Exhibit 4.3
MONY Holdings, LLC
Floating Rate Insured Notes due January 21, 2017
______________
Purchase Agreement
April 24, 2002
Xxxxxxx, Xxxxx & Co.,
Credit Suisse First Boston,
Advest, Inc.,
XX Xxxxxx,
Xxxxxxx Xxxxx Xxxxxx Inc.,
Fleet Securities, Inc.
As representatives of the several Purchasers
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
MONY Holdings, LLC, a Delaware limited liability company (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "Purchasers")
$300 million principal amount of Floating Rate Insured Notes due January 21,
2017 (the "Notes").
The Company is a wholly owned subsidiary of The MONY Group Inc.
("MONY") and the parent holding company of MONY Life Insurance Company ("MONY
Life").
1. The Company represents and warrants to, and agrees with, each of
the Purchasers that:
(a) A preliminary offering circular, dated April 15, 2002 (the
"Preliminary Offering Circular"), and an offering circular, dated
April 24, 2002 (the "Offering Circular"), in each case including the
international supplement thereto, have been prepared in connection
with the offering of the Notes. Any reference to the Offering Circular
shall be deemed to refer to and include: (i) the Final Term Sheet
included in and made a part of the Offering Circular as one document
and (ii) any Additional Issuer Information (as defined in Section
5(f)) furnished by the Company prior to the completion of the
distribution of the Notes; and any reference to the Preliminary
Offering Circular shall be deemed to refer to and include: (i) the
Preliminary Term Sheet included in and made a part of the Preliminary
Offering Circular as one document and (ii) such Additional Issuer
Information. The Preliminary Offering Circular or the Offering
Circular and any amendments or supplements thereto did not and will
not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company or MONY by a Purchaser through
Xxxxxxx, Xxxxx & Co. expressly for use therein;
(b) None of the Company, MONY, MONY Life or any of their
respective subsidiaries has sustained since the date of the latest
audited financial statements included in the Offering Circular any
loss or interference with its business that is, individually or in the
aggregate, material to the Company, MONY, MONY Life and their
respective subsidiaries, considered as a whole, from fire, explosion,
flood or other calamity, whether or not covered by insurance
(excluding, for the avoidance of doubt, any insurance underwriting
losses of MONY Life or its subsidiaries), or from any labor dispute or
court or governmental action, order or decree, in each case other than
as set forth or contemplated in the Offering Circular; and, since the
respective dates as of which information is given in the Offering
Circular, there has not been any material decrease in the capital or
surplus of MONY Life, any material decrease in the capital of the
Company or MONY or any material increase in the consolidated long term
debt of MONY or the Company, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, management, financial position, the members'
equity of the Company or results of operations of the Company, MONY,
MONY Life and any of their subsidiaries, considered as a whole, in
each case other than as set forth or contemplated in the Offering
Circular;
(c) Each of the Company, MONY, MONY Life and their respective
subsidiaries has good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned
by it, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Offering Circular or such
as would not have, individually or in the aggregate, a material
adverse effect on the business, management, financial position,
shareholders' equity or results of operations of the Company, MONY,
MONY Life and their respective subsidiaries, considered as a whole (a
"Material Adverse Effect"); and any real property and buildings held
under lease by the Company, MONY, MONY Life or any of their respective
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect;
(d) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware; MONY has been duly incorporated as a corporation in good
standing under the laws of the State of Delaware; each of the Company
and MONY has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Circular, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except to the extent
that the failure to be so qualified would not have, individually or in
the aggregate, a Material Adverse Effect; the Company has no direct
subsidiaries other than MONY Life; MONY Life has been duly
incorporated and is validly existing as a stock life insurance company
in good standing under the laws of the State of New York, with the
corporate power and authority to own its properties and conduct its
business as described in the Offering Circular; each other subsidiary
of MONY and MONY Life has been duly incorporated or organized, as the
case may be, and is validly existing as a corporation, partnership or
limited liability company, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or organization, as the
case may be, with the power (corporate, partnership or limited
liability company, as the case may be) and authority to own its
properties and conduct its business as described in the Offering
Circular, except to the extent that any failure to be in such good
standing would not have, individually or in the aggregate, a Material
Adverse Effect; and each subsidiary of MONY Life is duly qualified to
do business as a foreign corporation, partnership or limited liability
company, as the case may be, for the transaction of business in and is
in good standing under the laws of each other jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification and good standing, except to the extent
that the failure to be so qualified would not have, individually or in
the aggregate, a Material Adverse Effect;
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(e) All of the issued limited liability company interests of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; all of the issued shares of capital stock of
MONY have been duly and validly authorized and issued and are fully
paid and non-assessable; all of the issued shares of capital stock of
MONY Life have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors' qualifying shares
and except as set forth in the Offering Circular) are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(f) The Notes have been duly authorized and, when issued and
delivered against payment therefor pursuant to this Agreement, and
when duly authenticated by the Trustee, will have been duly executed,
issued and delivered and will constitute valid and legally binding
obligations of the Company subject to bankruptcy, insolvency,
fraudulent conveyance, rehabilitation, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles, entitled to the benefits provided by
the indenture to be dated as of April 30, 2002 (the "Indenture")
between the Company, MONY (for the limited purposes set forth
therein), Ambac Assurance Corporation ("Ambac") and Bank One Trust
Company, N.A., as Trustee (the "Trustee"), under which they are to be
issued; the Indenture has been duly authorized and, when executed and
delivered by the parties thereto, the Indenture will constitute a
valid and legally binding instrument of the Company and MONY,
enforceable against the Company and MONY in accordance with its terms,
subject to bankruptcy, insolvency, rehabilitation, fraudulent
conveyance, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Notes and the Indenture will conform in all
material respects to the descriptions thereof in the Offering
Circular;
(g) The insurance agreement between the Company, MONY (for the
limited purposes set forth therein), MONY Life (for the limited
purposes set forth therein), the Trustee and Ambac (the "Insurance
Agreement") has been duly authorized and, when executed and delivered
by the parties thereto, the Insurance Agreement will constitute a
valid and legally binding instrument of the Company, MONY and MONY
Life, enforceable against the Company and MONY Life in accordance with
its terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(h) The Exchange and Registration Rights Agreement among the
Company, MONY Life and the Purchasers to be dated as of April 30, 2002
(the "Registration Rights Agreement"), which shall be in the form of
the draft of the date hereof, has been duly authorized by the Company,
and, when executed and delivered by the Company and MONY Life
(assuming due authorization, execution and delivery by the
Purchasers), will constitute a valid and legally binding agreement of
the Company and MONY Life enforceable against the Company and MONY
Life in accordance with its terms, subject to bankruptcy, insolvency,
rehabilitation, fraudulent conveyance, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; provided, however, that no
representation or warranty with respect to enforceability is made with
respect to the indemnity provisions in the Registration Rights
Agreement;
(i) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Notes) will violate or result in a violation of Section 7 of
the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any regulation promulgated thereunder, including,
without limitation Regulations G, T, U, and X of the Board of
Governors of the Federal Reserve System;
(j) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which would reasonably be expected
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to cause or result in stabilization or manipulation of the price of
any security of the Company in connection with the offering of the
Notes;
(k) The issue and sale of the Notes and the compliance by the
Company, MONY and MONY Life and their respective subsidiaries, as
applicable, with all of the provisions of the Notes, the Indenture,
the Registration Rights Agreement, the Swap Confirmation (as defined
