EXHIBIT 10.2
SCHEDULE
to the
MASTER AGREEMENT
dated as of April 30 ,2002
between
MONY HOLDINGS, LLC
a limited liability company organized
under the law of the State
of Delaware
("Party B"),
and
AMBAC FINANCIAL SERVICES, L.P.,
a limited partnership organized under the law of
the State of Delaware
("Party A").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party B for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to Party A for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
Party B and will not apply to Party A.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to Party B will not apply to Party A.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party B and will apply to Party A; provided, however, that with respect
to Party A, an Early Termination Date in respect of all outstanding Transactions
will also occur immediately upon the occurrence of an Event of Default specified
in Section 5(a)(ix) (as added by Part 5(l) of this Schedule).
(f) Payments on Early Termination. For the purpose of Section 6(e):-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
Part 2. Tax Representations.
(a) Payer Representations. For purposes of Section 3(e) of this Agreement,
Party B and Party A each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may rely
on (i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of
the agreement contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement, and the accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement, and (iii) the satisfaction of the agreement of the other
party contained in Section 4(d) of this Agreement, provided that it
shall not be a breach of this representation where reliance is placed
on Clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal
or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party B and Party A make the following representations, as
applicable:
(i) Party B is a single-member limited liability company treated as a
disregarded entity for U.S. federal income tax purposes organized
under the laws of the State of Delaware, whose sole member is
MONY Group, Inc., a corporation organized under the laws of
Delaware.
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(ii) Party A is a limited partnership organized under the laws of the
State of Delaware.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver
the following documents, as applicable:-
(a) Tax forms, documents, or certificates to be delivered are:-
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Party Required to Deliver Form/Document/Certificate Date by Which to be
Document Delivered
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Party B A correct, complete and (i) Before the first Payment
executed U.S. Internal Date under this Agreement,
Revenue Service Form W-9 (ii) promptly upon reasonable
(or any successor thereto), demand by Party A, and (iii)
including appropriate promptly upon learning that
attachments, that eliminates any such form previously
U.S. federal backup provided by Party B has
withholding tax on payments become obsolete or incorrect.
under this Agreement.
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Party A A correct, complete and (i) Before the first Payment
executed U.S. Internal Date under this Agreement,
Revenue Service Form W-9 (ii) promptly upon reasonable
(or any successor thereto), demand by Party B, and (iii)
including appropriate promptly upon learning that
attachments that eliminates any such form previously
U.S. federal backup provided by Party A has
withholding tax on payments become obsolete or incorrect.
under this Agreement.
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(b) Other documents to be delivered are:
Party Date by
required to which Covered by
deliver Form/Document/ to be Section 3(d)
document Certificate delivered Representation
Party B If available, and as requested, a copy of Promptly Yes
the most recent annual report of MONY following
Holdings, LLC containing its consolidated demand by
financial statements prepared in such form Party A made at
as they are required of Party B under the a time when
Indenture. Party B would
be required to
deliver such
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financials under
the Indenture
Party A Unaudited Quarterly Financial Statement Promptly Yes
of Ambac Financial Group. following
demand by
Party B
Party A Annual Financial Statement of Ambac Promptly Yes
Financial Group. following
demand by
Party B
Party A and Certified incumbency certificate or other At execution of Yes
Party B evidence of authority and specimen this Agreement
signatures with respect to the party and its
signatories.
Party A An executed copy of the AFSLP Credit At execution of No
Enhancement. this Agreement
Party B An executed copy of the MONY Credit At execution of No
Enhancement. this Agreement
Party A and Legal Opinion in form and substance At execution of No
AFSLP Credit satisfactory to Party B. this Agreement
Enhancer
Party B Legal Opinion in form and substance At execution of No
satisfactory to Party A. this Agreement
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):-
Address for notices or communications to Party B:-
Address: 0000 Xxxxxxxx
Xxx Xxxx
XX 00000
Attention: President
Address for notices or communications to MONY Credit Enhancer:
Address: Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Address for notices or communications to Party A:-
Address: 0 Xxxxx Xxxxxx Xxxxx, 00/xx/ xxxxx, Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxxxx Xxxxxx
Facsimile No.: 000-000-0000 Telephone No.: 000-000-0000
Electronic Messaging System Details: None.
Address for notices or communications AFSLP Credit Enhancer:
Address: Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
(b) Process Agent. For the purpose of Section 13(c):-not applicable
(c) Offices; Multibranch Parties.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):-
Party B is not a Multibranch Party.
