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EXHIBIT 4.4
NOTE AGREEMENT (this "Note")
made as of March 3, 1999, between XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, a
trust company with full banking powers
organized under the laws of the State of
New York (the "Bank") and U.S. BANK
TRUST NATIONAL ASSOCIATION (formerly
known as First Trust Of New York,
National Association), as Property
Trustee (the "Property Trustee") of X.X.
XXXXXX INDEX FUNDING COMPANY I, a
Delaware statutory business trust (the
"Trust").
WHEREAS, the Trust has issued and sold certain of its common
trust securities (the "Common Securities") having an aggregate initial principal
amount of $702 and certain of its preferred trust securities (the "Preferred
Securities") having an aggregate initial principal amount of $70,200,000 and,
in each case paying no dividends, and with such rights, preferences, privileges,
limitations and restrictions as are set forth in a declaration supplement dated
February 25, 1999 (the "Declaration Supplement") to that certain Amended and
Restated Declaration of Trust dated as of March 26, 1998 (as amended, the
"Declaration") among the Sponsor, the Regular Trustees, the Property Trustee,
the Delaware Trustee and the holders from time to time of securities of the
Trust, providing for the issuance of such series of Preferred Securities and
related Common Securities; and
WHEREAS, the Trust desires to loan the proceeds of such
issuance and sale of Preferred Securities and Common Securities (collectively,
the "Related Securities") to the Bank on the terms and conditions set forth
herein, which terms and conditions shall substantially mirror the Trust's
obligations under the Related Securities.
NOW, THEREFORE, in consideration of the loan of such proceeds,
which the Bank hereby acknowledges to be adequate and sufficient, the Bank
executes and delivers this Note for the benefit of the Property Trustee on
behalf of the holders from time to time of the Related Securities.
1. General. (a) This Note is a duly authorized debt security
of the Bank, designated as its Note Due March 4, 2002 (the "Stated Maturity") in
an initial principal amount of $70,200,702.
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(b) THIS NOTE IS NOT A DEPOSIT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
(c) This Note is non-transferable and shall be registered in
the name of U.S. Bank Trust National Association, as Property Trustee, for the
benefit of the holders from time to time of the Related Securities. The Property
Trustee may (to the fullest extent permitted by applicable laws) be treated at
all times, by all persons and for all purposes as the absolute owner of this
Note regardless of any notice of ownership, theft or loss or of any writing
thereon.
2. Payments and Paying Agencies. (a) The amount of principal
payable at any time upon any redemption or at the Stated Maturity of this Note,
as applicable, shall be the aggregate outstanding principal amount payable at
the applicable time with respect to all Related Securities the proceeds of the
sale of which were loaned to the Bank in consideration of this Note, determined
in accordance with the Declaration Supplement relating thereto, attached hereto
as Annex I.
(b) No interest shall accrue on this Note.
(c) The Bank hereby promises to pay all amounts referred to in
paragraphs (a) of this Section 2 when and as the corresponding amounts are due
and payable by the Trust to the holders of Related Securities pursuant to the
terms thereof. Principal of this Note will be payable against surrender of this
Note at the office of the Paying Agent (as defined in the Declaration) located
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
3. Redemption. This Note matures on the Stated Maturity and
will be subject to redemption prior to maturity as described below.