herein), the lnsurance Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, MONY, MONY Life or any of their
respective subsidiaries is a party or by which the Company, MONY, MONY
Life or any of their respective subsidiaries is bound or to which any
of the property or assets of the Company, MONY, MONY Life or any of
their respective subsidiaries is subject, nor will such actions result
in any violation of the provisions of the Limited Liability Company
Agreement of the Company, the Amended and Restated Charter or Amended
and Restated By-Laws of MONY Life, the Amended and Restated
Certificate of Incorporation or Amended and Restated By-Laws of MONY
or the organizational documents of any of their respective
subsidiaries or any statute or any order, rule or regulation of any
court or insurance regulatory agency or other governmental agency or
body having jurisdiction over the Company, MONY, MONY Life or any of
their respective subsidiaries or any of their properties, except to
the extent that such conflict, breach, default or violation would not
have, individually or in the aggregate, a Material Adverse Effect;
(l) Neither the Company, MONY, MONY Life nor any of their
respective subsidiaries is, or at the Time of Delivery, will be in
violation of its organizational documents or instruments or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
which violation or default would have, individually or in the
aggregate, a Material Adverse Effect;
(m) The statements set forth in the Offering Circular under the
caption "Description of the Notes", insofar as they purport to
constitute a summary of the terms of the Notes are true and complete
in all material respects;
(n) Other than as set forth in the Offering Circular, no legal or
governmental proceeding is pending or, to the best of the Company's,
MONY's and MONY Life's knowledge, is currently being threatened
challenging the offering of the Notes by the Purchasers;
(o) Other than as set forth in the Offering Circular, there are
no legal or governmental proceedings pending to which the Company,
MONY, MONY Life or any of their respective subsidiaries is a party or
of which any property of the Company, MONY, MONY Life or any of their
respective subsidiaries is the subject which, if determined adversely
to the Company, MONY, MONY Life or any of their respective
subsidiaries, would individually or in the aggregate, have a Material
Adverse Effect; and to the best of the Company's, MONY's and MONY
Life's knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(p) All filings and consents of or with any court, insurance
regulatory agency or governmental agency or body required in
connection with the issuance and sale by the Company of the Notes to
the Purchasers hereunder, the entry into and the compliance by the
Company, MONY and MONY Life, as applicable, with this Agreement, the
Insurance Agreement, the Swap Confirmation, the Registration Rights
Agreement and the Indenture, or the consummation of the transactions
contemplated hereby or thereby, have been made or obtained and all
such filings and consents are in full force and effect, except to the
extent that the failure to obtain or make
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any such filings or consent or be in full force and effect would not
have, individually or in the aggregate, a Material Adverse Effect and
would not affect the validity, performance or consummation of the
transactions contemplated by this Agreement, the Insurance Agreement
and the Indenture; provided, however, that no representation or
warranty is made in this subsection (p) (i) as to state securities or
Blue Sky laws or state insurance securities laws in connection with the
purchase and distribution of the Notes by the Purchasers, (ii) as to
any filing that may be required under the Act or the United States
Trust Indenture Act of 1939 in connection with the Registration Rights
Agreement or (iii) as to any filings or consents that have already been
obtained or made;
(q) To the best of the Company's, MONY's and MONY Life's
knowledge other than Section 4207 of the New York Insurance Law, no
insurance regulatory authority or body has issued any order or decree
impairing, restricting or prohibiting the payment of dividends by MONY
Life to the Company; and to the best of the Company's, MONY's and MONY
Life's knowledge, other than pursuant to the applicable requirements
of the Ohio and Arizona Insurance laws, no insurance regulatory
authority or body has issued any order or decree impairing,
restricting or prohibiting the payment of dividends to its parent by
any subsidiary of MONY or MONY Life that is required to be organized
or licensed as an insurance company or reinsurance company in its
jurisdiction of incorporation (each an "Insurance Subsidiary"), except
for any such order or decree as would not have, individually or in the
aggregate, a Material Adverse Effect;
(r) Each of MONY Life and each Insurance Subsidiary is duly
organized and licensed as an insurance company in its respective
jurisdiction of incorporation and is duly licensed or authorized as an
insurer in each other jurisdiction where it is required to be so
licensed or authorized to conduct its business, in each case with such
exceptions individually or in the aggregate, as would not have a
Material Adverse Effect; except as otherwise specifically described in
the Offering Circular, each of MONY Life and each Insurance Subsidiary
has all other approvals of and from all insurance regulatory
authorities to conduct their respective businesses, with such
exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; there is no pending or, to the knowledge of
the Company, MONY or MONY Life, threatened action, suit, proceeding or
investigation that could reasonably be expected to lead to the
revocation, termination or suspension of any such approval, the
revocation, termination or suspension of which would have,
individually or in the aggregate, a Material Adverse Effect;
(s) Each of MONY Life and each Insurance Subsidiary is in
compliance with the requirements of the insurance laws and regulations
of its respective jurisdiction of incorporation and the insurance laws
and regulations of other jurisdictions which are applicable to it, and
has filed all notices required to be filed thereunder, in each case,
with such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect;
(t) Each subsidiary of MONY Life which is engaged in the business
of acting as a broker-dealer, or an investment advisor (the
"Broker-Dealer Subsidiaries" and Investment Advisor Subsidiaries",
respectively) is duly licensed or registered as a broker-dealer or
investment advisor, as the case may be, in each jurisdiction
(including the United States) where it is required to be so licensed
or registered to conduct its business, in each case, with such
exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; each Broker-Dealer Subsidiary and Investment
Advisor Subsidiary has all other necessary approvals of and from all
applicable regulatory authorities to conduct their respective
businesses, in each case with such exceptions, individually or in the
aggregate, as would not have a Material Adverse Effect. None of the
Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has
received any notification from any applicable regulatory authority to
the effect that any additional approvals from such regulatory
authority are needed to be obtained by such subsidiary in any case
where it could be reasonably expected that (x) any of the
Broker-Dealer Subsidiaries or Investment
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Advisor Subsidiaries would in fact be required either to obtain any
such additional approvals or cease or otherwise limit engaging in
certain business and (y) the failure to have such approvals or limiting
such business would have a Material Adverse Effect; and each
Broker-Dealer Subsidiary and Investment Advisor Subsidiary is in
compliance with the requirements of the applicable broker-dealer and
investment advisor laws and regulations of each jurisdiction which is
applicable to such subsidiary, and has filed all notices required to be
filed thereunder, in each case with such exceptions, individually or in
the aggregate, as would not have a Material Adverse Effect;
(u) When the Notes are issued and delivered pursuant to this
Agreement, the Notes will not be of the same class (within the meaning
of Rule 144A under the United States Securities Act of 1933, as
amended (the "Act")) as securities of the Company which are listed on
a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(v) Neither the Company, MONY nor MONY Life is or, after giving
effect to the offering and sale of the Notes, will be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(w) PricewaterhouseCoopers LLP, who have issued a report on the
consolidated financial statements of MONY Life prepared in accordance
with accounting principles generally accepted in the United States of
America ("US GAAP") as of December 31, 2001 and for each of the three
years in the period ended December 31, 2001 and on the financial
statements of MONY Life prepared in accordance with accounting
principles prescribed or permitted by the New York State Department of
Insurance ("SAP") as of December 31, 2001 and for each of the two
years in the period ended December 31, 2001, are independent public
accountants as required by the Act and the rules and regulations of
the United States Securities and Exchange Commission (the
"Commission") thereunder;
(x) Neither the Company nor any person acting on its or their
behalf (other than any Purchasers or any affiliate of any Purchaser)
has offered or sold the Notes by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the Act
or, with respect to Notes sold outside the United States to non-U.S.
persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act,
and the Company, any affiliate of the Company and any person acting on
its or their behalf (other than any Purchaser or an affiliate of any
Purchaser) has complied with and will implement the "offering
restrictions" within the meaning of such Rule 902;
(y) Within the preceding six months, neither the Company nor any
other person acting on behalf of the Company (other than any Purchaser
or an affiliate of any Purchaser) has offered or sold to any person
any Notes, or any securities of the same or a similar class as the
Notes, other than Notes offered or sold to the Purchasers hereunder.
The Company will take reasonable precautions designed to insure that
any offer or sale, direct or indirect, in the United States or to any
U.S. person (as defined in Rule 902 under the Act) of any Notes or any
substantially similar security issued by the Company, within six
months subsequent to the date on which the distribution of the Notes
has been completed (as notified to the Company by Xxxxxxx, Sachs &
Co.), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Notes
in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of
the Act;
(z) The audited GAAP financial statements of MONY Life set forth
in the Offering Circular present fairly in all material respects the
financial position, results of operations and cash flows of MONY Life
as of and for the periods indicated therein in accordance with
generally
6
accepted accounting principles ("GAAP"). In addition, the audited
statutory basis financial statements of MONY Life set forth in the
Offering Circular present fairly in all material respects the
statutory financial position, results of operations, and cash flows as
of and for the periods indicated therein in accordance with statutory
accounting practices prescribed or permitted by the Insurance
Department of the State of New York;
(aa) The pro forma condensed financial statements and the related
notes thereto set forth in the Offering Circular have been compiled on
the pro forma basis described therein and, in the opinion of the
Company and MONY, the assumptions used in the preparation thereof were
reasonable at the time made and the adjustments used therein are based
upon good faith estimates and assumptions believed by the Company and
MONY to be reasonable at the time made;
(bb) The Company will own the Collateral (as defined in the
Indenture) as of the Time of Delivery, free and clear of all liens,
encumbrances and defects, and the Indenture will create as security
for the Notes a valid security interest in the Collateral in favor of
the Trustee for the benefit of the Trustee and the holders of the
Notes; and
(cc) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company and MONY.
2. Subject to the terms and conditions herein set forth, the Company
agrees, and MONY shall cause the Company, to issue and sell to each of the
Purchasers, and each of the Purchasers agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 99.25% of the principal amount
thereof, plus accrued interest, if any, from April 30, 2002 to the Time of
Delivery hereunder, the principal amount of Notes set forth opposite the name of
such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Notes, the
several Purchasers propose to offer the Notes for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Notes only to: (i) persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Act in transactions meeting the requirements of
Rule 144A or, (ii) institutions which it reasonably believes are "accredited
investors" ("Institutional Accredited Investors") within the meaning of Rule 501
(a)(1), (2), (3) or (7) under the Act or, (iii) upon the terms and conditions
set forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor; and
(c) It has not offered or sold and will not offer or sell the Notes
by any form of general solicitation or general advertising, including but not
limited to the methods described in Rule 502(c) under the Act.
4. (a) Except as set forth in the next paragraph, the Notes to be
purchased by each Purchaser hereunder will be represented by one or more global
Securities in book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company ("DTC") or its designated custodian.
The Company will deliver the Securities to Xxxxxxx, Xxxxx & Co., for the account
of each Purchaser, against payment by or on behalf of such Purchaser of the
purchase price therefor by wire transfer in Federal (same day) funds to the
account specified by the Company to Xxxxxxx, Sachs & Co., by causing DTC to
credit the Notes to the account of Xxxxxxx, Xxxxx & Co. at DTC. The Company will
cause the certificates representing the Notes to be made available to Xxxxxxx,
Sachs & Co. for
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checking at least twenty-four hours prior to the Time of Delivery (as defined
below) at the Closing Location (as defined below). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on April 30, 2002
or such other time and date as Xxxxxxx, Sachs & Co. and the Company may agree
upon in writing. Such time and date are herein called the "Time of Delivery".
Such Notes, if any, as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Company (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by or on behalf of the
Company to Xxxxxxx, Sachs & Co. for the account of certain of the Purchasers,
against payment by or on behalf of such Purchaser of the purchase price therefor
by wire transfer in Federal (same day) funds to the account specified by the
Company to Xxxxxxx, Xxxxx & Co. The Company will cause the certificates
representing such Notes to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the Closing Location (as
defined below).