Party A is not a Multibranch Party.
(d) Calculation Agent. As specified in a Confirmation.
(e) Credit Support Document. Details of any Credit Support Document, each
of which are incorporated by reference in, and made part of, this Agreement and
each Confirmation (unless provided otherwise in a Confirmation) as if set forth
in full in this Agreement or such Confirmation:-
Party B: Financial Guaranty Insurance Policy for Swap Transaction
(Reference No. CPP0147BE) issued by the MONY Credit Enhancer (defined below),
dated as of the date hereof (the "MONY Credit Enhancement").
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Party A: Financial Guaranty Insurance Policy for Swap Transaction
(Reference No. SWLP0147BE) issued by the AFSLP Credit Enhancer (defined below),
dated as of the date hereof (the "AFSLP Credit Enhancement").
(f) Credit Support Provider.
Credit Support Provider means in relation to Party B, Ambac Assurance
Corporation (the "MONY Credit Enhancer") and in relation to Party A, Ambac
Assurance Corporation ("AFSLP Credit Enhancer").
(g) Governing Law. This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the law of the State of New
York (without reference to its choice of law doctrine).
(h) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of Subparagraph (i) thereof the word "non-"; and (ii) deleting the
final paragraph thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will not apply
to Transactions with effect from the date of this Agreement.
(j) "Affiliate". will have the meaning specified in Section 14; provided,
however, that for purposes of Section 3(c), such term shall only refer to any
Credit Support Provider of the party and/or any party that is a Specified Entity
for Bankruptcy.
Part 5. Other Provisions.
(a) Accuracy of Specified Information. Section 3(d) is hereby amended by
adding in the third line thereof after the word "respect" and before the period
the words "or, in the case of audited or unaudited financial statements or
balance sheets, a fair presentation in all material respects of the financial
condition of the relevant person."
(b) Transfer. The following sections 7(c) and 7(d) shall be inserted
respectively at the end of Section 7(b) of this Agreement:
"(c) Party A hereby consents to assignment by Party B of all of its
right, title and interest in and under this Agreement by way of
security to the Trustee as Collateral as provided in the Indenture;
and
"(d) Notwithstanding anything to the contrary in this Agreement, Party
A may without the consent of Party B transfer all of its rights and
obligations with respect to all Transactions to any of its Affiliates
if at the time of such transfer (w) no Termination Event, Event of
Default or Potential Event of Default as defined in this Agreement
shall be occurring with respect to such Affiliate, (x) AFSLP Credit
Enhancer shall confirm in writing to Party A and Party B that the
Policy shall remain in full force and effect and cover such Affiliate
after such assignment or transfer, (y) Party B will not, as a result
of such transfer, be required on the next succeeding Scheduled Payment
Date to pay to the transferee
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an amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e))
greater than the amount in respect of which Party B would have been
required to pay to Party A in the absence of such transfer and (z) the
transferee will not, as a result of such transfer, be required on the
next succeeding Scheduled Payment Date to withhold or deduct on
account of a Tax under Section 2(d)(i) (except in respect of interest
under Section 2(e), 6(d)(ii) or 6(e)) amounts in excess of that which
Party A would on the next succeeding Scheduled Payment Date have been
required to so withhold or deduct in the absence of such transfer
unless the transferee would be required to make additional payments
pursuant to Section 2(d)(i)(4) corresponding to such excess. With
respect to the result described in subclauses (y) and (z) above, Party
A agrees to cause such transferee to make and Party B agrees to make
such Payee Tax Representations and Payer Tax Representations as may be
reasonably requested by the other party in order to permit such other
party to determine that such result will not occur after such
transfer. Any transfer permitted by the foregoing clauses will not
constitute an event or condition described in Section 5(a)(viii) or
5(b)(iv)."
(c) Confirmations. On or promptly following the Trade Date or other
transaction date of each Transaction, Party B will send a Confirmation to Party
A. Party A will promptly thereafter confirm the accuracy of (in the manner
required by Section 9(e)), or request the correction of, such Confirmation (in
the latter case, indicating how it believes the terms of such Confirmation
should be correctly stated and such other terms which should be added to or
deleted from such Confirmation to make it correct).
(d) Reference Market-makers. The definition of "Reference Market-makers"
in Section 14 is hereby amended by adding in the fourth line thereof after the
word "credit" the words "or to enter into transactions similar in nature to
Transactions"
(e) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of Section 2, 5,
6, or 13 (or any definition or provision in Section 14 to the extent it relates
to, or is used in or in connection with any such Section) shall be so held to be
invalid or unenforceable.
