and
UBS Securities LLC, or their affiliates which are primary U.S. Government
securities dealers, and their respective successors; provided, however, that if
any of the foregoing or their affiliates shall cease to be a primary U.S.
Government securities dealer in The City of New York (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities of this series
to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date interest will cease to accrue on the Securities of
this series or portions thereof called for redemption.
If an Event of Default with respect to the Securities of this series shall
have occurred and be continuing, the principal of all the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
In addition to the covenants contained in the Indenture, the Company
hereby covenants and agrees that it will not, and will not permit any Subsidiary
to, create, assume, incur or permit to exist any indebtedness for
borrowed money (including any guarantee of indebtedness for borrowed money) that
is secured by a pledge, lien or other encumbrance on:
(a) the voting securities of Continental Casualty Company, The
Continental Insurance Company, Continental Assurance Company
or CNA Surety Corporation, or any Subsidiary succeeding to any
substantial part of the business now conducted by any of those
corporations (collectively, the "Principal Subsidiaries"), or
(b) the voting securities of a Subsidiary that owns, directly or
indirectly, the voting securities of any of the Principal
Subsidiaries,
without making effective provision so that the Outstanding Securities of this
series shall be secured equally and ratably with the indebtedness so secured so
long as such other indebtedness shall be secured. This covenant and agreement by
the Company constitutes an agreement of the Company in respect of the Securities
of this series within the meaning of Section 5.1(d) of the Indenture.
For purposes of the preceding paragraph, "Subsidiary"' means any
corporation, partnership or other entity of which at the time of determination
the Company or one or more other Subsidiaries own directly or indirectly more
than 50% of the outstanding shares of the Voting Stock or equivalent interest,
and "Voting Stock"' means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
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 of the Securities to be affected 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
outstanding Securities to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities of any series at the time Outstanding, on behalf of the Holders
of all the Securities of such series, 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 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.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. 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 premium, if any) and interest on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed.
The Securities of this series are issuable 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,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of different authorized denominations, as requested
by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security Register
of the Company, upon surrender of this Security for registration of transfer at
the office or agency of the Company in the Borough of Manhattan, the City and
State of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee and duly executed by the Holder hereof or his attorney duly authorized
in writing, thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
This Security is in the form of a Global Security as provided in the
Indenture. If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository for this Security or if at any
time the
Depository for this Security shall no longer be eligible or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depository with
respect to this Security. If a successor Depository for this Security is not
appointed by the Company within 90 days after the Company receives notice or
becomes aware of such ineligibility, the Company will execute, and the Trustee
or its agent, upon receipt of a Company Request for the authentication and
delivery of certificates representing Securities of this series in exchange for
this Security, will authenticate and deliver, certificates representing
Securities of this series of like tenor and terms in an aggregate principal
amount equal to the principal amount of this Security in exchange for this
Security.
The Company may at any time and in its sole discretion determine that this
Security or portion hereof shall no longer be represented in the form of a
Global Security. In such event the Company will execute, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of certificates
representing Securities of this series in exchange in whole or in part for this
Security, will authenticate and deliver certificates representing Securities of
this series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Security or portion hereof in
exchange for this Security.
If specified by the Company pursuant to the Indenture with respect to this
Security, the Depository may surrender this Security in exchange in whole or in
part for certificates representing Securities of this series of like tenor and
terms in definitive form on such terms as are acceptable to the Company and the
Depository. Thereupon the Company shall execute, and the Trustee or its agent
shall authenticate and deliver, without a service charge, (1) to each Holder
specified by the Security Registrar or the Depository a certificate or
certificates representing Securities of this series of like tenor and terms and
of any authorized denomination as requested by such person in an aggregate
principal amount equal to and in exchange for such Holder's beneficial interest
as specified by the Security Registrar or the Depository in this Security; and
(2) to the Depository a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Security and the aggregate principal amount of
certificates representing Securities delivered to Holders thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration or 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 such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or interest
on this Security, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liabilities being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
The Securities of this series are subject to defeasance at the option of
the Company as provided in the Indenture.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: December 15, 2004 CNA FINANCIAL CORPORATION
By:_______________________________
Name: Lawrence J. Boysen
Title: Senior Vice President
and Controller
[SEAL]
Attest:
By:_______________________________
Name: David B. Lehman
Title: Assistant Secretary
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated: December 15, 2004 J. P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:_______________________________
Authorized Officer
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ______________Custodian___________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
__________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- ------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing______________attorney to transfer said Security on the books of
the Company, with full power of substitution in the premises.
Dated:
______________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
THE SIGNATURE(S) MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR INSTITUTION" THAT
IS A MEMBER OR PARTICIPANT IN A "SIGNATURE GUARANTEE PROGRAM" (E.G., THE
SECURITIES TRANSFER AGENTS MEDALLION PROGRAM, THE STOCK EXCHANGE MEDALLION
PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION SIGNATURE PROGRAM).