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Purchasers pursuant to Section 7(j) hereof, will be delivered at such time and
date at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000 (the "Closing Location"), and the certificates representing the
Notes will be delivered at the Closing Location, all at the Time of Delivery. A
meeting will be held at the Closing Location at 9:00 am., New York City time, on
the New York Business Day next preceding the Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the purposes of
this Section 4, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. The Company and MONY, jointly and severally, agree with each of the
Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make
no amendment or any supplement to the Offering Circular which shall be
disapproved by you promptly after reasonable notice thereof; and to furnish you
with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Notes, provided that in connection therewith the Company and MONY shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or become subject to taxation in any
jurisdiction;
(c) Prior to 10:00 a.m. New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Purchasers with two copies of the Offering Circular and each amendment or
supplement thereto signed by an authorized officer of the Company with the
independent accountants' report(s) in the Offering Circular, and any amendment
or supplement containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional written and electronic
copies thereof in such quantities as you may from time to time reasonably
request, and if, at any time prior to the expiration of nine months after the
date of the Offering Circular, any event shall have occurred as a result of
which the Offering Circular as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Offering Circular is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such same
period to amend or supplement the Offering Circular, to notify you and upon your
request to prepare and furnish without charge to each Purchaser and to any
dealer in securities as many written and electronic copies as you may from time
to time reasonably request of an
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amended Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission;
(d) During the period beginning from the date hereof and continuing until
the date six months after the Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of, except as provided and contemplated in the
Offering Circular, any securities of the Company that are substantially similar
to the Notes without the consent of the Purchasers (which consent shall not be
unreasonably withheld or delayed);
(e) Not to be or become, at any time prior to the expiration of three years
after the Time of Delivery, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of Notes, to
furnish at its expense, upon request, to holders of Notes and prospective
purchasers of securities information (the "Additional Issuer Information")
satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(g) To furnish to the holders of the Notes annual financial statements, not
later than 120 days after the Company's fiscal year-end reflecting the assets
and liabilities of the Company on a stand-alone basis;
(h) During a period of five years from the date of the Offering Circular,
to furnish to you such non-confidential information concerning the business and
financial condition of the Company as you may from time to time reasonably
request;
(i) During the period of two years after the Time of Delivery, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144
under the Act) other than Xxxxxxx, Xxxxx & Co. and its affiliates to, resell any
of the Notes which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them;
(j) The Company and MONY shall use their reasonable best efforts to do all
things necessary under the Uniform Commercial Code (the "UCC") and other
applicable law to ensure the security interest in the Collateral created by the
Indenture is perfected and is prior in right to all other security interests;
and
(k) As soon as practicable, the Company will make all necessary filings and
take all necessary steps to perfect the Trustee's security interest in the
Collateral under the UCC and to cause such perfected security interest to be
prior in right to all other security interests.
6. The Company and MONY, jointly and severally, covenant and agree with
the several Purchasers that the Company or MONY will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and MONY's
counsel, accountants and actuaries in connection with the issue of the Notes and
all other expenses in connection with the preparation and printing of the
Preliminary Offering Circular and the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Purchasers and dealers; (ii) the cost of printing or producing any Agreement
among Purchasers, this Agreement, the Indenture, the Insurance Agreement, any
Blue Sky and legal investment memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Notes; (iii) all expenses in connection with
the qualification of the Notes for offering and sale under state securities laws
and insurance securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Purchasers in connection
with such
9
qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Notes; (v) the cost of preparing the Notes; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and any fees and disbursements of counsel
for the Trustee that the Company agrees with the Trustee that it will pay; (vii)
the fees and expenses of Ambac, and its agents and counsel, in connection with
the Indenture and the Notes (including any insurance arrangements in respect
thereof) pursuant to its commitment letter; (viii) the cost and charges of any
transfer agent or registrar; (ix) any travel expenses of the Company's or MONY's
officers and employees and any other expenses of the Company or MONY in
connection with attending or hosting meetings with prospective purchasers of the
Notes; and (x) all other costs and expenses incident to the performance of the
obligations of the Company and MONY hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section and Sections 8 and 11 hereof, the Purchasers
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Notes by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and MONY herein are, and at and as of the Time of
Delivery will be, true and correct, the condition that the Company and MONY
shall have performed in all material respects all of their respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Xxxxxxxx & Xxxxxxxx, counsel for the Purchasers, shall have furnished
to you such written opinions and letter, dated the Time of Delivery, with
respect to the Offering Circular, and such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(b) Xxxxx Xxxxxxxxxx LLP, counsel for the Company and MONY, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly formed and is an existing limited
liability company in good standing under the laws of the State of
Delaware, with the necessary power and authority as a Delaware limited
liability company to own its properties and conduct its business as
described in the Offering Circular;
(ii) MONY has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Offering Circular;
(iii) MONY Life has been duly incorporated and is validly
existing as a stock life insurance company in good standing under the law
of the State of New York, with corporate power and authority to own its
properties and conduct its business as described in the Offering Circular;
(iv) All of the limited liability company interests of the
Company are duly and validly authorized and issued and are fully paid
and non-assessable;
(v) This Agreement and the Registration Rights Agreement each
have been duly authorized, executed and delivered by the Company and MONY;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and MONY and, assuming due authorization,
execution and delivery by the Trustee, and that the Indenture is a valid and
legally binding instrument of the Trustee, enforceable against
10
the Trustee in accordance with its terms, constitutes a valid and legally
binding instrument of each of the Company and MONY, enforceable against MONY and
the Company in accordance with its terms, subject to bankruptcy, insolvency,
rehabilitation, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles;
(vii) The Insurance Agreement has been duly authorized, executed and
delivered by the Company, MONY and MONY Life and, assuming due authorization,
execution and delivery by Ambac, and that the Insurance Agreement is a valid and
legally binding instrument of Ambac, enforceable against Ambac in accordance
with its terms, constitutes a valid and legally binding instrument of each of
the Company, MONY and MONY Life, enforceable against MONY and the Company in
accordance with its terms, subject to bankruptcy, insolvency, rehabilitation,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
(viii) Each of the OB Tax Agreement and the CBB Tax Agreement, each dated
as of April 30, 2002, between the Company and MONY has been duly authorized,
executed and delivered by the Company and MONY and constitutes a valid and
legally binding obligation of each of the Company and MONY enforceable against
MONY and the Company in accordance with its terms, subject to bankruptcy,
insolvency, rehabilitation, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(ix) Each of the Master Agreement (the "Master"), the Schedule thereto
(the "Schedule"; the Master as modified by the Schedule sometimes being referred
to herein as the "Master Agreement Terms") and the confirmation thereunder (the
"Confirmation"), each dated as of April 30, 2002, between the Company and Ambac
Financial Services, L.P. (the "Swap Counterparty") (collectively the "Swap
Agreement") has been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Swap Counterparty and that the
Swap Confirmation is a valid and legally binding instrument of the Swap
Counterparty, enforceable against the Swap Counterparty in accordance with its
terms, subject to bankruptcy, insolvency, rehabilitation, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles, constitutes a
valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
rehabilitation, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles;
(x) The Notes have been duly authorized, executed, issued and delivered
by the Company and, assuming due authentication and delivery by the Trustee in
accordance with the Indenture and payment therefor by the Purchasers as
contemplated hereby, constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture enforceable against
the Company in accordance with their terms, subject to bankruptcy, insolvency,
rehabilitation, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Notes and the Indenture conform in all
material respects to the descriptions thereof in the Offering Circular;
(xi) No regulatory consents, authorizations, approvals or filings are
required to be obtained or made by the Company, MONY or MONY Life under the
Federal laws of the United States or the laws of the State of New York or the
General Corporation Law and UCC of the State of Delaware (i) for the issuance
and sale by the Company of the Notes or (ii) for the entry by the Company, MONY,
MONY Life, as applicable, into this Agreement, the Insurance Agreement the
11
Registration Rights Agreement and the Indenture, as applicable, or the
consummation of the transactions contemplated hereby or thereby, other than such
regulatory consents, authorizations, approvals and filings as have been obtained
or made, and all such regulatory consents, authorizations, approvals and filings
are in full force and effect, except for such regulatory consents,
authorizations, approvals and filings that (i) may be required under state
securities, insurance securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Purchasers, (ii) individually or
in the aggregate, would not affect the validity of the Notes, their insurance or
the transactions contemplated by this Agreement or have a Material Adverse
Effect or (iii) may be required under the Act or the United States Trust
Indenture Act of 1939 in connection with the Registration Rights Agreement;
(xii) The Indenture is effective to create in favor of the Trustee, for
the benefit of the Secured Parties named therein, a valid security interest in
all right, title and interest of the Company in and to the Collateral, as
provided in Section 15.02 of the Indenture, which interest will continue in any
proceeds thereof to the extent, but only to the extent, provided in Sections
9-203 and 9-315 of the applicable UCC and applicable law and principles of
equity, as they may be applied;
(xiii) While any portion of the Collateral is located in a jurisdiction,
the local law of that jurisdiction will govern perfection, the effect of
perfection and nonperfection, and the priority of a possessory security interest
therein;
(xiv) The Trustee's security interest in that portion of the Collateral
other than letter-of-credit rights (except as a supporting obligation) and (as
original collateral) deposit accounts and money may be perfected by filing. The
perfection by filing of the Trustee's security interest in such Collateral is
governed by the local law of the jurisdiction in which the Company is located.
The effect of perfection or nonperfection, and the priority, of such security
interest will be governed (a) in the case of negotiable documents, goods,
instruments, or tangible chattel paper, by the local law of the jurisdiction in
which such Collateral is located, (b) in the case of certificated securities, by
the local law of the jurisdiction in which the security certificates
representing such certificated securities are located, (c) in the case of
uncertificated securities, by the local law of the issuer's jurisdiction as
specified in New York UCC Section 8-110(d), (d) in the case of securities
accounts, by the local law of the securities intermediary's jurisdiction, as
specified in New York UCC Section 8-110(e), and (e) in all other cases, by the
local law of the jurisdiction in which the Company is located;
(xv) To the extent that a security interest in a certificated security or
an uncertificated security exists directly, rather than there existing a
security interest in a security entitlement with respect to such security: (1)
while a security certificate representing any portion of the Collateral
consisting of a certificated security is located in a jurisdiction, the local
law of that jurisdiction will govern perfection of the Trustee's security
interest in such certificated security by any method other than filing; and (2)
the local law of the issuer's jurisdiction as specified in New York UCC Section
8-110(d) will govern the perfection by any method other than filing of the
Trustee's security interest in any portion of the Collateral consisting of an
uncertificated security;
(xvi) The perfection of the Trustee's security interest in that portion of
the Collateral consisting of deposit accounts, and the effect of perfection or
nonperfection and the priority thereof, will be governed by the local law of the
depository bank's jurisdiction, as determined in accordance with New York UCC
Section 9-304. The perfection by any method other than filing of the Trustee's
security interest in that portion of the Collateral consisting of securities
accounts (including all security entitlements carried therein), and the effect
of perfection or nonperfection and the priority thereof, will be governed by the
local law of the securities intermediary's jurisdiction, as determined in
accordance with New York UCC Sections 8-110(e) and 9-305. The
12
perfection of the Trustee's security interest in that portion of the
Collateral consisting of letter-of-credit rights (other than merely as
supporting obligation), and the effect of perfection or nonperfection and the
priority thereof, will be governed by the local law of the issuer's or nominated
person's jurisdiction, as determined in accordance with New York UCC Section
9-306;
(xvii) The Company is "located" in Delaware within the meaning of New York
UCC Section 9-307;
(xviii) To the extent that (a) under the New York UCC, the laws of the
state of Delaware govern the perfection of a security interest in the Collateral
and (b) a security interest therein may be perfected by filing, such security
interest will be perfected under the UCC, as in effect in Delaware, at the later
of such attachment and the filing of a UCC-1 financing statement in the form
attached as an exhibit to such counsel's opinion with the Secretary of State of
the State of Delaware;
(xix) The CBB Tax Agreement and Swap Confirmation constitute "general
intangibles" under Section 9-102(42) of the UCC, as in effect in Delaware, and
the security interests therein may be perfected by filing.
(xx) The Trustee's security interest in that portion of the Collateral
constituting the Debt Service Coverage Account, including the DSCA-Subaccount
CBB, the DSCA-Subaccount OB and the DSCA-Subaccount OB (Deposit), is perfected
under the UCC and the perfection of such security interest will continue as long
as the Trustee continues to be the entitlement holder (as defined in Article 9
of the UCC) or the customer (as defined in Article 4 of the UCC), respectively,
for the securities accounts and deposit accounts that constitute the Debt
Service Coverage Account, including the DSCA-Subaccount CBB, the DSCA-Subaccount
OB and the DSCA-Subaccount OB (Deposit);
(xxi) Neither registration of the Notes under the Act, nor qualification
of the Indenture under the United States Trust Indenture Act of 1939, is
required for (i) the offer and sale of the Notes by the Company to the
Purchasers or (ii) the initial reoffering and resale of the Notes by the
Purchasers, in each case (i) and (ii) in the manner contemplated by this
Agreement and the Offering Circular;
(xxii) Neither the Company, MONY or MONY Life is or, after giving effect
to the offering and sale of the Notes, will be an "investment company", as such
term is defined in the Investment Company Act; and
(xxiii) Statements in the Offering Circular made under the captions
"Description of the Notes" and "Taxation" are true and correct in all material
respects.
Such counsel may exclude any opinion with respect to (a) Collateral
described in paragraph (4) of Section 15.02 of the Indenture (and paragraph (5)
of Section 15.02 of the Indenture, to the extent derived in respect of
Collateral described in paragraph (4)), (b) Collateral consisting of timber to
be cut or as-extracted collateral, or (c) Collateral consisting of goods subject
to a certificate of title; such opinion may also be qualified to the extent that
a statute, regulation, or treaty of the United States preempts the New York UCC
or the Delaware UCC. Such counsel may also make the assumptions and
qualifications set forth in Annex II hereto. In connection with such counsel's
opinion set forth in paragraph (xxi) above, such counsel may rely, among other
things, on the representations, warranties and agreements of the Company, MONY
and the Purchasers in this Agreement as to the absence of any general
solicitation, general advertising or directed selling efforts in connection with
the offering of the Notes and as to certain other matters. In addition, such
counsel may assume that all the offers and sales of the Notes made by the
Purchasers in reliance upon an exemption from the registration requirements of
the Securities Act
13
other than provided by Rule 144A or Rule 903 thereunder have been or will be
made in accordance with the private placement procedures for offerings of this
type, and which include, among other things, procedures reasonably designed to
ensure that such offers and sales are made only to institutional investors
that are "accredited investors" within the meaning of Rule 501 under the
Securities Act.