(f) Section 6 Early Termination is hereby amended by adding the following:
"(f) Set-off. Each party hereby irrevocably waives any right it would
otherwise have to set off any amount payable by it under this
Agreement against any obligation owed to it under any other agreement
or under any instrument of the other party."
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(g) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is
hereby amended by adding in the second line thereof after the word "Document"
and before the semicolon the words "(or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf)".
(h) Additional Representations. Section 3 is hereby amended by adding the
following additional Subsections:
"(g) No Agency. It is entering into this Agreement and each
Transaction as principal (and not as agent or in any other capacity,
fiduciary or otherwise).
(h) Swap Exemption.
(i) This Transaction is intended to constitute a "swap
agreement" within the meaning of Section 101(53)(B) of the
U.S. Bankruptcy Code, as amended.
(ii) Each party is an "eligible contract participant" as defined
in Section la(12) of the Commodity Exchange Act (7
X.X.X.xx), as amended by the Commodity Futures
Modernization Act of 2000.
(iii) This Agreement has been subject to individual negotiation
by each party.
(i) No Reliance. In connection with the negotiation of, the entering
into, and the confirming of the execution of, this Agreement, any
Credit Support Document to which it is a party, and each Transaction:
(i) the other party is not acting as a fiduciary or financial or
investment advisor for it; (ii) it is not relying upon any
representations (whether written or oral) of the other party other
than the representations expressly set forth in this Agreement and in
such Credit Support Document; and (iii) it has consulted with its own
legal, regulatory, tax, business, investment, financial, and
accounting advisors to the extent it has deemed necessary, and it has
made its own investment, hedging, and trading decisions based upon its
own judgment and upon any advice from such advisors as it has deemed
necessary and not upon any view expressed by the other party."
(i) Additional Event of Default. The following Event of Default shall be
added to Section 5(a) of this Agreement with respect to Party A:
"(ix) Termination Payment Default. The total of all payments due and
owing by Party A and Party A's wholly-owned subsidiary, Ambac
Financial Products Inc. ("AFPI"), and AFSLP Credit Enhancer for more
than three Business Days after notice of failure to make such payments
in respect of (A) swap agreements between Party A or AFPI and other
counterparties, and (B) the financial guaranty insurance policies
issued by AFSLP Credit Enhancer with respect to such swap agreements,
exceeds the aggregate of $10,000,000. An Event of Default under this
Section 5(a)(ix) shall be an Event of Default with respect to Party
A."
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(j) Events of Default. Notwithstanding anything to the contrary elsewhere
in this Agreement, the events and circumstances contemplated in the following
provisions will not constitute Events of Default under this Agreement with
respect to Party B: Section 5(a)(ii) (Breach of Agreement); Section 5(a)(iii)
(Credit Support Default); Section 5(a)(v) (Default under Specified Transaction);
Section 5(a)(vi) (Cross Default). In addition, (1) a failure by Party B to make
a payment under this Agreement will not constitute an Event of Default pursuant
to Section 5(a)(i) until it constitutes an Event of Default under the Indenture,
(2) none of the events and circumstances listed in clauses (1) through (9) of
Section 5(a)(vii) of this Agreement will constitute an Event of Default with
respect to Party B unless the same event or circumstance constitutes a
Bankruptcy Event under the Indenture and (3) as Section 5(a)(vii) applies to
Party B, it shall also include each of the events and circumstances treated
under the Indenture as a Bankruptcy Event, to the extent not already covered in
Section 5(a)(vii) of this Agreement.
(k) Notice of Automatic Early Termination. Party A shall promptly provide
(or cause to be provided) to Party B notice of the occurrence of an Automatic
Early Termination following an Event of Default specified in Section 5(a)(vii)
or 5(a)(ix) with respect to it.
(l) Right to Terminate Following Event of Default. Section 6(a) of this
Agreement is hereby amended to read in its entirety as follows:
"(a) Right to Terminate Following Event of Default. If at any time
an Event of Default with respect to a party (the "Defaulting Party")
has occurred and is then continuing, the other party (the
"Non-defaulting Party") may (in the event that Party A is the
Defaulting Party, subject to Section 6(f) of this Agreement (as added
by Part 5(m) of this Schedule) and, in the event that Party B is the
Defaulting Party, subject to Section 8(j) of this Agreement (as added
by Part 5(n) of this Schedule)), and shall, at the direction of MONY
Credit Enhancer (in the event that Party A is the Defaulting Party,
subject to Section 6(f) hereof) by not more than 20 days' notice to
the Defaulting Party specifying the relevant Event of Default,
designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions.