The Trust shall have the right to put the principal amount of
this Note for redemption prior to each March 4 of each year prior to the Stated
Maturity in an aggregate principal amount sufficient to allow the Trust to pay
to any or all of the holders of the Preferred Securities who have exercised
their right to redeem the Preferred Securities and, if applicable, a pro rata
portion of the related Common Securities, an amount equal to the Early
Redemption Value (as defined in the Prospectus Supplement described below). In
addition, within 90 days following the occurrence and during the continuance of
certain tax-related
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events (a "Tax Event") or events related to the Investment Company Act of 1940,
as amended (an "Investment Company Event", and together with a Tax Event, a
"Special Event"), the Bank shall have the right to redeem this Note in whole or
in an amount sufficient to cause the discontinuance of such Special Event, in
either case in cash, or, in the case of a Tax Event, to allow this Note to
remain outstanding and to indemnify the Trust for any taxes payable by the Trust
as a result of such Tax Event. In the event that the Bank shall redeem this Note
in whole or in part, the Trust will redeem a principal amount of the Preferred
Securities and the related Common Securities equal to the principal amount of
this Note so redeemed. If a Tax Event shall have occurred and be continuing and
X.X. Xxxxxx & Co. Incorporated ("X.X. Xxxxxx") shall have elected to direct the
Bank to allow this Note to remain outstanding and provided that the Trust shall
received indemnification by X.X. Xxxxxx for all taxes payable by the Trust as a
result of such Tax Event, then the Trust may allow the Preferred Securities and
the related Common Securities to remain outstanding. Notwithstanding the
foregoing, if there is available to the Trust the opportunity to eliminate,
within such 90-day period, the Special Event by taking some ministerial action,
such as filing a form or making an election, or pursuing some other similar
reasonable measure, that has no adverse effect on the Trust, X.X. Xxxxxx, the
Bank or the holders of the Preferred Securities, the Trust will pursue such
measure in lieu of redemption; provided that the Bank shall have no right to
redeem this Note while the Trust is pursuing any such ministerial action or
reasonable measure unless the Special Event shall not have been so eliminated by
the 85th day following the occurrence thereof, in which case X.X. Xxxxxx shall
be permitted to direct the Bank to provide, and the Bank shall be permitted to
so provide, notice to the Trust of the redemption of this Note. The parties
hereto agree that the terms Tax Event and Investment Company Event shall have
the meanings assigned to such terms in the Prospectus Supplement dated February
25, 1999 (the "Prospectus Supplement") relating to the Preferred Securities and
filed with the Securities and Exchange Commission (the "SEC") to the Prospectus
dated July 14, 1998 and filed with the SEC (Registration Nos. 333-38633 and 333-
38633-01) and that such definitions are hereby incorporated herein by reference
and made a part of this Note.
In the event of a Market Disruption Event (as defined in the
Prospectus Supplement and incorporated herein by reference), under certain
circumstances, payment of the Redemption Value (as defined in the Prospectus
Supplement) to the holder of the Preferred Securities could be delayed
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for an indefinite period. If such circumstances occur, the Stated Maturity of
this Note would be similarly delayed.
4. The indebtedness evidenced by this Note, including the
principal, is pari passu with all unsecured, unsubordinated creditors of the
Bank.
The holder of this Note by its acceptance hereof agrees to and
shall be bound by the provisions of this paragraph 4.
5. Events of Default. The occurrence of any of the following
events shall constitute an event of default (herein referred to as an "Event of
Default") hereunder with respect to this Note:
(a) default in the due and punctual payment of
the principal of this note as and when the same shall
become due and payable; or
(b) default on the part of the Bank in the performance of any
other of the covenants or agreements on its part in this Note or in the
Fiscal and Paying Agency Agreement dated April 22, 1991, which default
continues for a period of 90 days after the date on which written
notice, by registered or certified mail, of such failure requiring the
Bank to remedy the same shall have been received by the Bank from the
Trust specifying such failure and requiring the same to be remedied and
stating that such is a "notice of default" hereunder; or
(c) decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency proceedings,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of the Bank or of all or substantially all of its property,
or for the winding-up or liquidation of its affairs, shall have been
entered, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(d) the Bank shall have consented to the appointment of a
conservator or receiver or liquidator, in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of the Bank or of all or substantially all of its property; or
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(e) the Bank shall have filed a petition to take advantage of
any applicable insolvency or reorganization statute or voluntarily
generally suspended payment of its obligations.
In case one or more of the Events of Default specified above
shall have occurred and be continuing with respect to this Note, then and in
each and every such case, unless all the principal of this Note is due and
payable immediately, upon the declaration of the Trust the same shall become and
shall be immediately due and payable, anything contained in this Note to the
contrary notwithstanding. In case the Trust shall have proceeded to enforce any
right as set forth herein and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Trust,
then and in every such case the Bank and the Trust shall be restored to their
respective several positions and rights hereunder, and all rights, remedies and
powers of the Bank and the Trust shall continue as though no such proceeding had
been taken.
The Trust shall be entitled to file such proof of claim,
claim, petition or other document as may be necessary or advisable in order to
have the claims of such holder allowed in any insolvency proceedings,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities, liquidation, winding- up or other similar proceedings
of the Bank as a whole or affecting its property.