Such counsel shall also state that nothing that came to such counsel's
attention in the course of its review has caused such counsel to believe that
the Offering Circular, as of its date or as of the Time of Delivery, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may also
state that except as otherwise provided in subsection (xxiii) above, such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Circular. Such counsel may
state that it does not express any opinion or belief as to the financial
statements or other financial data or actuarial data contained in the Offering
Circular. Further, such counsel may also state that it does not express any
opinion or belief with respect to any of the information provided by or
regarding Ambac under the caption "Bond Insurance--Description of the Insurer"
or as to any of the information provided by or regarding Pricewaterhouse Coopers
LLP or Milliman USA contained under the caption "Business--The Closed
Block--Initial Funding of the Closed Block" and "--Sensitivity Analysis of the
Closed Block" or in Appendices A, B and C in the Offering Circular.
Such counsel's opinion may be limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law and
UCC of the State of Delaware.
(c) Xxxx Xxxxxxxx, Senior Vice President and General Counsel to MONY,
shall have furnished to you a written opinion, dated such Time of Delivery, in
form and substance reasonably satisfactory to you to the effect that:
(i) The issuance and sale of the Notes to the Purchasers pursuant
to this Agreement, and the performance by the Company, MONY and MONY Life,
as applicable, of their respective obligations under the Notes, the
lnsurance Agreement, the Indenture, the Swap Confirmation and the
Registration Rights Agreement, will not (i) conflict with or result in a
default under or breach of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company, MONY, MONY Life or any of their respective subsidiaries is a
party or by which the Company, or any of their respective subsidiaries is
bound or to which any of the property or assets of the Company, MONY, MONY
Life or any of their respective subsidiaries is subject, except to the
extent that such defaults or breaches would not have, individually or in
the aggregate, a Material Adverse Effect, (ii) violate the Company's
Limited Liability Company Agreement, MONY Life's Amended and Restated
Charter or Amended and Restated By-Laws, or MONY's Amended and Restated
Certificate of Incorporation or Amended and Restated By-Laws or any Federal
laws of the United States or law of the State of New York, except to the
extent any such violation would not have a Material Adverse Effect or (iii)
violate any order of any court or insurance regulatory agency or other
governmental agency or body of the United States or any state of the United
States known to such counsel having jurisdiction over the Company MONY or
MONY Life or any of their respective subsidiaries, except to the extent
that such a violation would not have, individually or in the aggregate, a
Material Adverse Effect;
(ii) Each of MONY Life and MONY Life Insurance Company of America
("MLOA") is duly licensed as an insurance company in its jurisdiction of
incorporation and is duly licensed or authorized as an insurer in each
other jurisdiction where it is required to be so licensed or authorized to
conduct its business as described in the Offering Circular, in each case
with such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; except as otherwise specifically described in the
Offering Circular, MONY Life and MLOA has all other
14
approvals of and from all insurance regulatory authorities to conduct their
respective businesses, with such exceptions, individually or in the aggregate,
as would not have a Material Adverse Effect; there is no pending or, to the
knowledge of such counsel, threatened action, suit, proceeding or investigation
that would lead to the revocation, termination or suspension of any such
approval, the revocation, termination or suspension of which would have,
individually or in the aggregate, a Material Adverse Effect; and to such
counsel's knowledge except as disclosed in the Offering Circular and other than
pursuant to Section 4207 of the New York Insurance Law and the applicable
requirements of the Ohio and Arizona insurance laws, no insurance regulatory
agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any subsidiary to its parent which would
have, individually or in the aggregate, a Material Adverse Effect;
(iii) To the knowledge of such counsel, each of MONY Life and MLOA is in
compliance in all material respects with the requirements of the insurance laws
and regulations of its respective jurisdiction of incorporation and the
insurance laws and regulations of other jurisdictions which are applicable to
it, and has filed all notices required to be filed thereunder, in each case,
with such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect;
(iv) Each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary
is duly licensed or registered as a broker-dealer or investment advisor, as the
case may be, in each jurisdiction (including the United States) where it is
required to be so licensed or registered to conduct its business, in each case,
with such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; each Broker-Dealer Subsidiary and Investment Advisor
Subsidiary has all other necessary approvals of and from all applicable
regulatory authorities to conduct their respective businesses, in each case with
such exceptions, individually or in the aggregate, as would not have a Material
Adverse Effect; except as otherwise described in the Offering Circular, to such
counsel's knowledge none of the Broker-Dealer Subsidiaries or Investment Advisor
Subsidiaries has received any notification from any applicable regulatory
authority to the effect that any additional approvals from such regulatory
authority are needed to be obtained by such subsidiary in any case where it
could be reasonably expected that (x) any of the Broker-Dealer Subsidiaries or
Investment Advisor Subsidiaries would in fact be required either to obtain any
such additional approvals or cease or otherwise limit engaging in certain
business and (y) the failure to have such approvals or limiting such business
would have a Material Adverse Effect; and each Broker-Dealer Subsidiary and
Investment Advisor Subsidiary is, to the knowledge of such counsel, in
compliance in all material respects with the requirements of the applicable
broker-dealer and investment advisor laws and regulations of each jurisdiction
which is applicable to such subsidiary, and has filed all Notices required to be
filed thereunder, with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect;
(v) To the best of such counsel's knowledge, other than as set forth or
contemplated in the Offering Circular there are no legal proceedings pending to
which the Company, MONY, MONY Life or any of their respective subsidiaries is a
party or of which any property of the Company, MONY, MONY Life or any of their
respective subsidiaries is the subject which, if determined adversely to the
Company, MONY, MONY Life or any of their respective subsidiaries, would
individually or in the aggregate, have a Material Adverse Effect; and to the
best of such counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(vi) Appendix B of the Offering Circular is an accurate and complete copy
of the Closed Block Memorandum filed with and approved by the Insurance
Department of the State of New York in connection with the demutualization of
MONY.
15
Such counsel shall also state that nothing that came to such counsel's
attention in the course of its review has caused such counsel to believe that
the Offering Circular, as of its date or as of the Time of Delivery, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may also
state that such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Circular.
Such counsel may state that he does not express any opinion or belief as to the
financial statements or other financial data or actuarial data contained in the
Offering Circular. Further, such counsel may also state that it does not express
any opinion or belief with respect to any of the information provided by or
regarding Ambac under the caption "Bond Insurance--Description of the Insurer"
or as to any of the information provided by or regarding Pricewaterhouse Coopers
LLP or Milliman USA contained under the caption "Business--The Closed
Block--Initial Funding of the Closed Block" and "--Sensitivity Analysis of the
Closed Block" or in Appendices A, B and C in the Offering Circular.
(d) The General Counsel or Assistant General Counsel of Ambac, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Ambac Assurance is a stock insurance company duly organized and
validly existing under the laws of the State of Wisconsin and duly
qualified to conduct an insurance business in the State of New York. Ambac
Assurance is validly licensed and authorized to issue the Policy and
perform its obligations under the Policy in accordance with the terms
thereof.
(ii) Ambac Assurance has full corporate power and authority to execute
and deliver the Policy and the Policy has been duly authorized, executed
and delivered by Ambac Assurance and constitutes a legal, valid and binding
obligation of Ambac Assurance enforceable in accordance with its terms
except to the extent that the enforceability (but not the validity) of such
obligation may be limited by any applicable bankruptcy, insolvency,
liquidation, rehabilitation or other similar law or enactment now or
hereafter enacted affecting the enforcement of creditors' rights generally
and by general principles of equity.
(iii) The execution and delivery by Ambac Assurance of the Policy will
not, and the consummation of the transactions contemplated thereby and the
satisfaction of the terms thereof will not, conflict with or result in a
breach of any of the terms, conditions or provisions of the Certificate of
Authority, Restated Articles of Incorporation or By-Laws of Ambac
Assurance, or to my knowledge, any restriction contained in any contract,
agreement or instrument to which Ambac Assurance is a party or by which it
is bound or constitute a default under any of the foregoing.
(iv) Proceedings legally required for the issuance of the Policy have
been taken by Ambac Assurance and licenses, orders, consents or other
authorizations or approvals of any governmental boards or bodies legally
required for the enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or approvals not
obtained are not material to the enforceability of the Policy.
(v) The Policy is exempt from registration under the Securities Act
of 1933, as amended.
(vi) To such counsel's knowledge, there is no action, suit or
proceeding pending against or affecting Ambac Assurance in any court, or
before or by any governmental body, which asserts the invalidity or
unenforceability of the Policy.
16
(vii) The statements contained in the Offering Circular under the
heading "Bond Insurance - Description of the Insurer", insofar as such
statements constitute summaries of the matters referred to therein,
accurately reflect and fairly present the information purported to be shown
and, insofar as such statements describe Ambac Assurance, fairly and
accurately describe Ambac Assurance, other than any financial or
statistical information contained or incorporated by reference therein, as
to which such counsel expresses no opinion.
(viii) Ambac Assurance is authorized to deliver the Insurance
Agreement and the Indemnification Agreement, and each of the Insurance
Agreement and the Indemnification Agreement has been duly executed and is
the valid and binding obligation of Ambac Assurance enforceable in
accordance with its terms except to the extent that the enforceability (but
not the validity) of such obligation may be limited by any applicable
bankruptcy, insolvency, liquidation, rehabilitation or other similar law or
enactment now or hereafter enacted affecting the enforcement of creditors'
rights and by general principles of equity and subject to principles of
public policy limiting the right to enforce the indemnification provisions
contained therein.
(e) Cadwalader, Xxxxxxxxxx & Xxxx, counsel for the Swap Counterparty, shall
have furnished to you their written opinion, dated the Time of Delivery,
pursuant to the Swap Agreement;
(f) On the date of the Offering Circular at a time prior to the execution
of this Agreement and also at the Time of Delivery, PricewaterhouseCoopers LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you;
(g) (i) None of the Company, MONY and MONY Life or any of their respective
subsidiaries shall have sustained since the date of the latest audited financial
statements included in the Offering Circular any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance (excluding, for the avoidance of doubt, any insurance underwriting
losses of MONY Life or its subsidiaries), or from any labor dispute or court or
governmental action, order or decree, in each case other than as set forth or
contemplated in the Offering Circular, and (ii) since the respective dates as of
which information is given in the Offering Circular there shall not have been
any material decrease in the capital or surplus of MONY, any material decrease
in the capital of the Company or any material increase in the consolidated
long-term debt of the Company or MONY or any material adverse change, or any
development involving a prospective change, in or affecting the business,
management, financial position, shareholders' or members' equity or results of
operations of the Company, MONY and MONY Life and their respective subsidiaries,
considered as a whole, in each case other than as set forth or contemplated in
the Offering Circular, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Purchasers so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Offering Circular;
(h) On or after the date hereof, except as set forth or contemplated in the
Offering Circular and except for a downgrade of MONY's senior debt and long-term
issuer ratings from A- to BBB+ by Fitch, (i) no downgrading shall have occurred
in the rating accorded any debt security or preferred stock of the Company, MONY
and MONY Life or any of their respective subsidiaries or the financial strength
or claims paying ability of the Company, MONY and MONY Life or any of their
respective subsidiaries by A.M. Best & Co. or any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt security or preferred stock or the
financial strength or the claims paying ability of the Company, MONY and MONY
Life or any of their respective subsidiaries and (iii) the Company shall have
received letters confirming the ratings of the Notes as set forth in the
Offering Circular from Xxxxx'x Investors Service, Inc. and Standard & Poor's
Rating Services;
17
(i) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in MONY's securities on the New York Stock Exchange; (iii)
a general moratorium on commercial banking activities declared by either Federal
or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or the
occurrence of any other calamity or crisis (v) the occurrence of any other
material adverse change in the existing financial, political or economic
conditions in the United States or elsewhere, if the effect of such event
specified in this clause (iv) or (v) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Offering Circular;
(j) The Company and MONY shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of Offering Circulars on the New York
Business Day next succeeding the date of this Agreement;
(k) The Company and MONY Life shall each have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of the Company
and MONY Life satisfactory to you as to the accuracy of the representations and
warranties of the Company and MONY Life, respectively, herein at and as of the
Time of Delivery, as to the performance by the Company and MONY Life,
respectively, of all of their respective obligations hereunder to be performed
at or prior to the Time of Delivery, as to the matters set forth in this Section
and as to such other matters as you may reasonably request; and
(l) The Company and MONY shall have executed an Exchange and Registration
Rights Agreement in a form reasonably satisfactory to the Purchasers.
8. (a) The Company and MONY Life, jointly and severally, will indemnify
and hold harmless each Purchaser against any losses, claims, damages or
liabilities, joint or several, to which such Purchaser may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Offering Circular or the Offering Circular, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor MONY Life shall be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Offering Circular or the Offering
Circular or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Purchaser through
Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company or MONY
Life, as applicable, against any losses, claims, damages or liabilities to which
the Company or MONY Life, as applicable, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Circular or the Offering Circular, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Offering Circular or the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Purchaser through Xxxxxxx, Xxxxx & Co. expressly for use
therein; and will
18
reimburse the Company or MONY Life, as applicable for any legal or other
expenses reasonably incurred by the Company or MONY Life, as applicable in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
under such subsection except to the extent that the indemnifying party is
actually prejudiced by the failure to give such notice. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party (which consent shall
not be unreasonably withheld or delayed), be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and MONY Life on the one hand and the Purchasers on the other
from the offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and MONY Life
on the one hand and the Purchasers on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and MONY
Life on the one hand and the Purchasers on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Purchasers, in each case as set forth
in the Offering Circular. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or MONY Life on the one hand or
the Purchasers on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, MONY Life and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in
19
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to investors were
offered to investors exceeds the amount of any damages which such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Purchasers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and MONY Life under this Section 8 shall
be in addition to any liability which the Company and MONY Life may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Purchaser within the meaning of the Act; and the
obligations of the Purchasers under this Section 8 shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
or MONY Life and to each person, if any, who controls the Company or MONY Life
within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Notes which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Notes on the
terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Notes, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Notes on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Notes, or the Company notifies you that it has so arranged for the purchase
of such Notes, you or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Offering Circular, or in any other
documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Offering Circular which in your opinion may thereby be made
necessary. The term "Purchaser" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Purchaser or Purchasers by you and the Company as provided
in subsection (a) above, the aggregate principal amount of such Notes which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Notes, then the Company shall have the right to require each
non-defaulting Purchaser to purchase the principal amount of Notes which such
Purchaser agreed to purchase hereunder and, in addition, to require each
non-defaulting Purchaser to purchase its pro rata share (based on the principal
amount of Notes which such Purchaser agreed to purchase hereunder) of the Notes
of such defaulting Purchaser or Purchasers for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Purchaser from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Purchaser or Purchasers by you and the Company as provided
in subsection (a) above, the aggregate principal amount of Notes which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Notes, or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Purchasers to purchase Notes of a defaulting
Purchaser or Purchasers, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Purchaser or the Company or MONY,
except for the expenses to be borne by the Company and MONY, on the one hand,
and the Purchasers, on the other, as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
20
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and MONY Life and the several Purchasers, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company or
MONY Life, or any officer or director or controlling person of the Company or
MONY Life, and shall survive delivery of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor MONY Life shall then be under any liability to any
Purchaser except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Notes are not delivered by or on behalf of the Company as provided
herein, the Company and MONY Life, jointly and severally, will reimburse the
Purchasers through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Notes, but neither the Company nor MONY Life shall then be under any further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Xxxxxxx, Sachs & Co. on behalf of you as the Purchasers.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail or
facsimile transmission to you as the Representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company or MONY shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: General Counsel of MONY Life; provided, however, that any
notice to a Purchaser pursuant to Section 8(c) hereof shall be delivered or sent
by mail or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, which address will be supplied to the Company by
you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company, MONY and, to the extent provided in Sections 8
and 10 hereof, the officers and directors of the Company and MONY and each
person who controls the Company, MONY or any Purchaser, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Notes from any Purchaser shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of laws rules
of such state.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
17. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Purchasers imposing any limitation of any kind.
21
If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Purchasers, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Purchasers and the Company and MONY. It is understood that your acceptance of
this letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
MONY Holdings, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
MONY Life Insurance Company
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
and General Counsel
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
On behalf of each of the Purchasers
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------------
(Xxxxxxx, Sachs & Co.)
SCHEDULE I
Principal
Amount of
Securities
to be
Purchaser Purchased
--------- ----------
Xxxxxxx, Xxxxx & Co......................... $ 201,000,000
Credit Suisse First Boston Corporation ..... $ 29,700,000
Advest Inc. ................................ $ 19,800,000
XX Xxxxxx Securities Inc. .................. $ 19,800,000
Xxxxxxx Xxxxx Xxxxxx Inc. .................. $ 19,800,000
Fleet Securities Inc. ...................... $ 9,900,000
Total .................... -------------
$ 300,000,000
=============
23
ANNEX I
(1) The Notes have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Purchaser represents that it has offered and sold the Notes, and will
offer and sell the Notes (i) as part of their distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the offering and
the Time of Delivery, only in accordance with Rule 903 of Regulation S or Rule
144A or pursuant to Paragraph 2 of this Annex I under the Act. Accordingly, each
Purchaser agrees that neither it, its affiliates nor any persons acting on its
or their behalf has engaged or will engage in any directed selling efforts with
respect to the Notes, and it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Each Purchaser agrees that,
at or prior to confirmation of sale of Notes (other than a sale pursuant to Rule
144A) or pursuant to Paragraph 2 of this Annex I, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Act. Terms used
above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not
enter into any contractual arrangement with respect to the distribution or
delivery of the Notes, except with its affiliates or with the prior written
consent of the Company.
(2) Notwithstanding the foregoing, Notes in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (a) it has not
offered or sold and, prior to the expiry of a period of six months from the
issue date of the Notes, will not offer or sell any Notes to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Xxx 0000 (FSMA)) received by it in connection with the issue or sale of any
Notes in circumstances in which section 21(1) of the FSMA does not apply to the
Company, and (c) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom.
(4) Each Purchaser agrees that the Notes have not been registered under
the Securities and Exchange Law of Japan and are not being offered or sold and
may not be offered or sold, directly or indirectly, in Japan or to or for the
account of any resident of Japan, except (a) pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan and (b) in
compliance with any other applicable requirements of Japanese law.
(5) Each Purchaser agrees that it will not offer, sell or deliver any
of the Notes in any jurisdiction outside the United States except under
circumstances that will result to the best of such Purchaser's knowledge in
compliance with the applicable laws thereof, and that it will take at its own
expense whatever action is required to permit its purchase and resale of the
Notes in such jurisdictions. Each Purchaser understands that no action has been
taken to permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose. Each Purchaser agrees not to
cause any advertisement of the Notes to be published in any newspaper or
periodical or posted in any public place and not to issue any circular relating
to the Notes, except in any such case with Xxxxxxx, Xxxxx & Co.'s express
written consent and then only at its own risk and expense.
2
Annex II
(a) Assumptions
(i) We have assumed that the Swap Counterparty is an eligible contract
participant, as that term is defined in Section 1a(12) of the Commodity Exchange
Act.
(b) Qualifications
(i) We express no opinion as to the prohibition on transfers in Section
7(a) of the Master Agreement Terms to the extent that its operation in a
particular case would conflict with Section 9-406(d) of the Uniform Commercial
Code as in effect in the State of New York.
(ii) We express no opinion as to the enforceability against the Company of
Section 2(a)(iii) of the Swap Agreement at a time when the Company has no
further payment or delivery obligations (contingent or other) under the Swap
Agreement.
(iii) We express no opinion as to the enforceability against the Company of
Section 6(e) of the Master Agreement Terms to the extent that the Market
Quotation approach to the calculation of an early termination settlement payment
would obligate a party, on termination of the Agreement, to pay an amount in
excess of that measured by the lowest quotation from a Reference Market-maker.
3