If, however, "Automatic Early Termination" is specified in the
Schedule as applying to a party, then an Early Termination Date in
respect of all outstanding Transactions will occur immediately upon
the occurrence with respect to such party of an Event of Default
specified in (A) Section 5(a)(vii)(l), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(4) or, to the extent
analogous thereto, (8) and (B) if such party is Party A, Section
5(a)(ix)."
(m) Additional Termination Provisions. The following provisions are added
as clause (f) to Section 6 of this Agreement:
"(f) Termination of all Transactions Following Termination Event.
Notwithstanding anything to the contrary in Section 6, (a) any notice
that Party B properly delivers under Section 6(a) or 6(b)(iii)
designating an Early Termination
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Date with respect to any Transaction (or the occurrence of an Automatic Early
Termination pursuant to Section 6(a) following an Event of Default specified in
Section 5(a)(vii) or 5(a)(ix) with respect to Party A) shall have the effect of
designating such Early Termination Date as the Early Termination Date in respect
of all Transactions and (b) such notice (or the occurrence of such Automatic
Early Termination pursuant to Section 6(a) following an Event of Default
specified in Section 5(a)(vii) or 5(a)(ix) with respect to Party A) shall have
the following effect:
(i) Unless an Insurer Event of Default or an Insurer Termination Event has
occurred and is continuing on the date designated in such notice, or deemed to
have been designated, as the Early Termination Date:
(A) The Early Termination Date designated in Party B's notice (or deemed
to have occurred as a result of an Automatic Early Termination) shall be
the Early Termination Date for this Agreement, and amounts payable in
respect thereof shall be calculated as set forth in Section 6 of this
Agreement; provided, however, that AFSLP Credit Enhancer shall be entitled
to make any calculations that Party B otherwise would have been entitled to
make pursuant to said Section 6(e), and provided, further, that no amounts
will be payable by Party A to Party B or by Party B to Party A in respect
thereof
(B) From and after the Early Termination Date designated in such notice
(or deemed to have been designated upon the occurrence of an Automatic
Early Termination), Party B shall have no further rights against or
obligations to the Party A in respect of which the relevant Event of
Default or Termination Event occurred under this Agreement or any
Transaction hereunder and will look solely to AFSLP Credit Enhancer for the
performance under the AFSLP Credit Enhancement of what would otherwise be
Party A's continuing obligations under this Agreement, subject to the terms
and conditions set forth in the AFSLP Credit Enhancement;
(C) From and after such Early Termination Date, in consideration for AFSLP
Credit Enhancer's performance of its continuing obligations under the AFSLP
Credit Enhancement, Party B shall perform all of the continuing
obligations, and shall pay such amounts, as would otherwise have been
required from it under this Agreement and all Transactions hereunder if no
early termination of such Transactions had occurred, to AFSLP Credit
Enhancer pursuant to the AFSLP Credit Enhancement, subject to the terms and
conditions set forth therein (and AFSLP Credit Enhancer shall become the
intended beneficiary of the agreement in this clause (C));
(D) From and after such Early Termination Date, in consideration of AFSLP
Credit Enhancer's performance of its continuing obligations under
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the AFSLP Credit Enhancement, AFSLP Credit Enhancer shall
become the beneficiary of MONY's Credit Support Documents,
if any, as though AFSLP Credit Enhancer was the original
beneficiary thereof; and
(E) From and after such Early Termination Date, in
consideration for AFSLP Credit Enhancer's performance of
its obligations under the AFSLP Credit Enhancement and the
agreement of Party B in clause (C) above, without limiting
AFSLP Credit Enhancer's obligations under the AFSLP Credit
Enhancement to Party B, AFSLP Credit Enhancer shall assume
all of Party A's right and obligations under this
Agreement and all Transactions hereunder (including the
right to make calculations under Section 6(d)(i) and the
right to receive or obligation to pay as applicable
amounts under Section 6(d)(ii)) and AFSLP Credit Enhancer
is an intended beneficiary of the agreement in this clause
(E) and thereafter Party B may look only to AFSLP Credit
Enhancer for performance of Party A's rights and
obligations under this Agreement and all Transactions
hereunder.