6. Certain Covenants of the Bank. The Bank hereby agrees that,
for so long as this Note shall remain outstanding:
(a) The Bank will maintain an office or agency in the Borough
of Manhattan, The City of New York, where this Note may be presented
for payment and notices and demands to or upon the Bank in respect of
this Note may be served; and
(b) The Bank will not merge or consolidate with or sell or
convey all or substantially all of its assets as an entirety to any
other corporation or association, unless (i) either (A) the Bank shall
be the surviving corporation in the case of a merger or (B) the
surviving, resulting or transferee corporation or association (the
"successor corporation") shall expressly assume the due and punctual
payment of the principal of this Note, according to its tenor and the
due and punctual performance of all of the covenants
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and obligations of the Bank under this Note and (ii) the Bank or such
successor corporation, as the case may be, shall not, immediately after
such merger, consolidation, sale or conveyance, be in default in the
performance of any covenants or obligations of the Bank under this
Note.
Upon any merger, consolidation, sale or conveyance as provided
above, the successor corporation shall succeed to and be substituted for, and
may exercise every right and power of and be subject to all the obligations of
the Bank under this Note with the same effect as if the successor corporation
had been named as the Bank herein and, in the case of any such sale or
conveyance of assets, the Bank shall be released from its liability as obligor
under this Note.
7. Replacement of Note. (a) In case this Note shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Bank shall
execute and the office of the Paying Agent shall authenticate and deliver a new
Note in exchange and substitution for the mutilated or defaced Note, or in lieu
and in substitution for the apparently destroyed, lost or stolen Note. In every
such case the Trust shall furnish to the Paying Agent such security or indemnity
as may be required by them to indemnify and defend and to save each of them and
any agent of the Paying Agent harmless and, in every case of destruction, loss
or theft evidence to their satisfaction of the apparent destruction, loss or
theft of such Note and of the ownership thereof. Upon the issuance of any
substitute Note, Paying Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith.
8. Modifications and Amendments; Waiver. Modifications and
amendments to these Terms and Conditions may be made without the consent of the
holders of the Preferred Securities, to: (1) evidence succession of another
corporation or association to the Bank and the assumption by such a party of the
obligations of the Bank under this Note in the event in the event of a merger,
consolidation or sale of assets in accordance with the terms hereof; (2) add
further covenants, restrictions or conditions for the protection of holders of
this Note; (3) reduce or increase the principal amount hereof solely with
respect to the portion of this Note relating to the Common Securities of the
Trust; or (4) cure ambiguities or correct this Note in case of defects or
inconsistencies in the provisions hereof or supplement this Note with other
provisions, so long as any such cure, correction or supplement does not
adversely
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affect the interest of the holder of this Note in any material respect. The Bank
and the Property Trustee may, with the consent of the holders of not less than a
majority in principal amount of the outstanding Preferred Securities, enter into
written modifications to this Note; provided, that no such amendment may,
without the consent of the all holders of all Preferred Securities, (1) reduce
the amount of Preferred Securities the holders of which must consent to any
amendment, supplement or waiver of this Note, (2) extend the final maturity of
this Note or reduce the principal amount hereof (except as provided in the
previous sentence), (3) alter the method of calculation of the amount paid at
final maturity hereof or (4) make the principal hereof payable in any coin or
currency other than that provided in this Note. Any modifications or amendments
to these Terms and Conditions as provided in the clauses above will be
conclusive and binding on the holder of this Note, whether or not its has given
consent.
No provision of this Note shall alter or impair the obligation
of the Bank, which is absolute and unconditional, to pay the principal of this
Note at the places, at the respective times and in the coin or currency herein
prescribed.
9. Non-business Days. In any case where the date of maturity
of the principal of this Note shall be, in the Borough of Manhattan, The City of
New York, a Saturday, a Sunday, a legal holiday or a day on which banking
institutions are authorized or obligated by law to close, then payment of
principal of this Note need not be made on such date at such place but may be
made on the next succeeding day which, in the Borough of Manhattan, The City of
New York, is not a Saturday, a Sunday, a legal holiday or a day on which banking
institutions are authorized or obligated by law to close, with the same force
and effect as if made on the date of maturity of the principal of, this Note.
10. Governing Law; Counterparts. (a) This Note shall be
construed in accordance with and governed by the laws of the State of New York.
(b) This note may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract.
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11. Descriptive Headings. The descriptive headings appearing
in these Terms and Conditions are for the convenience of reference only and
shall not alter, limit or define the provisions hereof.
IN WITNESS WHEREOF, this Note Agreement is executed and
delivered as of the date first above written.
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
by:/s/ Xxxx X. Xxxxxxx
____________________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Property
Trustee,
by:/s/ Xxxxxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