(ii) If an Insurer Event of Default or an Insurer Termination
Event has occurred and is continuing on the date designated in the
Swap Termination Notice delivered by Party B as provided in this
Part 5, or deemed to have been designated, as the Early
Termination Date, (a) Party B shall have no right to payment under
the AFSLP Credit Enhancement except for payment of amounts owing
but unpaid by Party A following the Early Termination Date and (B)
all Transactions shall terminate in accordance with the terms
hereof as of the Early Termination Date specified in such notice.
(iii) Notwithstanding (i) and (ii) above, if the termination
notice is in respect of a Termination Event with respect to Party
A, and there is no Insurer Event of Default or Insurer Termination
Event occurring on the date designated in the Swap Termination
Notice delivered by Party B as provided in this Part 5, or deemed
to have been designated, as the Early Termination Date, Party A
may instead transfer its rights and obligations with respect to
all Transactions to any of its Affiliates without the consent of
Party B pursuant to Section 7(as modified by this Schedule).
(n) Miscellaneous. Section 8 of this Agreement is modified by adding
clauses (h), (i), and (j) as follows:
"(h) Subrogation. To the extent that Party A has received
payment from MONY Credit Enhancer or another entity in respect of
amounts that would otherwise be due from Party B under this
Agreement, such entity shall be subrogated to Party A with respect
to Party A's right to receive such amounts from Party B. To the
extent that Party B has received payment from AFSLP Credit
Enhancer or another entity in respect of amounts that would
otherwise be due from Party A under this Agreement, such entity
shall be subrogated to Party B with respect to Party B's right to
receive such amounts from Party A.
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(i) AFSLP Credit Enhancer and MONY Credit Enhancer as Party in
Interest and Third-Party Beneficiary. The parties hereto acknowledge
and agree that (a) AFSLP Credit Enhancer is a party in interest and
third-party beneficiary under this Agreement entitled to enforce its
rights as so stated herein and as subrogee of Party A as if it were
a party hereto and (b) AFSLP Credit Enhancer's obligations with
respect to this Agreement are limited to the provisions of the AFSLP
Credit Enhancement, except as otherwise set forth in this Agreement.
Each covenant and representation of Party B in this Agreement is made
for the benefit of AFSLP Credit Enhancer. The parties hereto further
acknowledge and agree that (a) MONY Credit Enhancer is a party in
interest and third-party beneficiary under this Agreement entitled to
enforce its rights as so stated herein and as subrogee of Party B as
if it were a party hereto and (b) MONY Credit Enhancer's obligations
with respect to this Agreement are limited to the provisions of MONY
Credit Enhancement, except as otherwise set forth in this Agreement.
Each covenant and representation of Party A in this Agreement is made
for the benefit of MONY Credit Enhancer.
(j) MONY Credit Enhancer Provisions. Notwithstanding anything to the
contrary set forth in this Agreement, until such time as (A) the MONY
Credit Enhancement is not in effect, (B) there shall have occurred
and be continuing the event described in Section 5(a)(vii) of this
Agreement with respect to MONY Credit Enhancer or (C) there shall
have occurred and be continuing a default under the MONY Credit
Enhancement, Party A shall not, unless consented to by MONY Credit
Enhancer in writing: (1) suspend payments under Section 2 of this
Agreement (if permitted thereunder); or (2) exercise remedies
pursuant to this Agreement including designation of an Early
Termination Date. If at any time there shall occur an event or
circumstance referred to in the foregoing clause (A), (B) or (C),
Party A may designate an Early Termination Date without the consent
of MONY Credit Enhancer if Party A is otherwise entitled to do so;
provided, however, that Party A acknowledges that only terminations
directed by or consented to by MONY Credit Enhancer are covered under
the MONY Credit Enhancement."
(o) Pledge of Swap Payment Rights and Other Property. Party A has pledged
its right to receive payments under this Agreement (subject to all provisions,
including, without limitation, the netting provisions hereof) and under all
other swap agreements entered into or to be entered into by Party A ("Other Swap
Agreements") and has pledged or will pledge certain other property, to The Bank
of New York, or its successor, as collateral trustee, for the benefit of Party B
and the counterparties under Other Swap Agreements, ratably to secure Party A's
obligations to make payments to Party B and such counterparties under this
Agreement and Other Swap Agreements following the occurrence of an Event of
Default with respect to Party A set forth in Section 5(a)(vii) or 5(a)(ix) of
this Agreement.
(p) Copies of Certain Notices. Each of Party B and Party A shall deliver
to MONY Credit Enhancer and AFSLP Credit Enhancer, respectively, a copy of any
notice delivered by it to the other party of the occurrence of any Event of
Default or Termination Event under this Agreement, and no such notice shall be
deemed effective with respect to the other party unless
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and until it is also deemed effective with respect to MONY Credit Enhancer or
AFSLP Credit Enhancer, as the case may be.
(q) Non-Petition. Party A hereby covenants, to the fullest extent
permitted by law, that it will not at any time prior to foreclosure on all of
the Collateral, liquidation of all of the Collateral and application of the
moneys so collected pursuant to Section 6.05 of the Indenture, institute against
Party B, or join in any institution against Party B of, any bankruptcy,
reorganization, arrangement, insolvency, rehabilitation, conservation or
liquidation proceedings, or any other proceedings under any United States
federal or state, or any other, bankruptcy, insolvency or similar law in
connection with any obligations relating to this Agreement and any Confirmation
hereof, the Indenture, or any agreement relating hereto or thereto.
(r) Limited Recourse. Recourse with respect to the obligations of Party B
under this Agreement and in respect of any Transaction and the related
Confirmation hereunder (the "Swap Obligations") shall be limited, first, to the
Collateral, and, upon foreclosure on all the Collateral, liquidation of all the
Collateral and application of the moneys so collected pursuant to Section 6.05
of the Indenture, second, to Party B as senior, unsecured indebtedness to the
extent of the "fair market value" of the Closed Block Business as of the date of
the commencement of foreclosure on the Collateral. For this purpose, the fair
market value of the Closed Block Business shall be determined in the manner
provided for its determination under Section 6.06 of the Indenture.
No recourse may be had with respect to the Swap Obligations, the Indenture
or any agreement, instrument, certificate, or other document related hereto or
thereto against any member of Party B, any Affiliate, Subsidiary or controlling
person of Party B or any of their respective stockholders, partners or members,
or against any officer or director of any such person or entity or any of their
successors or predecessors, or against any beneficiary or equity owner of a
trust, including MONY Group or MONY Life, and, except as provided in the
immediately preceding paragraph, no suit, claim or proceeding may be brought
against any such person or entity for any obligation relating to the Swap
Obligations, the Indenture or any such agreement, instrument, certificate, or
other document.
(s) Additional Definitions.
"AFSLP Credit Enhancer" has the meaning set forth in Part 4(f) of the
Schedule to this Agreement.
"AFSLP Credit Enhancement" has the meaning set forth in Part 4(e) off
the Schedule to this Agreement.
"Closed Block Business" has the meaning set forth in the Indenture.
"Collateral" has the meaning set forth in the Indenture.
"Indenture" means the Indenture dated as of April 30, 2002, among
MONY Holdings, LLC, Ambac Assurance Corporation, The MONY Group Inc.,
solely for the limited purposes set forth therein, and Bank One Trust
Company, N.A., as Trustee, as it may be amended from time to time in
accordance with its terms.
-13-
"Insurer Event of Default" has the meaning set forth in the AFSLP
Credit Enhancement.
"Insurer Termination Event" has the meaning set forth in the AFSLP
Credit Enhancement.
"MONY Credit Enhancer" has the meaning set forth in Part 4(f) of the
Schedule to this Agreement.
"MONY Credit Enhancement" has the meaning set forth in Part 4(e) of
the Schedule to this Agreement.
"MONY Group" has the meaning set forth in the Indenture.
"MONY Life" has the meaning set forth in the Indenture.
"Subsidiary" has the meaning set forth in the Indenture.
"Swap Termination Notice" has the meaning set forth in the AFSLP
Credit Enhancement.
"Trustee" means, at any time, the person acting in the capacity of
Trustee under the Indenture.
-14-
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
MONY HOLDINGS, LLC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Date: April 30, 2002
AMBAC FINANCIAL SERVICES, L.P.
By: Ambac Financial Holdings, Inc.,
its General Partner
By:____________________________________
Name:
Title:
Date:
By:____________________________________
Name:
Title:
Date:
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
MONY HOLDINGS, LLC.
By:___________________________________
Name:
Title:
Date:
AMBAC FINANCIAL SERVICES, L.P.
By: Ambac Financial Holdings, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Date:
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: First Vice President and
Director of Operations
Date:
