EXHIBIT 4.1
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MONY Holdings, LLC,
as Issuer,
AND
Ambac Assurance Corporation,
AND
The MONY Group Inc., solely for the limited purposes set forth in Sections 6.06,
11.05, 11.10(1) and 11.13(22),
TO
Bank One Trust Company, N.A.
as Trustee
------------
Indenture
------------
Dated as of April 30, 2002
$300,000,000
Series A Floating Rate Insured Notes due January 21, 2017
Additional Floating Rate Insured Notes
Additional Fixed Rate Insured Notes
TABLE OF CONTENTS
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PAGE
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Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................1
Section 1.01. Definitions........................................................................1
Section 1.02. Form of Documents Delivered to Trustee and the Insurer............................22
Section 1.03. Acts of Holders; Record Dates.....................................................22
Section 1.04. Notices, Etc., to Trustee, Company and Insurer....................................24
Section 1.05. Notice to Holders.................................................................25
Section 1.06. Waiver............................................................................25
Section 1.07. Conflict with TIA.................................................................25
Section 1.08. Effect of Headings and Table of Contents..........................................25
Section 1.09. Successors and Assigns............................................................26
Section 1.10. Severability Clause...............................................................26
Section 1.11. Benefits of Indenture.............................................................26
Section 1.12. Governing Law.....................................................................26
Section 1.13. Business Day Convention...........................................................26
Section 1.14. Non-Petition Clause...............................................................26
Article Two NOTE FORMS..................................................................................27
Section 2.01. Forms Generally...................................................................27
Section 2.02. Form of Legends...................................................................28
Section 2.03. Form of Legend for Global Notes...................................................29
Section 2.04. Form of Trustee's Certificate of Authentication...................................30
Article Three THE NOTES.................................................................................30
Section 3.01. Title and Terms...................................................................30
Section 3.02. Denominations.....................................................................31
Section 3.03. Execution, Authentication, Delivery and Dating....................................31
Section 3.04. Temporary Notes...................................................................31
Section 3.05. Tax Treatment.....................................................................32
Section 3.06. Registration; General Provisions Relating to Transfer and Exchange; Exchange
of Exchange Notes for Original Notes..............................................32
Section 3.07. Restrictions on Transfer..........................................................35
Section 3.08. Mutilated, Destroyed, Lost and Stolen Notes.......................................39
Section 3.09. Payment of Principal and Interest.................................................39
Section 3.10. Persons Deemed Owners.............................................................40
Section 3.11. Cancellation......................................................................41
Section 3.12. CUSIP, ISIN and Common Code Numbers...............................................41
Article Four DEBT SERVICE COVERAGE ACCOUNT..............................................................41
Section 4.01. Establishment of Debt Service Coverage Account....................................41
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Section 4.02. Initial Deposit in DSCA-Subaccount OB.............................................42
Section 4.03. Deposits in the DSCA-Subaccount CBB...............................................42
Section 4.04. Provision of Information by the Company...........................................43
Section 4.05. Withdrawal and Application of Funds...............................................45
Section 4.06. Statement of Account..............................................................48
Section 4.07. Inter-Business Loans..............................................................49
Section 4.08. Subaccount OB Deposits............................................................49
Section 4.09. Investment of Funds in Debt Service Coverage Account..............................51
Section 4.10. Deficiency of Funds in Debt Service Coverage Account..............................51
Section 4.11. Additional Reserve Account........................................................53
Article Five SATISFACTION AND DISCHARGE.................................................................55
Section 5.01. Satisfaction and Discharge of Indenture...........................................55
Section 5.02. Application of Money in the Debt Service Coverage Account and the Escrow Account..56
Article Six REMEDIES ...................................................................................56
Section 6.01. Events of Default.................................................................56
Section 6.02. Acceleration of Maturity; Rescission and Annulment; Foreclosure...................58
Section 6.03. Suits for Enforcement by Trustee..................................................60
Section 6.04. Remedies Regarding Collateral; Application of Proceeds............................60
Section 6.05. Application of Moneys Collected...................................................61
Section 6.06. Limited Recourse..................................................................63
Section 6.07. Trustee May File Proofs of Claim..................................................64
Section 6.08. Trustee May Enforce Claims Without Possession of Notes............................64
Section 6.09. Limitation on Suits...............................................................65
Section 6.10. Unconditional Right of Holders to Receive Principal and Interest..................65
Section 6.11. Restoration of Rights and Remedies................................................66
Section 6.12. Remedies Not Exclusive............................................................66
Section 6.13. Delay or Omission Not Waiver......................................................66
Section 6.14. Control of Proceedings............................................................66
Section 6.15. Waiver of Past Defaults...........................................................67
Section 6.16. Undertaking for Costs.............................................................67
Section 6.17. Waiver of Usury, Stay or Extension Laws...........................................67
Section 6.18. Trigger Events....................................................................68
Section 6.19. Subrogation of Insurer............................................................69
Article Seven THE TRUSTEE...............................................................................69
Section 7.01. Certain Duties and Responsibilities...............................................69
Section 7.02. Notice of Defaults................................................................71
Section 7.03. Certain Rights of Trustee.........................................................71
Section 7.04. Not Responsible for Recitals or Issuance of Notes.................................72
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Section 7.05. May Hold Notes....................................................................72
Section 7.06. Money Held in Trust...............................................................73
Section 7.07. Compensation and Reimbursement....................................................73
Section 7.08. Disqualification; Conflicting Interests...........................................73
Section 7.09. Corporate Trustee Required; Eligibility...........................................73
Section 7.10. Resignation and Removal; Appointment of Successor.................................74
Section 7.11. Acceptance of Appointment by Successor............................................75
Section 7.12. Merger, Conversion, Consolidation or Succession to Business.......................76
Section 7.13. Preferential Collection of Claims Against Company.................................76
Section 7.14. Appointment of Authenticating Agent...............................................76
Article Eight HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY..........................................78
Section 8.01. Company to Furnish Trustee Names and Addresses of Holders.........................78
Section 8.02. Preservation of Information; Communications to Holders............................78
Section 8.03. Reports by Trustee................................................................79
Section 8.04. Reports by Company................................................................79
Article Nine CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE; CLOSED BLOCK REINSURANCE.............81
Section 9.01. Company May Consolidate, Etc., Only on Certain Terms..............................81
Section 9.02. Successor Substituted.............................................................82
Section 9.03. Closed Block Reinsurance..........................................................82
Article Ten SUPPLEMENTAL INDENTURES.....................................................................84
Section 10.01. Supplemental Indentures Without Consent of Holders................................84
Section 10.02. Supplemental Indentures With Consent of Holders...................................85
Section 10.03. Execution of Supplemental Indentures..............................................86
Section 10.04. Effect of Supplemental Indentures.................................................87
Section 10.05. Conformity with TIA...............................................................87
Section 10.06. Reference in Notes to Supplemental Indentures.....................................87
Article Eleven COVENANTS................................................................................87
Section 11.01. Payment of Notes..................................................................87
Section 11.02. Maintenance of Office or Agency...................................................88
Section 11.03. Money for Note Payments to Be Held in Trust.......................................88
Section 11.04. Statement by Officers as to Default...............................................90
Section 11.05. Existence.........................................................................90
Section 11.06. Business of the Company, MONY Life and its Subsidiaries...........................91
Section 11.07. Maintenance of Properties.........................................................93
Section 11.08. Payment of Taxes and Other Claims.................................................93
Section 11.09. Limitation on Indebtedness........................................................94
Section 11.10. Limitations Relating to the Closed Block Business.................................94
Section 11.11. Dividends.........................................................................96
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Section 11.12. Management of Closed Block, Surplus and Related Assets and Debt Service
Coverage Account. ................................................................96
Section 11.13. Non-Consolidation.................................................................97
Section 11.14. Waiver of Certain Covenants.......................................................99
Article Twelve REDEMPTION OF NOTES.....................................................................100
Section 12.01. Right of Redemption by the Company...............................................100
Section 12.02. Redemption by the Company by Action of the Insurer...............................100
Section 12.03. Redemption Due to Sale of All or Substantially All of Closed Block Business......100
Section 12.04. Redemption Due to Change of Control..............................................100
Section 12.05. Election to Redeem; Notice to Trustee............................................101
Section 12.06. Notice of Redemption.............................................................101
Section 12.07. Deposit of Redemption Price......................................................102
Section 12.08. Notes Payable on Redemption Date.................................................102
Section 12.09. Notes Redeemed in Part...........................................................102
Section 12.10. Release of Company...............................................................103
Article Thirteen DEFEASANCE............................................................................103
Section 13.01. Company's Option to Effect Defeasance............................................103
Section 13.02. Defeasance and Discharge.........................................................103
Section 13.03. Conditions to Defeasance.........................................................104
Section 13.04. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions. .......................................................106
Section 13.05. Reinstatement....................................................................106
Article Fourteen DIVIDEND ALLOCATION...................................................................107
Section 14.01. Dividend Allocation..............................................................107
Article Fifteen COLLATERAL AND SECURITY................................................................109
Section 15.01. Obligations Secured Hereby.......................................................109
Section 15.02. Collateral.......................................................................110
Section 15.03. Management of Swaps and Tax Agreements Prior to Event of Default.................111
Section 15.04. Perfection of Security Interest in Collateral....................................111
Section 15.05. Continuing Security Interest; Termination........................................112
Section 15.06. Protection of Collateral.........................................................112
Section 15.07. Performance of Obligations.......................................................113
Section 15.08. Further Assurances...............................................................113
Section 15.09. Power of Attorney................................................................114
Section 15.10. No Pledge of Collateral to Others................................................114
Section 15.11. No Change in Issuer's Name, Structure or Office..................................114
Section 15.12. Release of Collateral............................................................115
EXHIBITS
Exhibit A Form of Series A Note
Exhibit B Certificate for Transfer for Restricted Certificated and Restricted Global Notes
Exhibit C-1 Certificate for Transfers from Restricted Global Note to Temporary Regulation S
Global Note
Exhibit C-2 Certificate for Transfers from Restricted Global Note to Regulation S Global Note
Exhibit C-3 Certificate for Transfers from Temporary Regulation S Global Note or Regulation
S Global Note to Restricted Global Note
Exhibit C-4 Certificate for Transfers from Restricted Certificated Note to Restricted Global
Note
Exhibit C-5 Certificate for Transfers from Restricted Certificated Note to Regulation S
Global Note
Exhibit C-6 Certificate for Transfers from Restricted Certificated Note to Temporary
Regulation S Global Note
Exhibit C-7 Certificate from Owner of Beneficial Interest in a Temporary Regulation S Global
Note
Exhibit C-8 Certificate from Transferee of Beneficial Interest in a Temporary Regulation S
Global Note
Exhibit C-9 Certificate from Euroclear or Clearstream to Trustee, as Notes Registrar, for
Exchange of Beneficial Interest in Temporary Regulation S Global Note
Exhibit D Investment Policy Statement for Surplus and Related Assets
Exhibit E Investment Policy Statement for the Debt Service Coverage Account
Exhibit F Closed Block Business Administrative Payments
Exhibit G Expenses of MONY Holdings to be paid from Debt Service Coverage Account
Exhibit H Schedule of Projected Closed Block Asset/Liability Ratios
Exhibit I Form of Statement of Account
Exhibit J Form of Notice of Due Payments
Exhibit K Form of Notice of Due Tax Payments
Exhibit L Form of Notice of Required Account Deposit
Exhibit M Form of Notice of Account Deposit
Exhibit N Form of Notice of Current Ratings
Exhibit O Form of Subordination Provisions
Exhibit P Form of Notice of Glide Path Actual Ratio
Exhibit Q Form of Supplemental Indenture relating to Issuance of Additional Notes
Exhibit R Cross-references to the Trust Indenture Act
Annex A Modification to Statutory Accounting Principles for Use in Determining Closed
Block Business Surplus
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INDENTURE, dated as of April 30, 2002, among MONY Holdings,
LLC, a limited liability company duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Number (000) 000-0000,
Ambac Assurance Corporation, an insurance company incorporated under the laws of
the State of Wisconsin (herein called the "Insurer"), The MONY Group Inc., a
company duly incorporated under the laws of the State of Delaware (herein called
"MONY Group"), solely for the limited purposes set forth herein, and Bank One
Trust Company, N.A., a national banking association, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for (i) the issuance of the Series A Floating Rate
Insured Notes due January 21, 2017 (which are referred to in the Insurance
Policy as the "Series A Floating Rate Notes due 2017") (the "Series A Notes") of
the tenor and amount hereinafter set forth, and (ii) to provide for the issuance
from time to time of additional series of floating rate and fixed rate insured
notes as herein provided (the "Additional Floating Rate Notes" and "Additional
Fixed Rate Notes", as appropriate, and together, the "Additional Notes")
All things necessary to make the Series A Notes, when executed
by the Company and authenticated and delivered under this Indenture and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by their Holders, it is mutually agreed, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles ("GAAP") or statutory accounting principles as permitted from time to
time by the Superintendent of Insurance of the State of New York ("SAP"), as
applicable, and, except as otherwise expressly provided in this Indenture, the
terms GAAP and SAP, as the case may be, with respect to any computation required
or permitted hereunder shall mean such accounting principles as in effect at the
date of such computation;
(4) unless the context otherwise requires, any reference to an "Article",
"Section" or "Exhibit" refers to an Article or a Section of, or an Exhibit to,
this Indenture, as applicable;
(5) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(6) "or" is not exclusive;
(7) "including" means including without limitation;
(8) any agreement, instrument or statute referred to in this Indenture or
in any instrument or certificate delivered in connection with this Indenture
means such agreement, instrument or statute as amended, modified or supplemented
from time to time as permitted hereby in the case of agreements or instruments
and includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; and
(9) references to a Person are also to its permitted successors and
assigns, unless otherwise provided.
"Accounting Period" has the meaning specified in Section 9.03(3)(b).
"Act" when used with respect to any Holder, has the meaning specified in
Section 1.03.
"Additional Notes" has the meaning specified in the recitals to this
Indenture.
"Additional Fixed Rate Notes" has the meaning specified in the recitals to
this Indenture.
"Additional Floating Rate Notes" has the meaning specified in the recitals
to this Indenture.
"Additional Reserve Account" has the meaning specified in Section 4.11(3).
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"Administrative Payment" has the meaning specified in Section
4.11(1).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Affiliated Group's Tax Sharing Agreement" means the Agreement
to Allocate Consolidated Federal Income Tax Liability, effective as of January
1, 1994, among MONY Group and each of its subsidiaries included in the
affiliated group of which MONY Group is the parent, as amended from
time-to-time.
"Agent Member" means a member of, or participant in, the
Depositary.
"A.M. Best" means A.M. Best Company, or any successor thereto,
and, if such Person shall for any reason no longer perform the functions of a
securities rating agency, "A.M. Best" shall be deemed to refer to any other
nationally recognized rating agency designated by the Company; provided, that
with respect to the rating of the Notes, the designation shall be with the
consent of the Insurer, such consent not to be unreasonably withheld.
"Amount of Insured Deficiency" has the meaning specified in
Section 4.10(1)(a).
"Applicable Procedures" has the meaning specified in Section
3.07(2)(a).
"Assessment Date" means, with respect to any Scheduled Payment
Date, the date five Business Days prior to such Scheduled Payment Date and, with
respect to any Tax Payment Date, the date five Business Days prior to such Tax
Payment Date.
"Authenticating Agent" has the meaning specified in Section
7.14.
"Authorized Officer" means:
(1) with respect to the Trustee, any officer within the
Corporate Trust Office of the Trustee, including any Vice President, Assistant
Vice President, Assistant Secretary, Assistant Treasurer, Trust Officer or other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture;
(2) with respect to the Insurer, the Chairman of the Insurer,
the President, a Vice Chairman, or any Senior Managing Director, Managing
Director, First Vice President or Vice President of the Insurer; and
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(3) with respect to the Company, the President, the Chief
Financial Officer or any Vice President of the Company.
"Bankruptcy Event" means, with respect to a specified Person:
(1) the entry of a decree or order by a court or governmental
authority having jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such Person under
any applicable bankruptcy, insolvency, reorganization, liquidation,
rehabilitation, conservation or other similar law, or appointing a receiver,
liquidator, rehabilitator, conservator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
30 consecutive days; or
(2) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable bankruptcy, insolvency, reorganization, liquidation, rehabilitation,
conservation or other similar law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, rehabilitator,
conservator, assignee, trustee, sequestrator (or other similar official) of such
Person or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by such Person in furtherance of any such action.
"Base Date" has the meaning specified in the definition of
Estimated Debt Service.
"Bloomberg Page BBAM" means the display page of Bloomberg
Professional Service designated as BBAM or such other page as may replace that
page on that service, or such other service as may be nominated as the
information vendor, for the purpose of displaying rates comparable to
Three-Month LIBOR.
"Board of Directors" means, when used with respect to MONY
Group or MONY Life, either the board of directors of MONY Group or MONY Life, as
appropriate, or any duly authorized committee of that board.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York generally are authorized or obligated by law or executive order to close.
"Calculation Agent" means the Company, or any successor
Calculation Agent as appointed by the Company with the consent of the Insurer.
"Cash" means immediately available funds denominated in U.S.
dollars and on deposit in a demand deposit account.
4
"CB Debt Cash Flow" means the cash and cash flows available to
pay principal of, and interest on the Notes without taking into account payments
under the Insurance Policy, and equals the sum of:
(i) the earnings on and release of the Surplus and
Related Assets (after the payment of Administrative Payments and
investment management fees relating to the management of assets in the
Closed Block and the Surplus and Related Assets (which fees will not
exceed in any year 0.35% of the average market value of the assets of
the Closed Block and the Surplus and Related Assets during such year;
it being understood that (a) such fee cap will only apply to investment
managers that are Affiliates of the Company and (b) fees in the nature
of upside sharing formulae relating to equities or real estate
mezzanine loans and fees from construction loan origination shall not
be subject to the cap)), including any retained earnings of the Closed
Block Business within MONY Life, to the extent that MONY Life is able
to dividend such amounts to the Company, and
(ii) the earnings on, and the principal of, funds
deposited in the DSCA-Subaccount CBB, and
(iii) any net tax payments to the Company pursuant to
the CBB Tax Agreement, which will be deposited into the DSCA-Subaccount
CBB, and
(iv) any amounts held (including investment income
thereon) in the DSCA-Subaccount OB and the DSCA-Subaccount OB
(Deposit), and
(v) any net payments received from the Swap
Counterparty under the Swaps.
"CB Dividend Percentage" has the meaning specified in Section
14.01(3).
"CBB Tax Agreement" means the Closed Block Business Tax
Agreement, dated as of April 30, 2002, between MONY Group and the
Company.
"Change of Control" means the occurrence of any of the
following events:
(i) (a) any Person (for the purposes of this
definition of "Change of Control", as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act, including any group
acting for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, but
excluding MONY Group, any Subsidiary of MONY Group, any employee
benefit plan or employee stock plan of MONY Group or any Subsidiary or
any person organized, appointed, established or holding capital stock
of MONY Group or a Subsidiary of MONY Group pursuant to such a plan, or
any person organized by or on behalf of MONY Group to effect a
reorganization or recapitalization of MONY Group that does not
contemplate a change in the ultimate beneficial ownership of 50% or
more of the voting power of the then outstanding equity interests of
MONY Group) is or becomes the
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"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the total
voting power of the then outstanding equity interests of MONY Group; or
(b) MONY Group merges with, or consolidates with,
another Person or MONY Group sells, assigns, conveys, transfers, leases
or otherwise disposes of all or substantially all of the assets of MONY
Group to any Person;
other than, in the case of either clause (i)(a) or (i)(b), any such
transaction where immediately after such transaction the Person that
"beneficially owned" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) immediately prior to such transaction, directly or
indirectly, all of the then outstanding voting equity interests of MONY
Group, "beneficially owns" (as so determined), directly or indirectly,
more than 50% of the total voting power of the then outstanding equity
interests of the surviving or transferee Person; or
(ii) during any year or any period of two consecutive
years, individuals who at the beginning of such period constituted the
Board of Directors of MONY Group (together with any new directors whose
election by such Board of Directors or whose nomination for election by
the shareholders of MONY Group was approved by a vote of a majority of
the directors of MONY Group then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason, other than pursuant to a proposal or request that the Board of
Directors of MONY Group be changed as to which the Insurer has
consented, to constitute a majority of the Board of Directors of MONY
Group then in office; provided, however, for purposes of the foregoing
determination, an individual who retires from the Board of Directors of
MONY Group and whose resignation is approved by the individuals who at
the beginning of such period constituted the Board of Directors of MONY
Group (together with any directors referred to in the preceding
parenthetical phrase) shall not be considered an individual who was a
member of the Board of Directors of MONY Group at the beginning of such
period or who ceased to be a director during such period if the number
of directors is reduced following such resignation.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closed Block" means the Closed Block established pursuant to
Article VIII of the Plan of Reorganization and thereafter maintained by MONY
Life.
"Closed Block Business" means the assets of the Closed Block
as maintained by MONY Life, the liabilities and obligations of the Closed Block
as maintained by MONY Life, Surplus and Related Assets and corresponding
adjustments and other allocated assets and liabilities as recorded on the books
and records of the Company and MONY Life as part of the Closed Block Business.
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"Closed Block Business Surplus" means the statutory surplus of
the Closed Block Business (which, for the avoidance of doubt, includes any and
all amounts held in the Additional Reserve Account), determined using statutory
accounting principles applicable to MONY Life as modified in accordance with
Annex A hereto.
"Closed Block Reinsurance" has the meaning specified in
Section 9.03(1).
"Closed Block Reinsurance Treaty" has the meaning specified in
Section 9.03(1).
"Closed Block Reinsurers" has the meaning specified in Section
9.03(1).
"Closed Block Tax Sharing Procedure" means the tax sharing
procedure set forth in Appendix A to the Closed Block Memorandum (as defined in
Section 8.1 of the Plan of Reorganization) pursuant to which the Closed Block is
treated as a separate line of business for the purpose of the allocation of MONY
Life's taxes among its lines of business.
"Closing Date" means the initial date of issuance of the
Series A Notes under this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in Section 15.02.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Action Level RBC" has the meaning specified in
Section 1322(a)(8)(A) of the New York Insurance Law; provided, however, that for
purposes of this definition, the term "RBC instructions" as used in Section
1322(a)(8)(C) of the New York Insurance Law shall have the meaning set forth in
Section 1322(a)(7) of the New York Insurance Law as if the report and
instructions referred to in section 1322(a)(7) were those applicable to the year
ending December 31, 2001, without taking into account any subsequent changes to
the form of such report or the instructions thereto.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any Authorized Officer of the
Company and delivered to the Trustee and the Insurer; provided, that if an
Insurer Default has occurred and is continuing, the Company shall endeavor to
make such delivery in good faith but failure of the Company to make such a
delivery shall not be an Event of Default under this Indenture.
"Control" has the meaning specified in Section 8-106 and
Section 9-104 of the UCC.
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"Corporate Trust Office" means the principal office of the
Trustee in The City of New York, New York at which at any particular time this
Indenture shall be administered, which is located at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration, or at such
other address as the Trustee may designate by notice to the Holders, the Insurer
and the Company, or the principal corporate trust office of any successor
Trustee at the address designated by such successor Trustee by notice to the
Holders, the Insurer and the Company.
"corporation" means a corporation, limited liability company,
association, company, joint-stock company or business trust.
"Customer" means a "customer" as defined in Section 4-104 of
the UCC.
"Debt Service" means, for any period, all scheduled principal
and interest payments on the Notes on a pre-tax basis, all scheduled premium
payments on the Insurance Policy, and all net payments due from the Company
under the Swaps (excluding any termination payments under the Swaps), payable on
any Scheduled Payment Date falling within such period.
"Debt Service Coverage Account" has the meaning specified in
Section 4.01(1).
"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, initially, The Depository Trust Company, a
New York banking corporation, or any successor clearing agency so registered
appointed pursuant to Section 3.06(1).
"Dollars" or "$" or any similar references means the currency
of the United States.
"DSCA Investment Policy" means the Investment Policy Statement
for the Debt Service Coverage Account attached as Exhibit E.
"DSCA Shortfall" has the meaning specified in Section
4.11(2)(b).
"DSCA-Subaccount CBB" has the meaning specified in Section
4.01(1).
"DSCA-Subaccount OB" has the meaning specified in Section
4.01(1).
"DSCA-Subaccount OB (Deposit)" has the meaning specified in
Section 4.01(1).
"Entitlement Holder" means an "entitlement holder" as defined
in Section 8-102( 7) of the UCC.
"Escrow Account" has the meaning specified in Section
4.10(1)(b).
8
"Estimated Debt Service" shall mean, for a specified number of
Scheduled Payment Dates following any specified Scheduled Payment Date (the
"Base Date"), the sum of Debt Service payments to be made on such specified
Scheduled Payment Dates, subject to the following assumptions and adjustments:
(i) the principal amount of the Notes assumed to be
outstanding on each such Scheduled Payment Date will equal the
outstanding principal amount of the Notes as of the Base Date less any
amortized principal amounts scheduled to be paid on or after the Base
Date up to, but not including, such Scheduled Payment Date; and
(ii) so long as the Swaps are in place, for purposes
of determining the Estimated Debt Service, Debt Service payments shall
exclude payments to be made to the Swap Counterparty and interest
payable on the Series A Notes shall be calculated on the assumption
that they bear interest at the fixed rate of 6.44% (it being understood
that a corresponding fixed rate shall be determined at the time of
issuance of any series of Additional Floating Rate Notes); and
(iii) with respect to payments to be made in respect
of the Fixed Notes on the final specified Scheduled Payment Date, if
payments of principal and/or interest on the Fixed Notes are not
scheduled to be made on such final specified Scheduled Payment Date,
and if interest on the Fixed Notes is payable semi-annually, one-half
of the aggregate amount of Scheduled Payments to be made on the Fixed
Notes on the Scheduled Payment Date immediately following such final
specified Scheduled Payment Date shall be included in Debt Service for
the final specified Scheduled Payment Date for purposes of determining
the Estimated Debt Service.
"Euroclear" means Euroclear S.A./N.V., as operator of the
Euroclear System.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Exchange Note" means (i) a note issued by the Company in
exchange for an Original Note pursuant to the Exchange Offer or otherwise
registered under the Securities Act or (ii) any note for which the next
preceding Predecessor Note was an Exchange Note.
"Exchange Offer" means an offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange an Exchange
Note or Exchange Notes for an Original Note or Original Notes.
9
"Fair Market Value of the Closed Block Business" has the
meaning specified in Section 6.06.
"financial asset" means a "financial asset" as defined in
Section 8-102(a)(9) of the UCC.
"Fitch" means Fitch Ratings, or any successor thereto, and, if
such Person shall for any reason no longer perform the functions of a securities
rating agency, "Fitch" shall be deemed to refer to any other nationally
recognized rating agency designated by the Company; provided, that with respect
to the rating of the Notes, the designation shall be with the consent of the
Insurer, such consent not to be unreasonably withheld.
"Fixed Notes" means the Additional Fixed Rate Notes and the
Exchange Notes into which the Additional Fixed Rate Notes (if any) are
exchanged.
"Floating Notes" means the Series A Notes, the Additional
Floating Rate Notes and the Exchange Notes into which the Series A Notes and the
Additional Floating Rate Notes (if any) are exchanged.
"Freed-Up Capital" has the meaning specified in Section
11.10(8).
"GAAP" has the meaning specified in Section 1.01(3).
"Glide Path Actual Ratio" as of any year-end equals that
decimal amount (rounded to the nearest ten-thousandth) obtained by dividing (A)
the statutory carrying value of the assets of the Closed Block as of such
year-end, by (B) the statutory carrying value of the liabilities of the Closed
Block as of such year-end, in each case determined using statutory accounting
principles applicable to MONY Life as modified in accordance with Annex A
hereto. For purposes of this Indenture, the "Glide Path Actual Ratio for a
Scheduled Payment Date" means the Glide Path Actual Ratio determined as of (a)
the year-end immediately preceding such Scheduled Payment Date for Scheduled
Payment Dates in April, June and October and (b) the year-end immediately prior
to the year-end immediately preceding such Scheduled Payment Date for a
Scheduled Payment Date in January.
"Glide Path Deviation Excess" as of any Scheduled Payment Date
equals the product of (X) the Ratio Excess as of such Scheduled Payment Date
(expressed as a decimal number) and (Y) the amount determined in clause (B) of
the definition of Glide Path Actual Ratio when determining the Glide Path Actual
Ratio for such Scheduled Payment Date. If no Ratio Excess exists as of such
Scheduled Payment Date, then the Glide Path Deviation Excess as of such
Scheduled Payment Date equals zero.
"Glide Path Projected Ratio" as of any year-end equals the
applicable Projected Closed Block Asset/Liability Ratio, expressed as a decimal
amount (rounded to the nearest ten-thousandth), as set forth in Exhibit H to
this Indenture. For purposes of this Indenture, the "Glide Path Projected Ratio
for a Scheduled Payment Date" means the Glide Path Projected Ratio as of (a) the
year-end immediately preceding such Scheduled Payment Date for Scheduled Payment
Dates in April, June and October and (b) the year
10
end immediately prior to the year-end immediately preceding such Scheduled
Payment Date for a Scheduled Payment Date in January.
"Global Note" means a Note that evidences all of or part of
the Notes of any series and bears the legend set forth in Section 2.03, issued
to the Depositary or its nominee, and registered in the name of the Depositary
or its nominee.
"Holder" means a Person in whose name a Note is registered in
the Note Register.
"IMR" has the meaning specified in Section 9.03(3)(d).
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more Supplemental
Indentures entered into pursuant to the applicable provisions hereof.
"Initial Deviation" has the meaning specified in Section
4.11(2)(a)(y).
"Initial Principal Amount" of a Note means the principal
amount of such Note at issuance.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D.
"instrument" means an "instrument" as defined in Section 9-102
(a)(47) of the UCC.
"Insurance Agreement" means the Insurance Agreement, dated as
of April 30, 2002, among the Company, the Insurer, MONY Group, for the limited
purposes set forth therein, and MONY Life, for the limited purposes set forth
therein, and the Trustee.
"Insurance Policy" means the financial guaranty insurance
policy issued by the Insurer, dated as of April 30, 2002, guaranteeing the
timely payment of the scheduled principal of and interest on the Series A Notes,
together with any such policy issued by the Insurer guaranteeing the timely
payment of scheduled principal of and interest on the Additional Floating Rate
Notes and/or the Additional Fixed Rate Notes.
"Insurer" has the meaning specified in the first paragraph of
this instrument.
"Insurer Default" means:
(i) any failure of the Insurer to make any Scheduled
Payment with regard to the Notes under the Insurance Policy when such
payment becomes due and payable thereunder; or
(ii) any Bankruptcy Event relating to the Insurer.
11
"Inter-Business Loan" has the meaning specified in Section
4.07(1).
"Interest Period" means, for the Series A Notes and the
Additional Floating Rate Notes, respectively, the period beginning on the
respective date of issuance of those Notes and ending on the first Scheduled
Payment Date for those Notes and, thereafter, each of the successive periods
beginning on the last day of the preceding Interest Period for those Notes and
ending on the following Scheduled Payment Date for those Notes, subject to the
following: (1) if any Scheduled Payment Date for the Series A Notes and the
Additional Floating Rate Notes, respectively, is not a Business Day or a London
Business Day, the Interest Period that would otherwise end on that Scheduled
Payment Date will, instead, end on the Business Day (which is also a London
Business Day) following that Scheduled Payment Date unless that Business Day
falls in a new calendar month, in which case that Interest Period will end on
the Business Day (which is also a London Business Day) preceding that Scheduled
Payment Date, and (2) notwithstanding clause (1), the final Interest Period for
the Series A Notes and the Additional Floating Rate Notes, respectively, will
end on the scheduled maturity date of those Notes, regardless of whether or not
the scheduled maturity date is a Business Day or a London Business Day. In the
event that a Series A Note or Additional Floating Rate Note is exchanged for one
or more Exchange Notes, the Interest Periods for such Exchange Note or Notes
shall be the same as the Interest Periods of the Series A Note or Additional
Floating Rate Note for which it or they were exchanged. Interest payable in
respect of each Interest Period will accrue from and including the first day and
to but excluding the last day of such Interest Period.
"Investment Management Criteria", with respect to a potential
Investment Manager, shall mean:
(i) the Investment Manager shall be an
investment adviser registered under Section 203 of the Investment Advisers
Act of 1940;
(ii) the Investment Manager shall have adequate
experience managing the types of assets that will be subject to investment
management;
(iii) the Investment Manager shall agree to manage
the assets in accordance with the DSCA Investment Policy;
(iv) the Investment Manager shall agree to provide
such information to the Trustee, the Company and the Insurer, with the
frequency and in the format necessary to meet the requirements set
forth in this Indenture and any other agreements relating to the
issuance of the Notes, including the Insurance Agreement; and
(v) the Investment Manager shall not have the
authority to withdraw assets from the Debt Service Coverage Account
except pursuant to the investment management agreement, and cash solely
on a cash against delivery basis.
"Investment Manager" has the meaning specified in Section
4.09.
12
"Legend" has the meaning specified in Section 2.02(2).
"LIBOR Determination Date" means with respect to each Interest
Period, the second London Business Day preceding the first day of such Interest
Period.
"Lien" means any lien, mortgage, pledge, security interest,
assignment, charge or encumbrance of any kind (including conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
"Liquidated Damages" means liquidated damages payable under
the Registration Rights Agreement.
"London Business Day" means any day on which commercial banks
and foreign exchange markets settle payments and have the option to be open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London.
"Maximum Dividend Amount" has the meaning specified in Section
14.01(2).
"ML CB Dividend" has the meaning specified in Section
14.01(1).
"ML OB Dividend" has the meaning specified in Section
14.01(l).
"modco" has the meaning specified in Section 9.03(3)(a).
"money" has the meaning specified in Section 1-201(24) of the
UCC.
"MONY Group" means The MONY Group Inc., a Delaware corporation
and the holder of all of the membership interests in the Company.
"MONY Life" means MONY Life Insurance Company, a New York
stock life insurance company.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor thereto, and, if such Person shall for any reason no longer perform
the functions of a securities rating agency, "Moody's" shall be deemed to refer
to any other nationally recognized rating agency designated by the Company;
provided, that with respect to the rating of the Notes, the designation shall be
with the consent of the Insurer, such consent not to be unreasonably withheld.
"Net Gain from Operations" has the meaning (i) in respect of
the Closed Block Business, specified in the supplemental statutory-based
statement of operations of the Closed Block Business within MONY Life referred
to in Section 8.04(2)(b), and (ii) in respect of MONY Life, as specified in the
statutory financial statements of MONY Life referred to in Section 8.04(2)(a).
13
"Net Treaty Gain Balance" has the meaning specified in Section
9.03(3)(b).
"Notes" means, collectively, the Original Notes and the
Exchange Notes.
"Notes Register" and "Notes Registrar" have the meanings
specified in Section 3.06(1).
"Notice of Account Deposit" has the meaning specified in
Section 4.03.
"Notice of Claim and Certificate Under the Insurance Policy"
has the meaning specified in Section 4.10(1)(a).
"Notice of Claim and Certificate Under the Swap Policy" has
the meaning specified in Section 4.10(1)(a).
"Notice of Current Ratings" has the meaning specified in
Section 4.04(3).
"Notice of Default" has the meaning specified in Section
6.01(1)(e).
"Notice of Due Payments" has the meaning specified in Section
4.04(1).
"Notice of Due Tax Payments" has the meaning specified in
Section 4.04(2).
"Notice of Required Account Deposit" has the meaning specified
in Section 4.08(1).
"OB Tax Agreement" means the Ongoing Businesses Tax Agreement,
dated as of April 30, 2002, between MONY Group and the Company.
"Officer's Certificate" means a certificate signed by an
Authorized Officer of the Company, or any person duly appointed by member(s) of
the Company and delivered to the Trustee, with a copy to the Insurer. The
officer signing an Officer's Certificate given pursuant to Section 11.04 shall
be the principal executive, financial or accounting officer of the Company.
"Ongoing Businesses" means all of the businesses, assets and
liabilities of MONY Group and its subsidiaries, other than the businesses,
assets and liabilities that are part of the Closed Block Business.
"Opinion of Counsel" means a written opinion of counsel, who
may, but need not, be counsel for the Company; provided, that with respect to
matters relating to tax, bankruptcy and security interests, such counsel shall
be independent of the Company and its Affiliates, and who shall be reasonably
acceptable to the Trustee and the Insurer, as long as no Insurer Default has
occurred and is continuing.
14
"Original Note" means a Series A Note or an Additional Note or
any Note (other than an Exchange Note) for which the next preceding Predecessor
Note was an Original Note.
"Outstanding", when used with respect to the Notes, means, as
of the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
with any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Notes; provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision for such notice satisfactory to
the Trustee has been made;
(iii) Notes as to which Defeasance has been effected
pursuant to Section 13.02; and
(iv) Notes that have been paid pursuant to Section
3.08 or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that, except as provided for herein, in determining whether
the Holders of the requisite Remaining Principal Amount of the Notes have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes (other
than the Insurer) or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the Trustee
actually knows to be so owned shall be so disregarded; provided, further, that
principal amounts on Notes which have been paid with proceeds of the Insurance
Policy shall continue to remain Outstanding for purposes of this Indenture until
the Insurer has been paid as subrogee hereunder, and the Insurer shall be deemed
to be the Holder thereof to the extent of any payments thereon made by the
Insurer; provided, further, that so long as no Insurer Default has occurred and
is continuing, any Notes owned by the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor shall continue to
be deemed to be Outstanding. Notes so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Notes and that
the pledgee is not the Company or any other
15
obligor upon the Notes other than the Insurer or any Affiliate of the Company or
of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, Redemption Price, if any, interest on or any other amounts
under any Notes on behalf of the Company.
"Permitted Indebtedness" means:
(1) securities lending and other activities of
the Debt Service Coverage Account only to the extent permitted under
the DSCA Investment Policy;
(2) unsecured indebtedness owing to MONY Group or any
of its Affiliates which is incurred for the purpose of making a
Subaccount OB Deposit; provided that any such indebtedness, other than
Inter-Business Loans, is subordinated to the obligations of the Company
under the Notes pursuant to subordination provisions in the form set
out in Exhibit O; and
(3) subordinated indebtedness of the Company incurred
pursuant to Section 6.18(1)(b).
"Permitted Liens" means (i) liens for taxes not delinquent or
being contested in good faith and by appropriate proceedings and for which
reserves adequate under GAAP are being maintained; (ii) deposits or pledges to
secure obligations under workers' compensation, social security or similar laws,
or under unemployment insurance; (iii) mechanics', workers', materialmen's or
other like liens arising in the ordinary course of business with respect to
obligations that are not due or that are being contested in good faith; (iv)
liens granted under securities lending and borrowing agreements, repurchase and
reverse repurchase agreements and derivatives entered into by MONY Life in the
ordinary course of business as permitted under this Indenture; (v) clearing and
settlement liens on securities and other investment properties incurred in the
ordinary course of clearing and settling transactions in such assets and holding
them with custodians; (vi) insurance regulatory liens; (vii) judgment liens in
respect of judgments that are being contested in good faith and by appropriate
proceedings and for which reserves adequate under GAAP are being maintained;
(viii) pre-existing liens on property acquired through foreclosure or similar
proceedings; and (ix) liens contemplated by this Indenture.
"Person" means any individual, corporation, limited liability
company, estate, partnership, joint venture, trust (including any beneficiary
thereof), unincorporated organization or other legal entity, or any government
or any agency or political subdivision thereof.
"Place of Payment" has the meaning specified in Section
3.09(l).
16
"Plan of Reorganization" means the plan of reorganization of
The Mutual Life Insurance Company of New York under Section 7312 of the New York
Insurance Law, which became effective on November 16, 1998.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.08 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"proceeds" has the meaning specified in Section 9-102(a)(64)
of the UCC.
"QIB" means a "qualified institutional buyer" within the
meaning assigned to that term in Rule 144A.
"RBC" has the meaning specified in Section 9.03(3)(g).
"Ratio Excess" has the meaning specified in Section
4.11(2)(a).
"Redemption Date", when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" means, with respect to a Note subject to
total or partial redemption, the redemption price set forth in the applicable
form of Note. Redemption Price shall not include any accrued interest or
Liquidated Damages payable on or in respect of the Note.
"Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent, acting in good faith and in
a commercially reasonable manner.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of the Closing Date, by and among the
Company, MONY Life and the Initial Purchasers (as therein defined), as such
agreement may be amended from time-to-time.
"Regular Record Date", for any Scheduled Payment Date on the
Notes, means the fifteenth day, whether or not a Business Day, preceding such
Scheduled Payment Date.
"Regulation D" means Regulation D promulgated under the
Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Notes" has the meaning set forth in
Section 2.01(3).
17
"Regulatory Redemption Event" means a change in New York law
or regulation (other than with respect to taxes) that changes the ability of
MONY Life to declare shareholder dividends without regulatory approval in a
manner that materially adversely affects CB Debt Cash Flow.
"Remaining Principal Amount" with respect to a Note shall mean
the Initial Principal Amount of such Note less any principal amounts of such
Note redeemed pursuant to Article Twelve and less any amortization payments paid
on such Note.
"Required Surplus" means the amount of Closed Block Business
Surplus required to maintain the Closed Block Business' Total Adjusted Capital,
expressed as a percentage of the Closed Block Business' Company Action Level
RBC, at 100% (for purposes of such calculation, (a) treating the Closed Block
Business as if it were a New York domestic stock life insurer and (b)
determining the Closed Block Business' Total Adjusted Capital and Company Action
Level RBC in a manner consistent with the determination of Closed Block Business
Surplus, including the application of Annex A).
"Restricted Certificated Notes" has the meaning specified in
Section 2.01(3).
"Restricted Global Notes" has the meaning specified in Section
2.01(3).
"Restricted Period" means the period of 40 consecutive days
beginning on and including the later of (i) the day on which the Notes are first
offered to Persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the day on which the closing of the offering
of the Notes occurs.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 144A Information" shall mean such information as is
specified pursuant to paragraph (d)(4) of Rule 144A (or any successor provision
thereto).
"SAP" has the meaning specified in Section 1.01(3).
"Scheduled Payment Date" means the dates for scheduled
payments of principal and interest under the terms of the Notes of any series.
"Scheduled Payments" means, with respect to any Scheduled
Payment Date, all scheduled payments in respect of principal and interest
payable by the Company under the terms of the Notes of any series on such date.
"SEC" means the Securities and Exchange Commission, as from
time-to-time constituted, or if at any time after the date of this Indenture
such Commission is not performing the duties now assigned to it under the TIA,
then the body performing such duties at such time.
18
"Secured Obligations" has the meaning specified in Section
15.01.
"Secured Parties" means the Holders, the Insurer and the Swap
Counterparty, as their interests may appear under this Indenture.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"security" has the meaning specified in Section 8-102(a)(15)
of the UCC.
"Security Entitlement" means a "security entitlement" as
defined in Section 8-102(17) of the UCC.
"Series A Notes" has the meaning specified in the recitals to
this Indenture.
"Special Payment Date" means any date specified by the Insurer
pursuant to Section 6.18 following a Trigger Event for the payment of principal
and interest on the Notes.
"Standard & Poor's" means Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc., or any successor thereto, and, if
such Person shall for any reason no longer perform the functions of a securities
rating agency, "Standard & Poor's" shall be deemed to refer to any other
nationally recognized rating agency designated by the Company; provided, that
with respect to the rating of the Notes, the designation shall be with the
consent of the Insurer, such consent not to be unreasonably withheld.
"Stated Maturity", when used with respect to any Series A Note
(or Exchange Note or Notes for which a Series A Note is exchanged), means
January 21, 2017; and when used with respect to any Additional Note (or Exchange
Note or Notes for which an Additional Note is exchanged), means the maturity
date provided in the Supplemental Indenture applicable thereto.
"Statement of Account" has the meaning specified in Section
4.06(1).
"Subaccount OB Deposit" has the meaning specified in Section
4.08(2).
"Subsidiary" means a corporation more than 50% of the
outstanding Voting Stock or other equity security of which is owned, directly or
indirectly, by a Person or by one or more other Subsidiaries, or by a Person and
one or more other Subsidiaries. Unless otherwise noted, "Subsidiary" shall mean
a Subsidiary of the Company.
"Supplemental Indenture" has the meaning specified in Section
3.01(2).
"Surplus and Related Assets" means those assets segregated
outside the Closed Block by MONY Life to meet initial capital requirements
related to the Closed Block Business within MONY Life as well as those assets
that initially represent the difference between the assets of the Closed Block
and the sum of liabilities of the Closed
19
Block as designated by MONY Life on or prior to the Closing Date in conformity
with the Investment Policy Statement for Surplus and Related Assets attached as
Exhibit D.
"Swap Agreement" means the ISDA Master Agreement, the schedule
thereto, and confirmation thereunder, each dated as of April 30, 2002, between
the Company and the Swap Counterparty, together with any other confirmation
which may be entered into between the Company and the Swap Counterparty under
such ISDA Master Agreement (including the schedule thereto) in respect of the
Additional Floating Rate Notes.
"Swap Counterparty" means Ambac Financial Services, L.P. or
any successor counterparty under such Swaps as may be consented to by the
Insurer.
"Swap Policy" means the financial guaranty insurance policy
issued by the Insurer to the Trustee for the benefit of the Swap Counterparty,
dated as of April 30, 2002, guaranteeing timely payment of certain of the
Company's obligations under the Swaps.
"Swaps" means the interest rate swap transactions entered into
by the Company with the Swap Counterparty pursuant to the Swap Agreement.
"Tax Agreements" means (i) the Affiliated Group's Tax Sharing
Agreement, (ii) the CBB Tax Agreement, and (iii) the OB Tax Agreement, together
with any tax instructions from MONY Group to its Subsidiaries that are parties
to the Affiliated Group's Tax Sharing Agreement as to payments under the Tax
Agreements.
"Tax Payment Dates" means the payment dates referred to in the
Affiliated Group's Tax Sharing Agreement.
"Tax Payments" means any net tax payments payable by the
Company under the CBB Tax Agreement.
"Temporary Regulation S Global Notes" has the meaning set
forth in Section 2.01(3).
"Three-Month LIBOR" means, for each Interest Period, the rate
for deposits in U.S. dollars for a period of three months, commencing on the
first day of such Interest Period and in an amount that is representative for a
single transaction in that market at that time, that appears on Bloomberg Page
BBAM as of 11:00 a.m., London time, on the LIBOR Determination Date with respect
to such Interest Period. If such rate does not appear on the Bloomberg Page
BBAM, then Three-Month LIBOR for the relevant Interest Period will be determined
on the basis of the rates at which deposits in U.S. dollars are offered by the
Reference Banks at approximately 11:00 a.m., London time, on the LIBOR
Determination Date with respect to such Interest Period to prime banks in the
London interbank market for a period of three months commencing on the first day
of such Interest Period and in an amount that is representative for a single
transaction in that market at that time, assuming an actual/360 day count basis.
The Calculation Agent shall request the principal London office of each of the
Reference
20
Banks to provide a quotation of its rate. If at least two such quotations are
provided, the rate for that Interest Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate for
that Interest Period will be the arithmetic mean of the rates quoted by major
banks in New York City, selected by the Calculation Agent, at approximately
11:00 a.m., New York City time, on the first day of such Interest Period for
loans in U.S. dollars to leading European banks for a period of three months
commencing on the first day of such Interest Period and in an amount that is
representative for a single transaction in that market at that time. If the
Calculation Agent is unable to obtain rate quotations for such loans, the rate
for that LIBOR Determination Date shall be Three-Month LIBOR as calculated for
the immediately preceding Interest Period. Notwithstanding the foregoing,
"Three-Month LIBOR" with respect to the first Interest Period will be 1.92125%.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date hereof until such time as this Indenture is qualified under
the TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA.
"Total Adjusted Capital" has the meaning specified in Section
1322(a)(11) of the New York Insurance Law; provided, however, that for purposes
of this definition, the term "RBC instructions" as used in Section 1322(a)(11)
shall have the meaning set forth in Section 1322(a)(7) of the New York Insurance
Law as if the report and instructions referred to in Section 1322(a)(7) were
those applicable to the year ending December 31, 2001, without taking into
account any subsequent changes to the form of such report or the instructions
thereto.
"Treaty Gain Amount" has the meaning specified in Section
9.03(3)(b)
"Treaty Loss Amount" has the meaning specified in Section
9.03(3)(b)
"Trigger Events" has the meaning specified in Section 6.18(2).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York.
"United States" and "U.S." means the United States of America
(including the States and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"U.S. Government Obligation" has the meaning specified in
Section 13.03(1).
"Valuation Date" with respect to a Scheduled Payment Date
means eight Business Days prior to such Scheduled Payment Date. All valuations
on or as of a
21
particular Valuation Date shall be as of the close of business on the
immediately preceding quarter-end, and shall be notified to the Trustee, the
Company and the Insurer no later than the close of business on the Business Day
prior to the applicable Assessment Date.
"Voting Stock" means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
SECTION 1.02. Form of Documents Delivered to Trustee and the Insurer.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
All information to be provided under this Indenture by the
Company, the Trustee or the Insurer, as applicable, shall be provided by an
Authorized Officer of the Company, the Trustee or the Insurer, as applicable.
SECTION 1.03. Acts of Holders; Record Dates.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as in this Indenture otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are in this
Indenture sometimes referred to as the "Act" of the Holders
22
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 7.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
1.03.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than the signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of the signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
The ownership of Notes shall be proved by the Notes Register.
(2) Any Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the Insurer in reliance thereon, whether or not notation of such Act
is made upon such Note.
(3) The Company may set any day as the record date for the
purpose of determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders; provided
that the Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
6.02, (iii) any request to institute proceedings referred to in Section 6.07, or
(iv) any direction referred to in Section 6.14. If not set by the Company prior
to the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 8.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date, and no other Holders, shall be
entitled to give or take, or vote on, the relevant action whether or not such
Holders remain Holders after such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite Remaining Principal Amount of Outstanding Notes on the date the
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date and the proposed action by Holders to be given to the Trustee in writing
and to each Holder in the manner set forth in Section 1.05.
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(4) Notwithstanding any other provision in this Indenture to
the contrary, so long as no Insurer Default has occurred and is continuing, the
Insurer shall be entitled to exercise all rights and remedies with respect to
the Notes under this Indenture, including the right to vote on all matters
presented to the Holders, the exercise of remedies and the waiver of breaches
and defaults, and no Act of the Holders will be effective and only an Act of the
Insurer in exercising such rights of the Holders in respect of such Act will be
effective; provided, however, that (i) the Holders shall retain the right under
this Indenture to approve any changes in the material terms of the Notes as set
forth in Section 10.02(2), and (ii) if an Insurer Default occurs and is
continuing, all rights and remedies available to a specific series of Notes
shall be exercised directly by the Holders of such series of Notes, and all
rights and remedies available to Holders as a group under this Indenture shall
be exercised by the Holders voting as a group. Any vote, determination, election
or other Act of the Insurer in exercising the rights with respect to the Notes
as provided in this Section 1.03(4) shall be deemed to be the vote,
determination, election or other Act of the Holders.
(5) Without limiting the foregoing, a Holder entitled under
this Indenture to take any action under this Indenture with regard to a
particular Note may do so with regard to all or any part of the Remaining
Principal Amount of such Note, which action may differ with respect to different
portions of the Remaining Principal Amount of such Note, or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.04. Notices, Etc., to Trustee, Company and Insurer.
Any Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or the
Insurer, as the case may be, shall be sufficient for every purpose
hereunder (unless otherwise in this Indenture expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office; or
(b) the Company by the Trustee or by any Holder or the
Insurer, as the case may be, shall be sufficient for every purpose
hereunder (unless otherwise in this Indenture expressly provided) if in
writing and (i) mailed by first-class mail, postage prepaid or (ii)
delivered by hand or (iii) transmitted by facsimile, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee and the Insurer by the Company,
Attention: President; or
(c) the Insurer by any Holder or by the Trustee or the
Company, as the case may be, shall be sufficient for every purpose
hereunder (unless otherwise in this Indenture expressly provided) if in
writing and (i) mailed by first-class mail, postage prepaid or (ii)
delivered by hand or (iii) transmitted by facsimile, to the Insurer
addressed to it at Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx,
00
Xxx Xxxx, Xxx Xxxx, 00000, Facsimile Number (000) 000-0000, Attention:
Managing Director, Structured Finance and Credit Derivatives;
or to such other Persons or addresses as the Person to whom notice is given
may have previously furnished to the others in writing in the manner set
forth above.
SECTION 1.05. Notice to Holders.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise in this
Indenture expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at the Holder's address as
it appears in the Note Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving
of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice sent to the Holders by the
Trustee or the Company shall also be sent to the Insurer; provided that
such notice to the Insurer shall be subject to the same conditions as
provided in this Indenture for notices to the Holders.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee and the Insurer, with respect to notifications to the Insurer,
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.06. Waiver.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders or the Insurer, as
the case may be, shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 1.07. Conflict with TIA.
If any provision hereof limits, qualifies or conflicts with a
provision of the TIA that is required to be a part of and govern this
Indenture, such required provision shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
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SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture which bind any
party shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Severability Clause.
If any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions, and the validity,
legality or enforceability of such provisions in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture; provided that it is understood
and acknowledged that the Swap Counterparty is a third-party beneficiary
under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13. Business Day Convention.
If any Scheduled Payment Date, Special Payment Date or
Redemption Date is not a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes)
payment of any amounts due on the Notes need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if made on the
Scheduled Payment Date, Special Payment Date or Redemption Date.
SECTION 1.14. Non-Petition Clause.
The Trustee and the Insurer hereby covenant and each Holder or
beneficial owner of any Note, by accepting such Note or any interest
therein, shall be deemed to covenant, to the fullest extent permitted by
law, that it will not at any time prior to foreclosure on all of the
Collateral, liquidation of all of the Collateral and application of the
moneys so collected pursuant to Section 6.05 hereof, institute against the
Company, or join in any institution against the Company of, any bankruptcy,
reorganization, arrangement, insolvency, rehabilitation, conservation or
liquidation proceedings, or any other proceedings under any United States
federal or state, or any other, bankruptcy, insolvency or similar law in
connection with any obligations relating to this Indenture, the Notes, the
Insurance Agreement or any agreement relating hereto or thereto.
26
ARTICLE TWO
NOTE FORMS
SECTION 2.01. Forms Generally.
(1) The Floating Notes shall be in substantially the form set
forth in Exhibit A with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture (and, in the case of Additional Floating Rate Notes, the
corresponding Supplemental Indenture), the Fixed Notes, if any, shall be in
the form as provided in the corresponding Supplemental Indenture, and the
Notes may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or of the Depositary or as may,
consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of the Notes.
The definitive Notes shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Notes, as evidenced by
their execution of such Notes.
(2) All the Notes shall be issued only in registered form,
without coupons.
(3) Upon their original issuance, the Original Notes of each
series offered and sold to Institutional Accredited Investors who are not
also QIBs shall be issued in the names of their initial beneficial owners
and delivered to such Holders (or upon their respective orders) by the
Company. Such Notes are referred to in this Indenture as the "Restricted
Certificated Notes". Original Notes shall not otherwise be issued in any
form other than Global Notes, except as provided in Section 3.07.
Original Notes of each series offered and sold in their
initial distribution in reliance on Regulation S shall be initially issued
in the form of one or more temporary Global Notes registered in the name of
the Depositary or its nominee and deposited with the Trustee as custodian
for the Depositary. Such temporary Global Notes are referred to in this
Indenture as the "Temporary Regulation S Global Notes". Investors may hold
beneficial interests in such Temporary Regulation S Global Notes only
through Euroclear or Clearstream. After such time as the Restricted Period
shall have terminated, beneficial interests in such Temporary Regulation S
Global Notes may be exchanged for beneficial interests in Global Notes of
the same series as provided in Section 3.07, which shall be registered in
the name of the Depositary or its nominee and deposited with the Trustee,
as custodian for the Depositary. Such Global Notes are referred to in this
Indenture as the "Regulation S Global Notes".
Original Notes of each series offered and sold in their
initial distribution in reliance on Rule 144A shall be issued in the form
of one or more Global Notes registered in the name of the Depositary or its
nominee and deposited with the Trustee, as custodian
27
for the Depositary. Such Global Notes are referred to in this Indenture as
the "Restricted Global Notes".
(4) The aggregate Initial Principal Amount of each Global Note
may be increased or decreased from time to time by adjustments made on the
records of the Trustee, as custodian for the Depositary, as provided in
Section 3.07.
SECTION 2.02. Form of Legends.
(1) Each Note issued hereunder shall, in addition to any other
legends required or permitted by this Indenture, bear the applicable legend
below:
(a) In the case of a Restricted Global Note or a Restricted
Certificated Note:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE
INITIAL INVESTOR (1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) BY SUBSEQUENT
INVESTORS, AS SET FORTH IN (A) ABOVE, AND, IN ADDITION, TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND, IN EACH
OF CASE (A) AND (B), IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. SECURITIES
OWNED BY AN INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL
BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM AND MAY NOT BE TRANSFERRED
WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(b) In the case of a Temporary Regulation S Global Note:
THIS NOTE IS A TEMPORARY REGULATION S GLOBAL NOTE WITHIN THE MEANING OF
THE INDENTURE REFERRED TO BELOW. EXCEPT IN THE CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS
TEMPORARY
28
GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL NOTE.
NO EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL NOTE MAY BE MADE
FOR AN INTEREST IN THE REGULATION S GLOBAL NOTE EXCEPT ON OR AFTER THE
TERMINATION OF THE RESTRICTED PERIOD AND UPON DELIVERY OF THE
CERTIFICATIONS BY THE OWNER OF THE NOTES AND BY THE DEPOSITARY RELATING
TO SUCH TRANSFER IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.
(c) In the case of a Temporary Regulation S Global Note and a
Regulation S Global Note:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER SUCH LAWS.
(2) If any Note is issued upon the transfer, exchange or
replacement of another Note that does not bear a legend setting forth
restrictions on transfer that are intended to ensure compliance with the
Securities Act as provided in Section 2.02(1) (the "Legend"), the Note so
issued shall not bear the Legend. If any Note is issued upon the transfer,
exchange (other than pursuant to an Exchange Offer) or replacement of
another Note bearing the Legend, or if a request is made to remove the
Legend on any Note, the Note so issued shall bear the Legend, or the Legend
shall not be removed, as the case may be, unless there is delivered to the
Company such satisfactory evidence, which may include an opinion of
independent counsel licensed to practice law in the State of New York, as
may be reasonably required by the Company, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A, Rule 144 or
Regulation S under the Securities Act or that such Notes are not
"restricted securities" within the meaning of Rule 144 under the Securities
Act. Upon provision of such satisfactory evidence, the Trustee, at the
direction of the Company, shall authenticate and deliver a Note that does
not bear the Legend.
SECTION 2.03. Form of Legend for Global Notes.
Every Global Note authenticated and delivered hereunder shall,
in addition to any other legends required or permitted by this Indenture,
bear a legend in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED
TO BELOW AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR ITS NOMINEE.
THIS NOTE MAY NOT BE
29
EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF
THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 2.04. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Notes of the series designated therein
referred to in the within mentioned Indenture.
[________________________________],
as Trustee
By: _______________________
Authorized Officer
ARTICLE THREE
THE NOTES
SECTION 3.01. Title and Terms.
(1) The aggregate Initial Principal Amount of Notes that may
be authenticated and delivered under this Indenture is limited to
$450,000,000, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for (including through an
Exchange Offer), or in lieu of, other Notes pursuant to Section 3.04, 3.06,
3.08, 10.06 or 12.09.
The Series A Notes shall be designated the "Series A Floating
Rate Insured Notes due January 21, 2017" (which are referred to in the
Insurance Policy as the "Series A Floating Rate Notes due 2017") and shall
be issued in an aggregate Initial Principal Amount of $300,000,000. The
Series A Notes shall have the terms and conditions set forth in Exhibit A
and in this Indenture.
(2) One or more series of Additional Notes may be
authenticated and delivered under this Indenture, in each case pursuant to
an indenture supplemental hereto (a "Supplemental Indenture") substantially
in the form of Exhibit Q. Each series of Additional Floating Rate Notes
shall have the terms and conditions set forth in Exhibit A, and in this
Indenture subject to such insertions, omissions, substitutions and
variations as may be provided in the corresponding Supplemental Indenture.
Each series of Additional Fixed Rate Notes shall have the terms and
conditions set forth in this Indenture and in the Supplemental Indenture
corresponding to such issuance.
30
SECTION 3.02. Denominations.
The Notes of each series shall be issuable only in fully
registered form without coupons and in principal amounts only in
denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by any of
its Authorized Officers, attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the Authorized Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of such
Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes of each series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Notes; and the
Trustee shall authenticate and deliver such Notes in accordance with such
Company Order.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note
a certificate of authentication substantially in the form provided for in
this Indenture executed by the Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder and never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for
cancellation as provided in Section 3.11, for all purposes of this
Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.04. Temporary Notes.
Pending the preparation of definitive Notes of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Notes that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.
31
If temporary Notes of any series are issued, the Company will
cause definitive Notes of that series to be prepared without unreasonable
delay. After the preparation of definitive Notes of such series, the
temporary Notes of such series shall be exchangeable for definitive Notes
of such series upon surrender of the temporary Notes of such series at any
office or agency of the Company designated pursuant to Section 11.02,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Notes of the same series, of any authorized denominations and of
like tenor and aggregate Initial Principal Amount. Until so exchanged, the
temporary Notes of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes of such series and tenor.
SECTION 3.05. Tax Treatment.
The Company shall treat the Notes as debt obligations of MONY
Group for United States federal, state and local tax purposes. By accepting
a Note or a beneficial interest therein, each Holder and beneficial owner
shall be deemed to acknowledge and agree to such treatment and covenant to
take no action inconsistent with such treatment unless otherwise notified
by the Company.
SECTION 3.06. Registration; General Provisions Relating to Transfer and
Exchange; Exchange of Exchange Notes for Original Notes.
(1) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the "Notes Register") in which, subject
to Sections 3.06(2) and 3.07 and to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Trustee is hereby appointed "Notes Registrar" for
the purpose of registering Notes and transfers of Notes as in this
Indenture provided.
Subject to Sections 3.06(2) and 3.07, upon surrender for
registration of transfer of any Note of a series at the office or agency of
the Company designated pursuant to Section 11.02, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more new
Notes of the same series, of any authorized denominations and of like tenor
and aggregate Initial Principal Amount.
At the option of the Holder, Notes of any series may be
exchanged for other Notes of the same series, of any authorized
denominations and of like tenor and aggregate Remaining Principal Amount,
upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes that the
Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt and entitled to
32
the same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange (other than in connection with an Exchange Offer,
which is governed by subsection (3) of this Section 3.06) shall (if so
required by the Company or Notes Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Notes Registrar duly executed, by the Holder thereof or
such Holder's attorney duly authorized in writing and, in the case of any
Note that bears the Legend referred to in Section 2.02(1)(a), a certificate
in the form of Exhibit B duly executed by the transferor Holder or such
Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Notes.
If the Notes are to be redeemed in part, the Company shall not
be required (A) to issue, register the transfer of or exchange any Notes of
any series during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of the Notes and
ending at the close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Note in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(2) The provisions of clauses (a), (b), (c) and (d) below
shall apply only to Global Notes:
(a) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary or its nominee and
delivered to the Depositary or its nominee or custodian, and each such
Global Note shall constitute a single Note for all purposes of this
Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes in
certificated form, and no transfer of a Global Note in whole or in
part may be registered, in the name of any Person other than the
Depositary or its nominee unless (i) the Depositary (x) has notified
the Company that it is unwilling or unable to continue as a depositary
for such Global Note or (y) has ceased to be a clearing agency
registered under the Exchange Act, (ii) Euroclear or Clearstream, as
the case may be, (x) is closed for business for a continuous period of
14 days (other than by reason of statutory or other holidays) or (y)
announces an intention permanently to cease business or does in fact
do so, or (iii) there shall have occurred and be continuing an Event
of Default.
(c) Subject to clause (b) above, any exchange of a Global Note
for other Notes may be made in whole or in part, and all Notes issued
in exchange for
33
a Global Note or any portion thereof shall be registered in such names
as the Depositary shall direct.
(d) Every Note authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Note or any
portion thereof, whether pursuant to this Section, Section 3.04, 3.08,
10.06 or 12.09 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Note, unless such Note is
registered in the name of a Person other than the Depositary or its
nominee.
(3) The Original Notes may be exchanged for Exchange Notes
pursuant to the terms of an Exchange Offer. The Trustee and the Notes
Registrar shall make the exchange as follows:
The Company shall present the Trustee with an Officer's
Certificate certifying the following:
(A) upon issuance of the Exchange Notes, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of each series of Original Notes
properly tendered in the Exchange Offer that are represented by a Global
Note and the principal amount of each series of Original Notes properly
tendered in the Exchange Offer that are represented by Restricted
Certificated Notes; the name of each Holder of such Restricted Certificated
Notes; the principal amount properly tendered in the Exchange Offer by each
such Holder; and the name and address to which certificated Exchange Notes
shall be registered and sent for each such Holder.
The Trustee, upon receipt of (i) such Officer's Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Exchange Notes have
been registered under Section 5 of the Securities Act and this Indenture
has been qualified under the TIA and (y) with respect to the matters set
forth in Section 3(d)(xvii) of the Registration Rights Agreement and (iii)
a Company Order, shall authenticate (A) a Global Note for each series of
Exchange Notes in aggregate principal amount equal to the aggregate
principal amount of the corresponding series of Original Notes represented
by a Global Note indicated in such Officer's Certificate as having been
properly tendered and (B) certificated Exchange Notes representing Exchange
Notes registered in the names and in the principal amounts indicated in
such Officer's Certificate.
If the principal amount at maturity of the Global Note for a
series of Exchange Notes is less than the principal amount at maturity of
the Global Note for the corresponding series of Original Notes, the Trustee
shall make an endorsement on such Global Note for the corresponding series
of Original Notes indicating a reduction in the principal amount at
maturity represented thereby.
The Trustee shall deliver such certificated Exchange Notes to
the Holders thereof as indicated in such Officer's Certificate.
34
SECTION 3.07. Restrictions on Transfer.
(1) Each Holder and beneficial owner of any Original Note
shall be deemed to have represented and agreed as follows (terms used in
this Section 3.07(1) that are defined in Rule 144A, Regulation D or
Regulation S are used in this Indenture as defined therein):
(a) Such Holder or beneficial owner either:
(i) (x) is a QIB, (y) is aware that the sale of such
Note to it is being made in reliance on Rule 144A, and (z) is
acquiring such Note for its own account or the account of a
QIB,
(ii) (x) is an Institutional Accredited Investor
purchasing such Note for its own account, and (y) is not
acquiring such Note with a view to any resale or distribution
thereof other than in accordance with the restrictions set
forth in this Section 3.07, or
(iii) is a non-U.S. person acquiring such Note in an
offshore transaction in reliance on Regulation S.
(b) Such Holder or beneficial owner understands that such Note
has not been and will not be registered under the Securities Act and
may not be reoffered, resold, pledged or otherwise transferred except
(i)(x) to a Person who such Holder or beneficial owner reasonably
believes is a QIB in a transaction meeting the requirements of Rule
144A, (y) in an offshore transaction complying with Rule 903 or Rule
904 of Regulation S, or (z) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if
available) and (ii) in accordance with all applicable securities laws
of the states of the United States and other jurisdictions. The
purchaser further understands that, if it is not a QIB, such Note
purchased by it may not be held in book-entry form until they have
been transferred in accordance with the foregoing restrictions and no
such transfer will be permitted unless the purchaser provides
certification that the transfer complies with the restrictions set
forth in this Section 3.07.
(2) Notwithstanding any other provisions of this Indenture or
the Notes, transfers of a Global Note, in whole or in part, and transfers
of interests in Global Notes shall be made only in accordance with this
Section 3.07(2).
(a) Restricted Global Note to Temporary Regulation S Global
Note. If the holder of a beneficial interest in any Restricted Global
Note wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in the Temporary Regulation S Global Note of the same series, such
transfer may be effected, subject to the rules and procedures of the
Depositary, Euroclear and Clearstream, in each case to the extent
applicable (the "Applicable Procedures") and, only in accordance with
the provisions of this Section 3.07(2)(a). Upon receipt by the
Trustee, as Notes Registrar, at its office in The City of New York of
(1) written instructions given in accordance with the
35
Applicable Procedures from an Agent Member directing the Trustee to credit
or cause to be credited to the account of a specified Agent Member (which
shall be the Agent Member for Euroclear or Clearstream or both, as the case
may be) a beneficial interest in such Temporary Regulation S Global Note in
a principal amount equal to that of the beneficial interest in such
Restricted Global Note of the same series to be so transferred, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member (and the Euroclear or
Clearstream account, as the case may be) to be credited with, and the
account of the Agent Member to be debited for, such beneficial interest and
(3) a certificate in substantially the form set forth in Exhibit C-1 given
by the holder of such beneficial interest, the Trustee, as Notes Registrar,
shall instruct the Depositary to reduce the Initial Principal Amount of
such Restricted Global Note, and to increase the Initial Principal Amount
of such Temporary Regulation S Global Note, by the principal amount of the
beneficial interest in such Restricted Global Note to be so transferred,
and to credit or cause to be credited to the account of the Person
specified in such instructions (which shall be the Agent Member for
Euroclear or Clearstream or both, as the case may be) a beneficial interest
in such Temporary Regulation S Global Note having a principal amount equal
to the amount by which the Initial Principal Amount of such Restricted
Global Note was reduced upon such transfer.
(b) Restricted Global Note to Regulation S Global Note. If the
holder of a beneficial interest in any Restricted Global Note wishes at any
time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Regulation S Global
Note of the same series, such transfer may be effected, subject to the
Applicable Procedures and only in accordance with this Section 3.07(2)(b).
Upon receipt by the Trustee, as Notes Registrar, at its office in The City
of New York of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee to credit
or cause to be credited to the account of a specified Agent Member's
account a beneficial interest in such Regulation S Global Note in a
principal amount equal to that of the beneficial interest in such
Restricted Global Note to be so transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member (and, in the case of any such transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the case
may be, for which such Agent Member's beneficial interest is held) to be
credited with, and the account of the Agent Member to be debited for, such
beneficial interest, and (3) a certificate in substantially the form set
forth in Exhibit C-2 given by the holder of such beneficial interest, the
Trustee, as Notes Registrar, shall instruct the Depositary to reduce the
Initial Principal Amount of such Restricted Global Note, and to increase
the Initial Principal Amount of such Regulation S Global Note, by the
principal amount of the beneficial interest in such Restricted Global Note
to be so transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in such
Regulation S Global Note having a principal amount equal to the amount by
which the Initial Principal Amount of the Restricted Global Note was
reduced upon such transfer.
36
(c) Temporary Regulation S Global Note or Regulation S Global
Note to Restricted Global Note. If the holder of a beneficial interest in
any Temporary Regulation S Global Note or Regulation S Global Note wishes
at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Restricted
Global Note of the same series, such transfer may be effected, subject to
the Applicable Procedures and only in accordance with this Section
3.07(2)(c). Upon receipt by the Trustee, as Notes Registrar, at its office
in The City of New York of (1) written instructions given in accordance
with the Applicable Procedures from an Agent Member, directing the Trustee
to credit or cause to be credited to the account of a specified Agent
Member a beneficial interest in such Restricted Global Note in a principal
amount equal to that of the beneficial interest in such Temporary
Regulation S Global Note or Regulation S Global Note to be so transferred,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member to be
credited with, and the account of the Agent Member to be debited for, such
beneficial interest and (3) with respect to a transfer of a beneficial
interest in such Temporary Regulation S Global Note or Regulation S Global
Note, a certificate in substantially the form set forth in Exhibit C-3
given by the holder of such beneficial interest, the Trustee, as Notes
Registrar, shall instruct the Depositary to reduce the Initial Principal
Amount of such Temporary Regulation S Global Note or Regulation S Global
Note, as the case may be, and to increase the Initial Principal Amount of
such Restricted Global Note, by the principal amount of the beneficial
interest in such Temporary Regulation S Global Note or Regulation S Global
Note, and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in such Restricted
Global Note having a principal amount equal to the amount by which the
Initial Principal Amount of such Temporary Regulation S Global Note or
Regulation S Global Note, as the case may be, was reduced upon such
transfer.
(d) Restricted Certificated Note to Global Note. If the Holder
of a Restricted Certificated Note wishes at any time to transfer all or a
portion of such Note to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Restricted Global Note, the Regulation
S Global Note or Temporary Regulation S Global Note of the same series,
such transfer may be effected, subject to the Applicable Procedures and
only in accordance with this Section 3.07(2)(d). Upon receipt by the
Trustee, as Notes Registrar, at its office in The City of New York of (1)
such Restricted Certificated Note as provided in Section 3.06, and written
instructions satisfactory to the Notes Registrar directing the Trustee to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Restricted Global Note, the Temporary Regulation
S Global Note or Regulation S Global Note, as the case may be, in a
principal amount equal to the Initial Principal Amount of the Restricted
Certificated Note (or portion thereof) to be so transferred, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member (which shall, in the
case of any transfer to a Person who wishes to take delivery in the form of
a beneficial
37
interest in the Regulation S Global Note, be the Agent Member for Euroclear
or Clearstream or both, as the case may be) and, in the case of any
transfer pursuant to Regulation S, the Euroclear or Clearstream account, as
the case may be, for which such Agent Member's account is held, to be
credited with such beneficial interest, and (3) a certificate substantially
in the form set forth in Exhibit C-4, if the specified account is to be
credited with a beneficial interest in a Restricted Global Note, or Exhibit
C-5, if the specified account is to be credited with a beneficial interest
in the Regulation S Global Note, or Exhibit C-6, if the specified account
is to be credited with a beneficial interest in the Temporary Regulation S
Global Note, duly executed by such Holder or such Holder's attorney duly
authorized in writing, the Trustee, as Notes Registrar, shall cancel such
Restricted Certificated Note and shall instruct the Depository to increase
the Initial Principal Amount of such Restricted Global Note, Temporary
Regulation S Global Note or Regulation S Global Note by the Initial
Principal Amount of the Restricted Certificated Note to be transferred and
to credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in such Restricted Global Note
having a principal amount equal to the amount by which the Initial
Principal Amount of such Restricted Certificated Note was reduced upon such
transfer. Restricted Certificated Notes may not otherwise be exchanged for
Global Notes or for beneficial interests in Global Notes.
(e) Temporary Regulation S Global Notes. After the Restricted
Period, if the holder of a beneficial interest in a Temporary Regulation S
Global Note wishes to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in such Temporary
Regulation S Global Note, such transfer may be effected, subject to the
Applicable Procedures only in accordance with this Section 3.07(2)(e). Upon
delivery (A) by a beneficial owner of an interest in a Temporary Regulation
S Global Note to Euroclear or Clearstream, as the case may be, of a
certificate substantially in the form of Exhibit C-7, (B) by the transferee
of such beneficial interest in the Temporary Regulation S Global Note to
Euroclear or Clearstream, as the case may be, of a written certification
substantially in the form set forth in Exhibit C-8, and (C) by Euroclear or
Clearstream, as the case may be, to the Trustee, as Notes Registrar, of a
certificate substantially in the form of Exhibit C-9, the Trustee may
direct either Euroclear or Clearstream, as the case may be, to reflect on
its records the transfer of a beneficial interest in the Temporary
Regulation S Global Note from such beneficial owner to such transferee.
(f) Temporary Regulation S Global Note to Regulation S Global
Note. Interests in a Temporary Regulation S Global Note may be exchanged
for interests in a Regulation S Global Note of the same series only on or
after the termination of the Restricted Period after delivery by a
beneficial owner of an interest therein to Euroclear or Clearstream of a
certificate substantially in the form of Exhibit C-7, and upon delivery by
Euroclear or Clearstream to the Trustee of a certification substantially in
the form set forth in Exhibit C-9. Upon receipt of such certification, the
Trustee will exchange the portion of the Temporary
38
Regulation S Global Note covered by such certification for a
beneficial interest in a Regulation S Global Note of the same series.
(3) Interests in the Temporary Regulation S Global Note to be
Held Through Euroclear or Clearstream. Until the termination of the
Restricted Period, interests in the Temporary Regulation S Global Notes may
be held only through Agent Members acting for and on behalf of Euroclear
and Clearstream, provided that this clause (3) shall not prohibit any
transfer in accordance with Section 3.07(2).
SECTION 3.08. Mutilated, Destroyed, Lost and Stolen Notes.
(1) If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Note of the same series and of like tenor and
Initial Principal Amount and bearing a number not contemporaneously
outstanding.
(2) If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Note and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Note has been acquired by
a bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Note, a new Note of the same series and of like tenor and Initial Principal
Amount and bearing a number not contemporaneously outstanding.
(3) If any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
(4) Upon the issuance of any new Note under this Section, the
Company or the Trustee 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 (including the fees and expenses of the
Trustee) connected therewith.
(5) Every new Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
(6) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 3.09. Payment of Principal and Interest.
(1) All payments of the principal of, Redemption Price, if
any, interest on and other amounts in respect of the Restricted
Certificated Notes or other certificated
39
Notes shall be payable at the office or agency of the Company maintained
for that purpose pursuant to Section 11.02 and at any other office or
agency maintained by the Company for that purpose (each, a "Place of
Payment"); provided, however, that at the option of the Company payment of
interest may be made by wire transfer or by check mailed to the address of
the Person entitled thereto as such address shall appear in the Note
Register. All payments of the principal of, Redemption Price, if any,
interest on and other amounts under the Global Notes, shall be made to the
Depositary or its nominee, as the holder thereof. Payment to or credit to
the accounts of owners of beneficial interests in such Notes will be
effected pursuant to the procedures and customary practices of the
Depositary and its Agent Members.
(2) Interest on any Note (including overdue interest and
interest thereon) that is payable on any Scheduled Payment Date shall be
paid to the Person in whose name that Note (or one or more Predecessor
Notes) is registered at the close of business on the Regular Record Date
for such interest.
(3) Each Note delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Note shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
(4) Amounts properly withheld under the Code by any Person
from a payment to any Holder of interest and/or principal and/or Redemption
Price and/or Liquidated Damages shall be considered as having been paid by
the Company, or the Insurer if applicable, to such Holder for all purposes
of this Indenture.
SECTION 3.10. Persons Deemed Owners.
(1) Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Note is registered as the
owner of such Note for the purpose of receiving payment of principal of,
Redemption Price, if any, and any interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
(2) Neither any Agent Member nor any other Person on whose
behalf any Agent Member may act (including Euroclear and Clearstream and
account holders and participants in Euroclear or Clearstream) shall have
any rights under this Indenture with respect to any Global Note registered
in the name of the Depositary or its nominee, or under any Global Note, and
the Depositary or its nominee, as the case may be, shall be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Note (including all Notes
represented thereby) for all purposes whatsoever. Notwithstanding the
foregoing, nothing in this Indenture shall prevent the Company, the Trustee
or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be as between such Depositary,
its Agent Members and any other Person on whose behalf an Agent Member may
act, the operation
40
of customary practices of such Persons governing the exercise of the rights
of any Holder.
(3) For so long as Notes are represented by Global Notes, the
Company and the Trustee may request, accept and rely upon a certificate or
letter of confirmation signed on behalf of the Depositary, or any form of
record executed by it, to the effect that at any particular time or
throughout any particular period any particular Person is, was or will be
shown in its records as entitled to a particular interest in the Global
Notes.
SECTION 3.11. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated hereunder that the Company has not issued and
sold, and all Notes so delivered shall be promptly cancelled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any
Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes held by the Trustee shall be
destroyed by the Trustee unless the Trustee shall be directed by a Company
Order to return the cancelled Notes to the Company.
SECTION 3.12. CUSIP, ISIN and Common Code Numbers.
The Company in issuing the Notes may use CUSIP, ISIN and
Common Code numbers and, if so, the Trustee shall use CUSIP, ISIN and
Common Code numbers in notices of redemption as a convenience to Holders;
provided that the Trustee shall assume no responsibility for the accuracy
of such numbers and any such redemption shall not be affected by any defect
in or omission of such numbers.
ARTICLE FOUR
DEBT SERVICE COVERAGE ACCOUNT
SECTION 4.01. Establishment of Debt Service Coverage Account.
(1) The Company shall cause to be established and maintained
as provided in Section 4.01(2) an account, consisting solely of one or more
deposit accounts and/or securities accounts which shall be trust accounts,
the assets held in which shall not be commingled with the general assets of
the Company or the Trustee, in the name of the Trustee, as Trustee for the
benefit of the Secured Parties, which account is referred to as the "Debt
Service Coverage Account". The Trustee shall at all times be an Entitlement
Holder with respect to each such securities account, and a Customer with
respect to each such deposit account. The Debt Service Coverage Account
shall be held by the Trustee and administered by the Trustee for the
benefit of the Secured Parties as provided in this
41
Article Four. The Debt Service Coverage Account shall consist of three
subaccounts: (i) a subaccount for the Ongoing Businesses (the
"DSCA-Subaccount OB"); (ii) a subaccount for Subaccount OB Deposits (the
"DSCA-Subaccount OB (Deposit)"); and (iii) a subaccount for the Closed
Block Business (the "DSCA-Subaccount CBB"). The Company shall deposit into
each of such subaccounts the amounts specified in this Indenture, at the
times and in the manner specified in this Indenture. All products and
proceeds of any amounts deposited in any subaccount, including any
investments or reinvestments of such proceeds, shall be retained in such
subaccount and invested and applied as provided in this Indenture. Funds in
the Debt Service Coverage Account may be withdrawn or applied only as
provided in this Indenture.
(2) The Debt Service Coverage Account shall be established and
maintained by the Trustee in its own name for the benefit of the Secured
Parties at its Corporate Trust Office, and all assets held in the Debt
Service Coverage Account shall be held either directly in such office or at
subaccounts held in the name of the Trustee. The Trustee shall have sole
Control over, and shall be the only party entitled to withdraw funds from,
the Debt Service Coverage Account; provided, that the Investment Manager
shall be entitled to withdraw assets from such accounts, solely for
investment management purposes pursuant to the applicable investment
management agreement, and cash solely on a cash against delivery basis. The
parties agree that New York law shall be the law of the jurisdiction of the
securities intermediary or depositary bank, as applicable, with respect to
the Debt Service Coverage Account and each of its subaccounts, and Bank One
Trust Company, N.A. (or any successor Trustee) agrees, in its individual
capacity, to treat all assets credited to the Debt Service Coverage Account
or any of its subaccounts, other than money, as "financial assets" within
the meaning of the UCC.
(3) For purposes of this Indenture, all determinations as to
the fair market value of assets held in the Debt Service Coverage Account
or any subaccount thereof shall be made by the Investment Manager except as
otherwise provided herein. For such purpose, the Investment Manager will
value commercial paper at amortized cost and for other assets will use
valuations provided to it by Interactive Data Corp., or any successor
thereto, or from such other source as may be designated by the Investment
Manager, and agreed to by the Company, and consented to by the Insurer,
such consent not to be unreasonably withheld.
SECTION 4.02. Initial Deposit in DSCA-Subaccount OB.
On the Closing Date, the Company shall deposit in the
DSCA-Subaccount OB $60,000,000. On the date of issuance of each series of
Additional Notes, the Company shall deposit in the DSCA-Subaccount OB 20%
of the gross proceeds from the issuance of such Additional Notes.
SECTION 4.03. Deposits in the DSCA-Subaccount CBB.
The Company shall deposit in the DSCA-Subaccount CBB (i) all
dividends paid by MONY Life to the Company attributable to MONY Life's
Closed
42
Block Business as provided in Section 14.01, (ii) any net tax payments paid by
or on behalf of MONY Group to the Company pursuant to the CBB Tax Agreement or
any related written instructions issued by MONY Group as to payments under the
CBB Tax Agreement, and (iii) any net payments made to the Company by the Swap
Counterparty or the credit support provider under the Swaps. The Company shall
deposit any such amounts into the DSCA-Subaccount CBB not later than the fifth
Business Day following receipt and reconciliation by the Company of such amount.
The Trustee shall deliver quarterly, or as may be requested by the Company, a
Notice in the form set forth in Exhibit M (a "Notice of Account Deposit"), to
the Company, with a copy to the Insurer, confirming its receipt of each deposit
made to the DSCA-Subaccount CBB and that the Trustee has credited such deposit
to the DSCA-Subaccount CBB.
SECTION 4.04. Provision of Information by the Company.
(1) Not later than the Assessment Date relating to each Scheduled
Payment Date the Company shall deliver to the Trustee a notice in the form set
forth in Exhibit J (each, a "Notice of Due Payments"), specifying the following
amounts and other information (to the extent arising on or after the date of the
immediately preceding notice delivered pursuant to this Section 4.04(1)):
(a) (i) any third-party out-of-pocket costs incurred by the Company
with respect to the Notes, other than fees and expenses of the Trustee,
that are due and payable on or prior to such Scheduled Payment Date as
provided in Section 4.05(1)(b) and (ii) the fees and expenses of the
Trustee with respect to the Notes and the trust as limited by the
application by the Company of Exhibit G (the Trustee having provided
information to the Company prior to the Assessment Date as to its fees and
expenses that are payable on or prior to such Scheduled Payment Date),
(b) any other ongoing expenses incurred directly by the Company
attributable to the Closed Block Business (including accounting fees,
administrative expenses, etc.) that are due and payable on or prior to such
Scheduled Payment Date as provided in Section 4.05(1)(c) as limited by the
application by the Company of Exhibit G,
(c) any net payments due and payable under the Swaps by the Company to
any Swap Counterparty on or prior to such Scheduled Payment Date (excluding
any termination payments),
(d) any amounts, including without limitation indemnity or
reimbursement payments, that are due and payable to the Insurer under the
Insurance Agreement or this Indenture on or prior to such Scheduled Payment
Date (including payment of premium), and amounts previously paid by the
Insurer to the Holders under the Insurance Policy or to any Swap
Counterparty under the Swap Policy,
43
(e) any dividends paid by MONY Life to the Company attributable to
MONY Life's Closed Block Business as provided in Section 14.01 and the
amount of any distribution to be made by the Company to MONY Group from
such funds, in each case on or prior to such Scheduled Payment Date,
(f) a list of assets to be liquidated pursuant to any required
liquidation of assets under Section 4.05(3) on or prior to such Scheduled
Payment Date and the priority in which such assets are to be liquidated,
(g) any termination payments associated with the Swaps due and payable
by the Company to the Swap Counterparty on or prior to such Swap Payment
Date, and
(h) any and all Liquidated Damages payable on or prior to such
Scheduled Payment Date.
(2) Not later than the Assessment Date relating to each Tax Payment
Date, the Company shall deliver to the Trustee a notice in the form set forth in
Exhibit K (each, a "Notice of Due Tax Payments") specifying (i) the date of such
Tax Payment Date, (ii) net payments due and payable on or prior to such Tax
Payment Date by or to the Company under any Tax Agreement, and for each such
payment, its amount, the source of payment and its payor and recipient,
including the amount of taxes due with respect to the assets and earnings of
each of the DSCA-Subaccount CBB, the DSCA-Subaccount OB and the DSCA-Subaccount
OB (Deposit) for the relevant tax period on or prior to such Tax Payment Date,
as the case may be or (iii) that there are no such payments due and payable
under any Tax Agreement.
(3) On each Assessment Date relating to a Scheduled Payment Date, the
Company shall deliver to the Trustee a notice in the form set forth in Exhibit N
(each, a "Notice of Current Ratings"), which shall set forth:
(i) the financial strength rating assigned to MONY Life by each
of Xxxxx'x, Standard & Poor's, Fitch and A.M. Best, if so rated, or if
not so rated, a statement to that effect; and
(ii) the rating assigned to the long-term, senior, unsecured debt
of MONY Group by each of Xxxxx'x or Standard & Poor's, if so rated, or
if not so rated, a statement to that effect.
(4) A copy of every notice delivered by the Company or the Trustee
pursuant to this Section 4.04 shall also be provided to the Insurer at the same
time as provided to or by the Trustee.
(5) Not later than the Business Day prior to the Scheduled Payment
Date, the Company shall deliver to the Trustee a notice setting forth the
Three-Month LIBOR rate for the Interest Period commencing on such Scheduled
Payment Date.
44
SECTION 4.05. Withdrawal and Application of Funds.
(1) On each Scheduled Payment Date or Tax Payment Date the Trustee
shall apply the funds on deposit in the Debt Service Coverage Account in
reliance, without independent verification, on the basis of the Notice of Due
Payments and/or the Notice of Due Tax Payments and other information provided to
it (and to the Insurer) by the Company, as specified in Section 4.05(2) in the
following priority:
(a) (i) to make any net Tax Payments due and payable by the Company
under the CBB Tax Agreement on or prior to such date, as set forth in
the Notice of Due Tax Payments delivered in relation to that Tax
Payment Date,
(ii) to make (x) any net Tax Payments due and payable by the
Company under the OB Tax Agreement on or prior to such date and (y)
any net tax payments due and payable with respect to the assets and
earnings of each of the DSCA-Subaccount CBB, DSCA-Subaccount OB and
the DSCA-Subaccount OB (Deposit), as set forth in the Notice of Due
Tax Payments delivered in relation to that Tax Payment Date;
(b) to pay fees of the Investment Manager and any third-party
out-of-pocket costs incurred, and due and payable on or prior to such
Scheduled Payment Date, by the Company with respect to the Notes, including
any such fees and expenses of the Trustee with respect to the Notes and the
trust, to the extent, as determined by the Company, limited by the
application of Exhibit G, and as set forth in the applicable Notice of Due
Payments delivered in relation to such Scheduled Payment Date;
(c) so long as the Insurer has not given the Trustee notice of the
occurrence and continuation of an Event of Default, to pay other ongoing
expenses incurred directly by the Company and due and payable on or prior
to such date and attributable to the Closed Block Business, to the extent,
as determined by the Company, limited by the application of Exhibit G, and
as set forth in the applicable Notice of Due Payments delivered in relation
to such Scheduled Payment Date;
(d) to pay the net amounts due and payable by the Company to the Swap
Counterparty on or prior to such Scheduled Payment Date under the Swaps
(excluding any termination payments), and as set forth in the applicable
Notice of Due Payments delivered in relation to such Scheduled Payment
Date;
(e) to pay the premium and commitment fee due and payable to the
Insurer on or prior to such Scheduled Payment Date pursuant to the
Insurance Agreement, as set forth in the applicable Notice of Due Payments
delivered in relation to such Scheduled Payment Date;
(f) to pay, reimburse, indemnify or repay the Insurer for all amounts
that the Company is obligated to pay, reimburse, indemnify or repay the
Insurer
45
pursuant to the Insurance Agreement on or prior to such Scheduled Payment
Date, as specified to the Trustee by the Company in the relevant Notice of
Due Payments, including: (i) for any outstanding amounts paid by the
Insurer to the Swap Counterparty under the Swaps or the Swap Policy, (ii)
for any outstanding amounts paid by the Insurer to Holders pursuant to or
in respect of amounts payable under the Insurance Policy, and (iii) for any
indemnity payments and other amounts due and payable by the Company to the
Insurer pursuant to the Insurance Agreement (including interest on such
amounts as provided under the Insurance Agreements), in each case on or
prior to such date and as set forth in the applicable Notice of Due
Payments delivered in relation to such Scheduled Payment Date;
(g) to pay any interest on the Notes due and payable on or prior to
such Scheduled Payment Date (including interest on such amounts, to the
extent provided under the terms of the Notes), as determined by the Trustee
(provided that if there are not sufficient amounts to make all such
payments, the amounts available shall be paid out), pro rata among each of
the series of Notes according to the aggregate relative amounts of interest
(including interest on such amounts) due and payable on each series of
Notes on or prior to such date, and then such amount for each series shall
be allocated pro rata among the Notes of such series according to the
relative amounts of interest (including interest on such amounts) due and
payable on each Note of such series, without any preference of one Note or
series over the other;
(h) to pay any Liquidated Damages to the Holders due and payable on or
prior to such Scheduled Payment Date (including interest on such amounts if
provided), as set forth in the Notice of Due Payments, pro rata to the
Holders in accordance with the relative Liquidated Damages due and payable
to each Holder on or prior to such date;
(i) to repay any principal of the Notes due and payable on or prior to
such Scheduled Payment Date, as determined by the Trustee (provided that if
there are not sufficient amounts to make all such payments, the amounts
available shall be paid out), pro rata among each series of Notes according
to the relative aggregate amounts of principal due and payable on the Notes
of each such series on or prior to such date, and then such amount for each
series shall be allocated pro rata among the Notes of such series according
to the relative amounts of principal due and payable on each Note of such
series, without any preference of one Note or series over the other;
(j) if the Trustee has received notice from the Insurer of the
occurrence and continuation of an Event of Default, to pay any ongoing
expenses incurred directly by the Company referred to in Section
4.05(1)(c);
(k) to pay any termination payments in respect of the Swaps to the
Swap Counterparty, as set forth in the applicable Notice of Due Payments
delivered in relation to such Scheduled Payment Date;
46
(l) to repay any Inter-Business Loan in accordance with Section
4.07(2) from the DSCA-Subaccount CBB to the DSCA-Subaccount OB or the
DSCA-Subaccount OB (Deposit), as applicable; and
(m) after the foregoing priorities are satisfied in full, to release
any excess funds to the Ongoing Business within the Company outside the
DSCA - Subaccount OB or DSCA - Subaccount OB (Deposit); provided, however,
that after the release of such excess funds the aggregate market value of
all subaccounts of the Debt Service Coverage Account as determined by the
Investment Manager as of the relevant Valuation Date shall not be less than
the lesser of (i) 100% of the aggregate Remaining Principal Amount of the
Notes and (ii) 25% of the aggregate Initial Principal Amount of the Notes
(such determination to be made, if necessary, by the Company in writing,
provided to the Insurer and confirmed by the Trustee).
After the foregoing priorities are satisfied in full and the Notes are
paid in full and all other amounts due and payable to the Insurer are paid in
full, all remaining funds in the subaccounts of the Debt Service Coverage
Account shall be released to the Company, which may dividend such funds to MONY
Group.
Except with respect to the tax payments to be made in accordance with
clause (a) above which are to be paid on the Tax Payment Dates, the Trustee
shall make withdrawals from the Debt Service Coverage Account under this Section
only on Scheduled Payment Dates or Special Payment Dates.
(2) Except with respect to the tax payments to be made in accordance
with Clause (1)(a)(ii) above, in making the payments specified in Section
4.05(1) the Trustee shall first withdraw Cash and then liquidate non-Cash assets
(as set forth in Section 4.05(3)) first from the DSCA-Subaccount CBB; next, only
if and to the extent necessary, from the DSCA-Subaccount OB; and then next, only
if and to the extent necessary, from the DSCA-Subaccount OB (Deposit). Each tax
payment specified in clause (y) of Section 4.05(1)(a)(ii) shall be made from the
account to which it relates, and the tax payment specified in clause (x) of
Section 4.05(1)(a)(ii) shall be made from the DSCA-Subaccount OB.
(3) If there is insufficient Cash in any subaccount of the Debt
Service Coverage Account on any Scheduled Payment Date or Tax Payment Date to
make the payments required to be made on such date as provided in Section
4.05(1), but there are assets other than Cash held in such account, the Trustee
shall, not later than the close of business on the Business Day immediately
following the Assessment Date, liquidate such other assets in the order
specified by the Company in an amount sufficient to generate proceeds to satisfy
such payments on such date.
(4) On the Closing Date, the initial premium and the initial
commitment fee payment will be paid to the Insurer from the DSCA-Subaccount CBB
(which will be funded by an Inter-Business Loan in the aggregate amount of such
payments from the DSCA-Subaccount OB to the DSCA-Subaccount CBB). In addition,
47
upon the issuance of any series of Additional Notes, the initial premium
payable to the Insurer in respect of such Additional Notes will be paid by the
DSCA-Subaccount CBB (whether directly or through an Inter-Business Loan) on the
closing date of such issuance. The Trustee shall make such payments at the
written direction of the Company.
SECTION 4.06. Statement of Account.
(1) Not later than three days following each Scheduled Payment Date
and Tax Payment Date, the Trustee shall deliver to the Company a statement of
account in the form set forth in Exhibit I (each, a "Statement of Account")
specifying:
(a) all withdrawals made from each subaccount of the Debt Service
Coverage Account on or prior to such date and after the immediately
preceding Scheduled Payment Date or Tax Payment Date, specifying the
subaccount, the recipient of the payment, and the date and amount paid;
(b) the title and principal amount of each non-Cash asset in each
subaccount of the Debt Service Coverage Account liquidated by the Trustee
pursuant to Section 4.05(3) on or prior to such date and after the
immediately preceding Scheduled Payment Date or Tax Payment Date,
specifying the amount of proceeds received;
(c) the amount of Cash and the title and principal amount of each
non-Cash asset held in each subaccount of the Debt Service Coverage Account
after giving effect to all payments made on or prior to such date;
(d) all Subaccount OB Deposits made pursuant to Section 4.08 on or
prior to such date and after the immediately preceding Scheduled Payment
Date or Tax Payment Date;
(e) based upon the accounting records of the Company reported to the
Trustee as contemplated in Section 4.07(2), the outstanding principal
amount of all outstanding Inter-Business Loans on such date and the amount
of interest accrued thereon and if, on or prior to such date and after the
immediately preceding Scheduled Payment Date, the Trustee has utilized
funds held in the DSCA-Subaccount OB or the DSCA-Subaccount OB (Deposit) to
fund an Inter-Business Loan, or funds in the DSCA-Subaccount CBB to repay
an outstanding Inter-Business Loan, the amount of the Inter-Business Loan,
the source of funds for the Inter-Business Loan, and the date of the
Inter-Business Loan, and the outstanding principal amount of all
Inter-Business Loans on such date and the amount of interest accrued
thereon and if, on or prior to such date and after the immediately
preceding Scheduled Payment Date, the date of repayment of such
Inter-Business Loan and the amount of accrued interest paid thereon; and
(f) any amount deposited in the Escrow Account on or prior to such
date and after the immediately preceding Scheduled Payment Date and the use
to which the Trustee applied those funds pursuant to Section 4.05(l).
48
(2) No later than ten days following each Tax Payment Date the Trustee
shall deliver to the Company, with a copy to the Insurer, a Notice of Account
Deposit specifying all amounts deposited into the DSCA-Subaccount CBB pursuant
to any of the Tax Agreements on or prior to such Tax Payment Date and after the
immediately preceding Tax Payment Date.
(3) The Trustee shall also make available each Statement of Account to
the Holders in the manner provided in Section 1.05, and to the Insurer in the
manner provided in Section 1.04(c), each at the same time as such Statement of
Account is provided to the Company.
SECTION 4.07. Inter-Business Loans.
(1) If the Trustee applies funds from the DSCA-Subaccount OB or the
DSCA-Subaccount OB (Deposit) to priorities (a) through (k) referred to in
Section 4.05(1) above (other than amounts payable directly by such Subaccounts
pursuant to Section 4.05(1)(a)(ii)(y) and amounts payable by the DSCA-Subaccount
OB pursuant to Section 4.05(1)(a)(ii)(x)), the Company shall record a loan on
its accounting records (an "Inter- Business Loan"), reflecting the obligation of
the Closed Block Business within the Company to repay such amount to the
DSCA-Subaccount OB or the DSCA-Subaccount OB (Deposit), as applicable. No
Inter-Business Loan shall be evidenced by any note or other documentation other
than through the entries on the Company's accounting records. Each
Inter-Business Loan shall, as calculated by the Company, accrete in principal
value at a rate per annum equal to Three-Month LIBOR plus 1.75% per annum,
compounded quarterly on each Scheduled Payment Date with respect to the Series A
Notes, but shall not require the Closed Block Business to pay interest in cash
on any Inter-Business Loan until the date such Inter-Business Loan is repaid in
full; provided, however, that no interest will accrete or accrue on any and all
outstanding Inter-Business Loan while a Trigger Event shall have occurred and be
continuing.
(2) If, as of any Scheduled Payment Date, the Trustee determines that,
to the extent the amounts held in the DSCA-Subaccount CBB on such date are more
than sufficient to pay in full all the amounts due and payable on such date
referred to in clauses (a) through (k) in Section 4.05(1), and any
Inter-Business Loan remains outstanding (based upon the accounting records of
the Company as reported to the Trustee on the corresponding Assessment Date) on
such date, the Trustee shall withdraw the excess funds held in the
DSCA-Subaccount CBB and transfer such funds first to the DSCA-Subaccount OB
(Deposit) and then to the DSCA-Subaccount OB, as applicable, to the extent
required to repay any Inter-Business Loans then outstanding made from such
subaccounts, respectively, including any interest accrued thereon. The
Inter-Business Loans made from each subaccount shall be repaid in the order of
their incurrence, and such repaid Inter-Business Loans shall also be reported on
Exhibit I.
SECTION 4.08. Subaccount OB Deposits.
(1) For each Scheduled Payment Date, the Trustee shall determine as of
the Assessment Date (which shall be treated as the Base Date for purposes of
49
determining the Estimated Debt Service) whether the aggregate fair market value
of the assets in the Debt Service Coverage Account, as determined by the
Investment Manager as of the related Valuation Date and notified to the Company
and the Trustee by such Assessment Date, after giving effect to all payments to
be made pursuant to priorities (a) through (k) of Section 4.05(1) to be made on
that Scheduled Payment Date, will decline to an amount that is less than or
equal to the aggregate Estimated Debt Service payable on the following four
Scheduled Payment Dates (or the Scheduled Payment Dates remaining until the
Stated Maturity of the latest maturing series of Notes, if less than four), as
calculated by the Company and confirmed by the Trustee, and, if such value will
so decline then the Trustee shall deliver to the Company, with a copy to the
Insurer, a notice in the form set out as Exhibit L (each, a "Notice of Required
Account Deposit") no later than three Business Days prior to such Scheduled
Payment Date, specifying the amount of the required Subaccount OB Deposit and
presenting the calculations on which such determination was made.
(2) If the Company receives any Notice of Required Account Deposit on
any Business Day, the Company will make a deposit (a "Subaccount OB Deposit")
into the DSCA-Subaccount OB (Deposit) in the amount specified in Section 4.08(3)
no later than the close of business on a day that is not later than the
twentieth day following the receipt of such notice. If the Company receives any
Notice of Required Account Deposit on any day that is not a Business Day, the
Company will make such Subaccount OB Deposit no later than the close of business
on a day that is not later than the twentieth day following the first Business
Day to occur after the receipt of such notice. Any such Subaccount OB Deposit
shall be made by the Company from funds derived from any source other than the
Closed Block Business. Not later than one Business Day following the date on
which the Company makes any Subaccount OB Deposit, the Trustee shall deliver to
the Company, with a copy to the Insurer, a Notice of Account Deposit confirming
its receipt of such Subaccount OB Deposit and that the Trustee has credited such
Subaccount OB Deposit to the DSCA-Subaccount OB (Deposit).
(3) Subject to Section 4.08(4), each Subaccount OB Deposit shall be in
an amount sufficient to cause the aggregate amount on deposit in the Debt
Service Coverage Account, after giving effect to all payments to be made
pursuant to priorities (a) through (k) referred to in Section 4.05(1) on such
Scheduled Payment Date, to be equal to the aggregate Estimated Debt Service
payable on the following four Scheduled Payment Dates (or the Scheduled Payment
Dates remaining until the Stated Maturity of the latest maturing series of
Notes, if less than four), as calculated by the Company and confirmed by the
Trustee; provided, however, that in no event will the Subaccount OB Deposit to
be made on a Scheduled Payment Date exceed the aggregate fair market value of
the assets held in the Additional Reserve Account as determined by the Company
as of the relevant Valuation Date.
(4) The aggregate amount of Subaccount OB Deposits made over the
period from the initial issuance of Notes to any point in time in which any
Notes are Outstanding shall not exceed an amount equal to 20% of the aggregate
gross proceeds from the issuance of the Notes up to such point in time.
Subaccount OB Deposits
50
calculated pursuant this Section 4.08 may not be in negative amounts or result
in any withdrawal from the DSCA-Subaccount OB (Deposit).
(5) If any Subaccount OB Deposit is made, the Company shall cause MONY
Life to release an amount equal to the amount of such Subaccount OB Deposit from
the Additional Reserve Account to the Ongoing Businesses simultaneously with the
making of the deposit.
SECTION 4.09. Investment of Funds in Debt Service Coverage Account.
(1) On or prior to the Closing Date, the Company shall enter into, and
shall maintain, an investment management agreement with one or more Affiliates
of MONY Group (together, the "Investment Manager") for the provision of
investment management services relating to the assets held in the Debt Service
Coverage Account. Subject to the provisions of this Section 4.09, the Company
may appoint any successor Investment Manager from time to time. Consent of the
Holders or the Insurer shall not be required for the appointment of an
investment manager that is an Affiliate of the Company, or if not an Affiliate,
meets the Investment Management Criteria. In all other instances, as long as no
Insurer Default has occurred and is continuing, appointment of an investment
manager that is not an Affiliate of the Company will require the consent of the
Insurer. The approval of the Insurer, such approval not to be unreasonably
withheld, shall also be required for the form of any investment management
agreement with an investment manager that is not an Affiliate of the Company.
(2) So long as the Insurer has not given the Trustee notice of the
occurrence and continuation of an Event of Default, the Investment Manager shall
invest, and the Trustee hereby authorizes the Investment Manager to so invest in
the name of the Trustee, the assets in the Debt Service Coverage Account from
time to time in accordance with the DSCA Investment Policy without independent
verification of compliance by the Trustee. If an Event of Default has occurred
and, following notice by the Insurer of such Event of Default, is not cured
within any cure period specified herein under Section 6.01 or if no such cure
period is so specified, within 30 days of receipt of such notice by the Company,
the Insurer (or its designee) shall have the authority to direct the Trustee to
invest the assets in the Debt Service Coverage Account in accordance with the
DSCA Investment Policy and to make all other determinations and to take all
other actions specified herein to be made or taken by the Investment Manager;
provided, that upon cure of such Event of Default, (x) the Insurer shall no
longer have such authority, and (y) the Trustee shall invest such assets only in
accordance with the instructions of the Investment Manager.
SECTION 4.10. Deficiency of Funds in Debt Service Coverage Account.
(1) (a) If, as of close of business on any Assessment Date relating to
a Scheduled Payment Date, the aggregate fair market value of all the assets
held in the Debt Service Coverage Account as of the relevant Valuation
Date, as determined by the Investment Manager and notified to the Company
and the Trustee, after taking into account payments to be made on the next
succeeding
51
Scheduled Payment Date, as set forth in the Notice of Due Payments relating
to such Scheduled Payment Date, is not sufficient (as determined by the
Trustee) to permit payment of all Scheduled Payments with respect to
interest and principal due and payable on the following Scheduled Payment
Date, and with respect to net amounts due and payable by the Company under
the Swaps to the Swap Counterparty determined in accordance with such
Notice of Due Payments, the Trustee shall give notice to the Company and
the Insurer by telephone or telecopy of the amount of such deficiency by
the close of business on such Assessment Date to be confirmed in writing to
the Company and the Insurer by the close of business on such Assessment
Date in the form set forth in and in the manner contemplated by the
Insurance Policy or the Swap Policy, as applicable.
The aggregate deficiencies with respect to principal and interest payable
to Holders and the net payments payable under the Swaps to the Swap
Counterparty, are termed the "Amount of Insured Deficiency".
(b) At the time of the execution and delivery of this Indenture, and
for the purposes of this Indenture, the Trustee shall establish an account
for the benefit of Holders and the Insurer (the "Escrow Account") which
shall be a trust account, the assets held in which shall not be commingled
with the general assets of the Trustee, and over which the Trustee shall
have exclusive control and sole right of withdrawal. The Trustee shall
deposit any amount received by it from the Insurer under the Insurance
Policy in the Escrow Account and distribute such amount only for purposes
of making the Scheduled Payments for which a claim was made. Such amounts
shall be disbursed by the Trustee to Holders in the same manner as
principal and interest payments are to be made with respect to the Notes
under Section 4.05. It shall not be necessary for such payments to be made
by checks or wire transfers separate from the check or wire transfer used
to pay Scheduled Payments with other funds available to make such payments.
However, the amount of any payment of principal of or interest on the Notes
to be paid from the Escrow Account shall be noted in the notice provided by
the Trustee in respect of the Insurance Policy as contemplated in Section
4.10(1)(a). Funds held in the Escrow Account shall not be invested by the
Trustee. Any funds remaining in the Escrow Account following a Scheduled
Payment Date shall, no later than the following Business Day, be remitted
to the Insurer except for funds held for the payment of Notes pursuant to
Section 11.03(3) hereof.
(c) All payments to be made by the Insurer under the Swap Policy shall
be made directly to the Swap Counterparty.
(d) Any funds received by the Trustee as a result of any claim under
the Insurance Policy shall be applied by the Trustee, subject to Section
11.03 hereof, together with the funds, if any, to be withdrawn from the
Debt Service Coverage Account, directly to the payment in full of the
Scheduled Payments due on the Notes (including Notes held for the Trustee's
own account).
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(e) The Trustee shall keep a complete and accurate record through its
SEI Trust System of all funds deposited by the Insurer into the Escrow
Account and the allocation of such funds to payment of interest on and
principal paid in respect of any Note. The Insurer shall have the right to
inspect such records at reasonable times upon one Business Day's prior
notice to the Trustee.
SECTION 4.11. Additional Reserve Account.
(1) The Closed Block Business within MONY Life (but not the Closed
Block) will pay to the Ongoing Businesses within MONY Life certain
administrative payments to facilitate the operation of Article Fourteen hereof
(each an "Administrative Payment"). The Administrative Payments shall be payable
quarterly on the last Business Day of the first month of each quarter,
calculated as of the last day of the prior calendar year on the basis of the
charges set forth in Exhibit F to this Indenture.
(2) By the close of business on each Assessment Date relating to a
Scheduled Payment Date, the Company shall provide a notice to the Trustee and
the Insurer in the form set out in Exhibit P, specifying the Glide Path Actual
Ratio as of such Scheduled Payment Date and presenting the calculations thereof.
The Company shall determine and advise the Insurer, and the Trustee shall
confirm, within three Business Days following such Scheduled Payment Date (which
Scheduled Payment Date shall be the Base Date for purposes of this Section),
whether:
(a) the absolute value of the quantity (A minus B) is greater than
0.0300, where "A" equals the Glide Path Projected Ratio for such Scheduled
Payment Date and "B" equals the Glide Path Actual Ratio for such Scheduled
Payment Date (the amount of any positive excess of such absolute value over
0.0300 being termed the "Ratio Excess" as of such Scheduled Payment Date);
and whether
(b) the aggregate fair market value of the assets held in the Debt
Service Coverage Account, as determined by the Investment Manager as of the
relevant Valuation Date and notified to each of the Company, the Trustee
and the Insurer, after giving effect to any payments to be made pursuant to
priorities (a) through (k) referred to in Section 4.05(1) on such Scheduled
Payment Date and to any deposits made in the Debt Service Coverage Account
on that date is less than (the amount of any such positive shortfall being
termed the "DSCA Shortfall") the greater of:
(x) 10% of the Remaining Principal Amount of the Notes
Outstanding on such Scheduled Payment Date, after giving effect to
any principal payments to be made on such Scheduled Payment Date,
and
(y) the aggregate Estimated Debt Service payable on the
following four Scheduled Payment Dates (or the Scheduled Payment
Dates remaining until the Stated Maturity of the latest maturing
series of
53
Notes, if less than four), as calculated by the Company and confirmed
by the Trustee.
(3) If the Company makes an affirmative determination (which the
Trustee shall confirm) pursuant to (a) or (b) of clause (2) of this Section
4.11, the Trustee shall deliver to the Company, with a copy to the Insurer, a
Notice of Required Account Deposit. On the basis of such Notice of Required
Account Deposit, the Company will cause the Closed Block Business within MONY
Life (but not the Closed Block) to deposit by internal book entry the
Administrative Payments with payment dates succeeding such Scheduled Payment
Date, when and as such Administrative Payments would otherwise be due and which
would otherwise have been payable to the Ongoing Business within MONY Life, in
an additional reserve account held by MONY Life in the Closed Block Business
within MONY Life (the "Additional Reserve Account"), until the next Scheduled
Payment Date as to which the Trustee makes a negative determination pursuant to
(a) and (b) of clause (2) of this Section 4.11; provided, however, that the
aggregate required deposit (or deposits) by internal book entry to the
Additional Reserve Account with respect to such Scheduled Payment Date will not
be greater than the larger of the Glide Path Deviation Excess and the DSCA
Shortfall (if any); and provided, further, however, that at no time will the
amount of the Additional Reserve Account exceed 56% of the aggregate Initial
Principal Amount of the Notes issued prior to such time. Not later than one
Business Day following the date on which the Closed Block Business within MONY
Life (but not the Closed Block) makes any deposit by internal book entry into
the Additional Reserve Account, the Company shall deliver to the Trustee, with a
copy to the Insurer, confirmation of such deposit by internal book entry.
(4) If, as of any Scheduled Payment Date:
(a) the Glide Path Deviation Excess, as determined in accordance with
the notice provided for in Section 4.11(2) hereof relating to such
Scheduled Payment Date, equals zero, and the fair market value of the
assets held in the Debt Service Coverage Account, as determined by the
Investment Manager as of the relevant Valuation Date and notified to the
Company by the Trustee, after giving effect to any deposits to be made to
the Debt Service Coverage Account and any payments to be made pursuant to
priorities (a) through (k) referred to in Section 4.05(1) on such Scheduled
Payment Date, equals or exceeds the greater of:
(x) 10% of the outstanding Remaining Principal Amount of the Notes
Outstanding after giving effect to any principal payments to be made
on that date, and
(y) the aggregate Estimated Debt Service payable on the following
four Scheduled Payment Dates (or the Scheduled Payment Dates remaining
until the Stated Maturity of the latest maturing series of Notes, if
less than four), as calculated by the Company and confirmed by the
Trustee,
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then all funds in the Additional Reserve Account shall be released from the
Additional Reserve Account and paid to the Ongoing Businesses within MONY Life.
Furthermore, upon the release of the Company from its obligations under the
Notes and to the Insurer under the Insurance Agreement, or the satisfaction of
such obligations in full, any amount remaining in the Additional Reserve Account
will be paid to the Ongoing Businesses within MONY Life.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Notes in this Indenture expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(1) either:
(a) all Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 3.08 and (ii) Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation; or
(b) all such Notes not theretofore delivered to the Trustee for
cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b)(i), (ii) or (iii) above, has
deposited or caused to be deposited in the Escrow Account for the
purpose an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for principal and premium, if any, interest to the
date of such deposit (in the case of Notes that have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be, and Liquidated Damages, if any,
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and such amount is available for the payment of principal, the
Redemption Price, if any, and interest in accordance with Section 4.05
and Section 12.09, as applicable, and Liquidated Damages, if any; and
(2) the Company has paid or caused to be paid all other sums payable
by the Company to the Insurer hereunder or pursuant to the Insurance Agreement,
or has been relieved of all obligations hereunder pursuant to Section 6.06 or
Section 12.10; and
(3) the Company has delivered to the Trustee, with a copy to the
Insurer, an Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent in this Indenture provided for relating to the
satisfaction and discharge of this Indenture have been complied with; and
(4) the Insurance Policy and the Swap Policy shall have terminated in
accordance with their terms or otherwise; and
(5) the Swap Agreement shall have terminated and all amounts payable
by the Company to the Swap Counterparty shall have been fully paid.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.07, the
obligations of the Trustee to any Authenticating Agent under Section 7.14 and,
if money shall have been deposited with the Trustee pursuant to Subclause (b) of
clause (1) of this Section 5.01, the obligations of the Trustee under Section
5.02, Section 11.03(3) and Section 12.08, and the obligations of the Company
under Section 15.07(4) shall survive.
SECTION 5.02. Application of Money in the Debt Service Coverage Account and the
Escrow Account.
Subject to the provisions of Section 11.03(3), all money held
with the Trustee in the Debt Service Coverage Account and all money deposited
with the Trustee in the Escrow Account pursuant to Section 4.10, and all money
deposited by the Company pursuant to Section 12.07, shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default.
(1) "Event of Default", wherever used in this Indenture means any one
of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
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(a) the making of any payment by the Insurer under the Insurance
Policy or the Swap Policy; or
(b) the transfer by MONY Life of any Surplus and Related Assets to the
Closed Block other than a transfer to the Closed Block of funds previously
transferred to the Surplus and Related Assets from the Ongoing Businesses
within MONY Life in connection with the Closed Block Tax Sharing Procedure
(it being understood, for the avoidance of doubt, that Surplus and Related
Assets may be transferred to satisfy any obligation to pay benefits,
expenses, taxes and policyholder dividends in respect of policies and
contracts included in the Closed Block at any time, including following an
Event of Default, notwithstanding that any such transfer may constitute an
Event of Default); or
(c) the occurrence of a Bankruptcy Event with respect to MONY Group,
the Company or MONY Life; or
(d) the failure of the Company to make a Scheduled Payment or to pay
the Redemption Price of any Notes, together with any interest payable
thereon, in full when due, or to make a payment under the Swap Agreement in
full when due, and any such default remains unremedied for a period of
three Business Days; or
(e) the failure of the Company to make a Subaccount OB Deposit as
provided in Section 4.08 of this Indenture, and continuance of such default
for a period of 20 days (i) after there has been given, by registered or
certified mail, to the Company by the Trustee or the Insurer a written
notice specifying such default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, or (ii) after the
Company has actual knowledge thereof; or
(f) the default of the Company or MONY Group in the performance, or
breach, of any other covenant or warranty applicable to it under this
Indenture, and continuance of such default or breach for a period of 20
days (90 days in the case of a default in the performance, or breach, of
Section 11.12(1)) (x) after there has been given, by registered or
certified mail, to the Company by the Trustee or the Insurer a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder, or (y)
after the Company or MONY Group, as the case may be, has actual knowledge
of such default or breach on its own part; or
(g) the failure of the security interest in the Collateral granted to
the Secured Parties pursuant to Article Fifteen to be perfected, other than
as a result of any act or omission on the part of the Insurer; or
(h) the default of MONY Group to make or cause to be made payments to
the Company as provided for in the CBB Tax Agreement, and continuance of
such default for a period of ten Business Days after the Company has actual
knowledge of such default; or
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(i) the default of the Company to pay any premium to the Insurer when
due under the Insurance Agreement, and continuance of such default for a
period of three Business Days.
(2) Notwithstanding the foregoing, in the event a dispute arises
between the Company and the Insurer or a representative of the Holders (duly
appointed for such purpose by not less than 66-2/3% in Remaining Principal
Amount of the Notes Outstanding) (the "representative"), as applicable, as to
whether an Event of Default has occurred and is continuing from the breach of
the covenants contained in Sections 11.06(3) and 11.06(6) of this Indenture,
unless the Company and the Insurer (as long as no Insurer Default has occurred
and is continuing) or the representative (but only as long as an Insurer Default
has occurred and is continuing) agree that such Event of Default has been cured
within ten days following receipt of written notice of default from the Trustee
or the Insurer, the Company and the Insurer (as long as no Insurer Default has
occurred and is continuing) or the representative (but only as long as an
Insurer Default has occurred and is continuing) shall first meet at a mutually
agreed time (but not later than the 15th day following receipt of such written
notice) and place and attempt to negotiate a resolution of the dispute. In the
event such negotiation fails to resolve any such conflict, the parties hereby
agree to submit the determination of whether an Event of Default has occurred
and is continuing to arbitration administered by the American Arbitration
Association under its then current Commercial Arbitration Rules. Any such
controversy shall be submitted in New York, New York to a panel of three
arbitrators, one chosen by the Company and one by the representative or the
Insurer, as applicable, and the third under the American Arbitration Rules. The
arbitrators shall have no authority to make any other ruling, finding or award
relating to the Notes issued under this Indenture, except for the finding
contemplated by this paragraph (2) of this Section 6.01. The parties shall abide
by the finding rendered by the arbitrators and shall not contest such finding in
any court of law. The Company and the Insurer or the representative, as
applicable, shall use reasonable efforts to conclude such arbitration within 80
days following the end of the cure period of ten days as provided in this
paragraph (2) of this Section 6.01. The foregoing provisions of this Section
6.01(2) shall not apply, and no meeting, negotiation or arbitration shall be
required to be commenced or continued in connection with a dispute as to whether
an Event of Default has occurred and is continuing from the breach of the
covenants contained in either of Sections 11.06(3) or 11.06(6) if (i) the
dispute also involves a purported Event of Default arising from the breach of
any other provision of this Indenture or (ii) a dispute involving a purported
Event of Default arising from the breach of any other provision of this
Indenture shall arise after the commencement of any such meeting, negotiation or
arbitration.
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment; Foreclosure.
(1) If an Event of Default occurs and is continuing, then in every
such case the Holders of not less than 66-2/3% in Remaining Principal Amount of
the Notes Outstanding may direct the Trustee to declare the principal of and
interest on all the Notes to be due and payable immediately (it being understood
that, so long as no Insurer Default has occurred and is continuing, the Insurer
shall have the exclusive right under Section 1.03(4) to exercise the rights of
the Holders in determining whether to give any
58
such direction), and upon any such declaration such principal and interest
shall become immediately due and payable. If an Insurer Default has occurred and
is continuing, then the Holders of not less than 66-2/3% in Remaining Principal
Amount of the Outstanding Notes may direct the Trustee to declare the principal
of and interest on the Notes to be due and payable immediately, and upon any
such declaration such principal and interest shall become immediately due and
payable. Any such declaration of acceleration shall be made by a notice in
writing to the Company, from the Trustee, pursuant to the procedures set forth
in Section 1.04.
(2) At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article Six provided, the Holders of not
less than 66-2/3% in Remaining Principal Amount of the Outstanding Notes may (it
being understood that, so long as no Insurer Default has occurred and is
continuing, the Insurer shall have the exclusive right under Section 1.03(4) to
exercise the rights of the Holders in determining whether to give any such
direction) by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee in the
DSCA-Subaccount CBB a sum sufficient (taking into account all higher
priority payments required to be made prior to such amounts are paid
pursuant to Section 4.05) to allow payment of:
(i) all overdue interest on all Notes and all Liquidated
Damages and interest (if any) owing thereon,
(ii) the principal of and redemption premium, if any, on any
Notes that have become due otherwise than by such declaration of
acceleration and interest thereon at the respective rates prescribed
by the Notes,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the respective rates prescribed by
the Notes,
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and
(v) all amounts due and payable at such time to the Insurer and
the Swap Counterparty; and
(b) all Events of Default, other than the non-payment of the principal
of Notes which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.15.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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(3) If there is an acceleration pursuant to paragraph (1) of this
Section and such acceleration has not been rescinded or annulled pursuant to
paragraph (2) of this Section, and if the principal, interest and other amounts
due and payable due to such acceleration have not been paid by the Company, then
in every such case the Holders of not less than 66-2/3% in Remaining Principal
Amount of the Notes Outstanding may vote to foreclose on the Collateral (it
being understood that, so long as no Insurer Default has occurred and is
continuing, the Insurer shall have the exclusive right under Section 1.03(4) to
exercise the rights of the Holders in determining whether and how to exercise
any such vote), by a notice in writing to the Company, with a copy to the
Trustee, and upon such declaration foreclosure proceedings may commence.
SECTION 6.03. Suits for Enforcement by Trustee.
If an Event of Default occurs and is continuing, the Holders of not
less than 66-2/3% in Remaining Principal Amount of the Notes Outstanding may
direct the Trustee, subject to Section 7.01 (it being understood that, so long
as no Insurer Default has occurred and is continuing, the Insurer shall have the
exclusive right under Section 1.03(4) to exercise the rights of the Holders in
determining whether and how to exercise any such vote) to, proceed to protect
and enforce its rights, the rights of the Holders and the rights of the Insurer
under this Indenture by such appropriate judicial proceedings as the Trustee or
the Insurer, as the case may be, shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other proper remedy, subject to the
limitations set forth in Section 6.04.
SECTION 6.04. Remedies Regarding Collateral; Application of Proceeds.
(1) If the Holders elect to foreclose on the Collateral as provided in
Section 6.02(3), then not later than ten Business Days from the day on which the
Trustee receives written notice of such election, the Trustee shall (or shall,
at the discretion of the Insurer, as long as no Insurer Default has occurred and
is continuing), exercise or take any or all of the following rights, remedies or
actions:
(a) exercise any and all rights and remedies of a secured party with
respect to all or any part of the Collateral under the UCC and other
applicable law; and
(b) sell, assign, transfer, endorse and deliver the whole or, from
time to time, any part of the Collateral at a public or private sale or on
any securities exchange, for cash, upon credit or for other property, for
immediate or future delivery, and for such terms as the Trustee in its
reasonable discretion may deem appropriate; provided, however, that every
aspect of the disposition of the Collateral, including the method, manner,
time, place, and other terms, must be commercially reasonable.
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(2) The parties acknowledge and agree that (x) with respect to the
securities and instruments held in the Debt Service Coverage Account that are of
a type that is customarily sold on a recognized market the notification
requirements of Section 9-611 of the UCC are inapplicable, and (y) any
Collateral that is not of a type that is customarily sold on a recognized market
is subject to the notification requirements prescribed in Section 9-611(b) of
the UCC. To the extent that such notice is required and has not been waived
after default, the Company agrees that if such notice is given to it in the
manner provided in Section 1.04 at least ten Business Days before the time of
sale or disposition, such notice shall be deemed commercially reasonable and
shall fully satisfy any requirement for the giving of such notice to it. The
Insurer agrees that to the extent that such notice is required to be given to it
and has not been waived after default, if such notice is given to it in the
manner provided in Section 1.04 at least 10 Business Days before the time of
sale or disposition, such notice shall be deemed commercially reasonable and
shall fully satisfy any requirement for the giving of such notice to it. At any
sale or other disposition of the Collateral by the Trustee, the Collateral, or
portion thereof to be sold, may be sold as an entirety or in separate parcels,
as the Trustee may in its sole and absolute discretion determine, unless
otherwise instructed by the Insurer; provided that such disposition is
commercially reasonable. Any sale or other disposition of the Collateral by the
Trustee may be made through such brokers as may be selected by the Trustee in
its sole discretion and on such commercially reasonable terms as the Trustee may
determine, unless otherwise instructed by the Insurer, without any obligation to
advertise or give notice of any kind other than that necessary under applicable
law. The Trustee, unless otherwise instructed by the Insurer, may, without
notice or publication, adjourn any public sale or cause the same to be adjourned
from time to time by announcement at the time and place fixed for sale, and, to
the extent permitted by law, such sale may, without further notice, be made at
the time and place to which the same was so adjourned. If the sale of all or any
part of the Collateral is made on credit for future delivery, the Collateral so
sold may be retained by the Trustee until the sale price is paid by the
purchaser or purchasers thereof, but the Trustee shall not incur any liability
if any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. As an alternative to exercising the power of sale in
this Indenture conferred, the Trustee may, unless otherwise instructed by the
Insurer, proceed by suit or suits at law or at equity to foreclose on and sell
the Collateral pursuant to the judgment or decree of a court or courts having
competent jurisdiction.
SECTION 6.05. Application of Moneys Collected.
The Trustee shall notify the Company of its intent to distribute the
moneys collected by the Trustee pursuant to this Article and the Company shall
promptly provide a Notice of Due Payments to the Trustee upon receipt of such
notice. Any money collected by the Trustee pursuant to this Article (after
deducting the costs of liquidation, the Trustee's fees and expenses in
connection therewith, and any governmental fees or taxes required to be paid to
effectuate the liquidation) shall be distributed in accordance with Section
9-615 of the UCC in the following order of priority in accordance with Section
9-615 of the UCC:
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(a) To the payment of any Tax Payments payable by the Company to MONY
Group under the CBB Tax Agreement that are due but unpaid at such time, as
set forth in the applicable Notice of Due Payments;
(b) To the payment of all reasonable fees and expenses of the Trustee
with respect to the Notes, subject to the limitations set forth in Exhibit
G, as set forth in the applicable Notice of Due Payments;
(c) To the payment of any premium due and payable to the Insurer under
the Insurance Agreement, as set forth in the applicable Notice of Due
Payments;
(d) To the payment of net amounts due and payable to the Swap
Counterparty, as set forth in the applicable Notice of Due Payments;
(e) To the payment of the amounts due and payable to the Insurer under
this Indenture and the Insurance Agreement (other than any premium due and
payable to the Insurer) as set forth in the applicable Notice of Due
Payments;
(f) To the payment of the amounts due and payable as interest on the
Notes (including interest on such amounts, to the extent provided under the
terms of the Notes) as determined by the Trustee, pro rata among each of
the series of Notes according to the aggregate relative amounts of interest
(including interest on such amounts) due and payable on each series of
Notes, and then such amount for each series shall be allocated pro rata
among the Notes of such series according to the relative amounts of
interest (including interest on such amounts) due and payable on each Note
of such series, without any preference of one Note or series over the
other;
(g) To the payment of Liquidated Damages due and payable to the
Holders, pro rata to the Holders in accordance with the relative Liquidated
Damages due and payable to each Holder;
(h) To the payment of the amounts due and payable as principal of the
Notes, as determined by the Trustee, pro rata among each series of Notes
according to the relative aggregate amounts of principal due and payable on
the Notes of each such series, and then such amount for each series shall
be allocated pro rata among the Notes of such series according to the
relative amounts of principal due and payable on each Note of such series,
without any preference of one Note or series over the other;
(i) To the payment of any termination payments in respect of the Swaps
to the Swap Counterparty, as set forth in the applicable Notice of Due
Payments; and
(j) After the foregoing priorities are satisfied in full, to the
Company.
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SECTION 6.06. Limited Recourse.
(a) Recourse with respect to the obligations of the Company on the
Notes or under this Indenture or the Insurance Agreement or the
Registration Rights Agreement or any agreement, instrument, certificate or
other document relating hereto or thereto, shall be limited, first, to the
Collateral, and, upon foreclosure on all the Collateral, liquidation of all
the Collateral and application of the moneys so collected pursuant to
Section 6.05 hereof, second, to the Company as senior, unsecured
indebtedness to the extent of the Fair Market Value of the Closed Block
Business as of the date of the commencement of foreclosure on the
Collateral. For this purpose, the "Fair Market Value of the Closed Block
Business" shall mean the value of the Closed Block Business, determined in
accordance with the remaining provisions of this Section 6.06(a), that
would be obtained in an arm's-length transaction for cash between an
informed and willing buyer and an informed and willing seller, neither of
whom is under any compulsion to purchase or sell, respectively, and without
regard to the particular circumstances of the buyer or seller. The Fair
Market Value of the Closed Block Business shall be calculated as the
present value of the Projected Cash Flows of the Closed Block Business
before debt service in respect of the Notes using the Discount Rate.
"Projected Cash Flows" shall mean cash flows projected by the parties and
in the manner specified in this Section 6.06(a) below. "Discount Rate"
shall mean the discount rate, selected by the parties and in the manner
specified in this Section 6.06(a) below, that, in the professional judgment
of such parties, is the most appropriate rate for the purposes of
calculating the present value of the Projected Cash Flows of the Closed
Block Business. The determination of Projected Cash Flows and Discount Rate
(i) shall be jointly made by two nationally recognized investment banks,
respectively selected by MONY Group and by Holders of not less than 50.1%
in Remaining Principal Amount of the Notes (it being understood that, so
long as no Insurer Default has occurred and is continuing, the Insurer
shall have the exclusive right under Section 1.03(4) to exercise the rights
of the Holders in selecting such bank) and (ii) shall take into account the
provisions of Article VIII of the Plan of Reorganization relating to the
declaration and amount of Closed Block policyholder dividends. In their
determination of the Projected Cash Flows, the selected investment banks
shall jointly obtain the services of a nationally recognized actuarial
appraisal firm in order to determine the cash flows necessary for the
payment or discharge of the remaining Closed Block Liabilities. If such
selected investment banks cannot agree on Projected Cash Flows and Discount
Rate within 60 days after they have been selected, they shall designate as
a third appraiser, within 30 days of the determination of such investment
banks that they cannot so agree, a nationally recognized investment bank,
whose appraisal shall be determinative. The costs required for the
determination of the Fair Market Value of the Closed Block Business shall
be borne by MONY Group. The parties shall cooperate and shall provide all
necessary information and assistance to permit any determination hereunder.
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(b) No recourse may be had with respect to the Notes, this Indenture,
the Insurance Policy, the Insurance Agreement, the Registration Rights
Agreement or any agreement, instrument, certificate, or other document
related hereto or thereto against any member of the Company, any Affiliate,
Subsidiary or controlling person of the Company or any of their respective
stockholders, partners or members, or against any officer or director of
any such Person or any of their successors or predecessors, or against any
beneficiary or equity owner of a trust, including MONY Group or MONY Life,
and, except as provided above, no suit, claim or proceeding may be brought
against any such Person for any obligation relating to the Notes, the
Indenture, the Insurance Agreement, the Registration Rights Agreement or
any such agreement, instrument, certificate, or other document.
SECTION 6.07. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, its
property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
necessary or appropriate in order to have claims of the Holders, the Insurer or
the Trustee, as the case may be, allowed in any such proceeding. In particular,
the Trustee shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder and the Insurer to make such payments to the Trustee and if the
Trustee shall consent to the making of such payments directly to the Holders or
the Insurer, as applicable, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder or
the Insurer any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder or the Insurer thereof or to
authorize the Trustee to vote in respect of the claim of any Holder or the
Insurer in any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders (but not on behalf of the Insurer), vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 6.08. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and
64
counsel, be for the ratable benefit of the Holders or the Insurer as applicable,
in respect of which such judgment has been recovered.
SECTION 6.09. Limitation on Suits.
No Holder (or the Insurer, in exercising the rights of the Holders)
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder (or the Insurer, in exercising the rights of the
Holders) has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Notes;
(2) the Holders of not less than 66-2/3% in Remaining Principal Amount
of the Notes Outstanding (it being understood that, so long as no Insurer
Default has occurred and is continuing, the Insurer shall have the exclusive
right under Section 1.03(4) to exercise the rights of the Holders in determining
whether and how to exercise any such vote) shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder (or Holders), or the Insurer, as applicable, have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of reasonable indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
(in accordance with the terms of this Indenture) to the Trustee during such
60-day period by the Holders of a majority in Remaining Principal Amount of the
Notes Outstanding (it being understood that, so long as no Insurer Default has
occurred and is continuing, the Insurer shall have the exclusive right under
Section 1.03(4) to exercise the rights of the Holders in determining whether to
give any such direction);
it being understood and intended that no one or more of such Holders (or the
Insurer, in exercising the rights of the Holders) shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders or the
Insurer, or to obtain or to seek to obtain priority or preference over any other
of such Holders or the Insurer or to enforce any right under this Indenture,
except in the manner in this Indenture provided and for the equal and ratable
benefit of all of such Holders and the Insurer, subject to the provisions of
this Indenture.
SECTION 6.10. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the
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principal of and any premium and interest on such Note on the respective
Scheduled Payment Dates expressed in such Note (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment (subject to Section 6.06), and such rights shall not be impaired without
the consent of such Holder.
SECTION 6.11. Restoration of Rights and Remedies.
If the Trustee, the Insurer or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee, the Insurer or such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee, the Insurer and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee, the Insurer and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 6.12. Remedies Not Exclusive.
(1) Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 3.08, no remedy conferred upon or reserved to the Trustee or the Insurer
or Holders under this Indenture is intended to be exclusive of any other remedy
or remedies, but every such remedy shall be cumulative and in addition to every
other remedy conferred in this Indenture or now or hereafter existing at law or
in equity or by statute, including, without limitation, any rights the Insurer
may have under the equitable doctrine of subrogation.
(2) The Trustee shall have, with respect to the Collateral, in
addition to any other remedies that may be available to it at law or in equity
pursuant to this Indenture, all rights and remedies conferred upon a secured
party under the UCC.
SECTION 6.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder or the Insurer to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default, as
applicable, or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders or the Insurer may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders or the Insurer, as the case may be.
SECTION 6.14. Control of Proceedings.
The Holders of not less than 66-2/3% of the Remaining Principal Amount
of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, with respect to the
Notes (it being understood that, so long as no Insurer Default has occurred and
is continuing, the Insurer shall have the
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exclusive right under Section 1.03(4) to exercise the rights of the Holders to
so direct); provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture and shall not involve the Trustee in personal liability
or expense for which the Trustee has not received a reasonable indemnity,
and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.15. Waiver of Past Defaults.
(1) The Holders of not less than 66-2/3% in Remaining Principal
Amount of the Notes Outstanding may on behalf of the Holders of all the Notes,
waive any past default hereunder and its consequences (it being understood that,
so long as no Insurer Default has occurred and is continuing, the Insurer shall
have the exclusive right under Section 1.03(4) to exercise the rights of the
Holders in determining whether so to waive) except a default:
(a) in the payment of the principal of or interest on any Note or of
Liquidated Damages in respect of any Note except as provided under Section
6.02(2)(b), or
(b) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of each
Note affected.
(2) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.16. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, provided that this Section 6.16
shall not be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Trustee.
SECTION 6.17. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this
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Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power in this Indenture
granted to the Trustee, including the power to liquidate and apply the
Collateral, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 6.18. Trigger Events.
(1) Upon the occurrence of a Trigger Event, and as long as no Insurer
Default has occurred and is continuing, then either or both of the following may
occur, at the option of the Insurer at the date ("Special Payment Date")
notified by the Insurer to the Company and the Trustee on behalf of the Holders
pursuant to Section 1.04:
(a) all future premiums payable pursuant to the Insurance Agreement
shall become immediately due and payable, or
(b) subject to the payment priorities set forth in Section 4.05(1),
assets held in the Debt Service Coverage Account in excess of the amount
equal to the aggregate Estimated Debt Service payable on the immediately
following Scheduled Payment Date may be applied to prepay all or a portion
of the principal of Notes of all series, pro rata among each series of
Notes according to the relative aggregate amounts of Remaining Principal
Amount on the Notes of each such series, and then such amounts for each
series shall be allocated pro rata among the Notes of such series according
to the relative amounts of Remaining Principal Amount on each Note of such
series, without any preference of one Note or series over another; or to
pay all or a portion of interest due and payable on the Notes, pro rata
according to the aggregate relative amounts of interest (including interest
on such amounts) due and payable on each series of Notes on or prior to
such date, and then such amount for each series shall be allocated pro rata
among the Notes of such series according to the relative amounts of
interest (including interest on such amounts) due and payable on each Note
of such series, without any preference of one Note or series over the
other. If all or a portion of the principal of the Notes is prepaid
pursuant to this Section 6.18(1)(b), the Company may refinance such prepaid
portion of principal, if any; provided that the refinanced portion
corresponding to the prepaid portion of principal on the Notes shall be
subordinated in time and in right of payment (on subordination terms,
materially as set forth in Exhibit O), to the remaining Notes Outstanding
and shall have a maturity that is longer than that of the latest maturing
Notes Outstanding; and provided, further, that no such application of
amounts in the Debt Service Coverage Account pursuant to this Section
6.18(1)(b) shall cause the Company to be required to make a Subaccount OB
Deposit pursuant to Section 4.08, even if the conditions for a Subaccount
OB Deposit pursuant to Section 4.08 are triggered by such application.
(2) A "Trigger Event" shall mean:
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(a) a downgrade by Standard & Poor's of MONY Group's senior debt
rating to BB+ or below, or by Moody's to Ba2 or below; or
(b) an Event of Default occurs and is not waived pursuant to Section
6.15.
(3) If a Trigger Event occurs, the Company shall promptly give notice
of such occurrence to the Trustee and the Insurer pursuant to the procedures set
forth in Section 1.04. Upon receipt of such notice, the Insurer, as long as no
Insurer Default has occurred and is continuing, shall notify the Trustee of its
decision to elect one or more of the consequences specified in Section 6.18(1).
SECTION 6.19. Subrogation of Insurer.
(1) Anything herein to the contrary notwithstanding, any payment with
respect to the principal of or interest on the Notes which is made with moneys
received pursuant to the terms of the Insurance Policy shall not be considered
payment by the Company, shall not discharge the Company in respect of its
obligation to make such payment and shall not result in the payment of or the
provision for the payment of the principal of or interest on the Notes within
the meaning of Article Five hereof. The Company and the Trustee acknowledge that
without the need for any further action on the part of the Insurer, the Company,
the Trustee or the Notes Registrar in the event that the Insurer makes payments,
directly or indirectly, on account of principal of or interest on the Notes to
the Holders, the Insurer will be fully subrogated to the rights of such Holders
to receive such principal and interest from the Company.
(2) Any subrogation rights granted pursuant to this Section 6.19
shall be in addition to and not in limitation of rights of subrogation otherwise
available to the Insurer in respect of any payments made by the Insurer and any
other rights granted to the Insurer pursuant to this Indenture, the Insurance
Agreement and the Swap Agreement.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(1) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(2)The Trustee shall use the same degree of care with respect to the
Collateral transferred to or by it or in its control or possession that it uses
for property
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that it holds for itself in its individual capacity. The Trustee shall keep
appropriate records in connection with its obligations and duties arising under
this Indenture in a commercially reasonable form and upon resignation or removal
shall deliver such records or appropriate summaries thereof in the form and
manner then kept to its successor or to the Company. Except as permitted
hereunder, the Trustee shall not sell, pledge, rehypothecate, assign, invest,
use, commingle or otherwise dispose of, or otherwise use in its business any of
the Collateral.
(3) All moneys and other property received by the Trustee under or
pursuant to any provision of this Indenture shall be held in trust for the
purposes of this Indenture and the Trustee (except as otherwise provided in this
Indenture) shall have no right to set off or apply any such monies or other
property against any obligation of the Company or any Secured Party, and hereby
waives any and all security interests or rights of setoff that it may otherwise
have against the Collateral, except as provided in this Indenture.
(4) Subject to contrary instructions from the Insurer (as long as no
Insurer Default has occurred and is continuing), if an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(5) Except during the continuance of an Event of Default:
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee, it being expressly understood that the Trustee has no obligation
to monitor compliance by the Company with any covenant or agreement
contained in this Indenture (including, but not limited to, Article Eleven
hereof) unless the Trustee is expressly stated to be obligated to monitor
such compliance;
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and, if required by the terms of this Indenture, substantially
conforming to the requirements of this Indenture; provided, however, that
the Trustee shall examine the certificates and opinions to determine
whether or not they substantially conform to the requirements of this
Indenture (provided, that the Trustee shall have no obligation to confirm
that any information contained therein has been properly calculated or
prepared); and
(c) the Trustee shall have no obligation to confirm or calculate any
numerical information provided to it in this Indenture except for the
confirmations or calculations specifically set forth herein.
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(6) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (1) of this
Section 7.01;
(b) the Trustee shall not be liable for any error of judgment made in
good faith unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.14.
(7) The Company hereby directs the Trustee to enter into the
Insurance Agreement as of the Closing Date.
SECTION 7.02. Notice of Defaults.
If an Event of Default occurs hereunder with respect to the Notes,
and an Authorized Officer of the Trustee in the Corporate Trust Office has
actual knowledge of its occurrence and continuance, the Trustee shall give all
Holders entitled to receive reports pursuant to Section 3.13(c) of the TIA, with
a copy to the Company and the Insurer, notice of such default; provided,
however, that in the case of any default of the character specified in Section
6.01(1)(f) with respect to the Notes, no such notice shall be given to the
Holders until at least 30 days after the occurrence thereof.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned in this
Indenture shall be sufficiently evidenced by a Company Request or Company Order;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be in this Indenture specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer's Certificate;
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(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders or the Insurer pursuant to this Indenture, unless such
Holders or the Insurer shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction, and the Insurer hereby agrees
to indemnify the Trustee against the costs, expenses and liabilities which might
be incurred by the Trustee in compliance with the requests or directions of the
Insurer pursuant to this Indenture, to exercise any of the rights or powers
vested in the Trustee by this Indenture and the Trustee hereby acknowledges that
such indemnity from the Insurer pursuant to this Section 7.03(5) is sufficient
for purposes of the indemnification requirements of the Trustee under this
Indenture;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained in this Indenture and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Notes or the proceeds thereof.
SECTION 7.05. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Notes
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Section 7.14,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Notes Registrar or such
other agent.
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SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law or pursuant to the terms
of this Indenture. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 7.07. Compensation and Reimbursement.
Subject to Articles Four and Six, the Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall agree from time to time for all services rendered
by it hereunder as specified in and subject to the limitations set forth in
Exhibit G (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), or as otherwise
consented to by the Insurer (as long as no Insurer Default has occurred and is
continuing) which consent shall not be unreasonably withheld;
(2) except as otherwise expressly provided in this Indenture, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
SECTION 7.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the TIA, it shall, within 90 days after ascertaining that it has
such conflicting interest, either eliminate such conflicting interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the TIA and this Indenture.
SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder,
which shall be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and qualified and eligible under this
Article and otherwise permitted by the TIA to act as
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Trustee under an Indenture qualified under the TIA, and having its Corporate
Trust Office in The City of New York, the State of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 7.09, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Seven.
SECTION 7.10. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Seven shall become effective until
the acceptance of appointment by the successor Trustee under Section 7.11.
(2) The Trustee may resign at any time by giving written notice
thereof to the Company, with a copy to the Insurer. If an instrument of
acceptance by a successor Trustee required by Section 7.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(3) The Trustee may be removed at any time by Act of the Holders of
66-2/3% in Remaining Principal Amount of the Notes Outstanding(it being
understood that, so long as no Insurer Default has occurred and is continuing,
the Insurer shall have the exclusive right under Section 1.03(4) to exercise the
rights of the Holders), delivered to the Trustee and to the Company.
(4) If at any time:
(a) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company, by the
Insurer (so long as no Insurer Default has occurred and is continuing) or
by any Holder who has been a bona fide Holder of a Note for at least six
months, or
(b) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Company Order may remove the
Trustee, or (ii) subject to Section 6.16, any Holder who has been a bona fide
Holder of a Note for at least six months, or the Insurer (so long as no Insurer
Default has occurred and is continuing), may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
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(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Company Order, shall, with the consent of the Insurer, such
consent not to be unreasonably withheld, promptly appoint a successor Trustee
and shall comply with the applicable requirements of Section 7.11, it being
agreed that the Insurer shall consent to the appointment of any successor
Trustee that (i) is a Federal or U.S. state-chartered depository institution or
trust company, (ii) has a combined capital and surplus of at least $50,000,000
and has its corporate trust office in The City of New York, the State of New
York, and (iii) the short-term and long-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term and long-term
unsecured debt obligations of which) are rated P-1 and Aaa by Moody's, or A-1+
and AAA by Standard & Poor's at the time any amounts are held on deposit
therein. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of 66-2/3% in Remaining Principal Amount of the Notes Outstanding
(it being understood that, so long as no Insurer Default has occurred and is
continuing, the Insurer shall have the exclusive right under Section 1.03(4) to
exercise the rights of the Holders) delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee and supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 7.11, any Holder who has been a bona fide Holder of a Note for at least
six months, or the Insurer, as long as no Insurer Default has occurred and is
continuing, may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(6) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders and
the Insurer in the manner provided in Section 1.04. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company, the Insurer and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
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No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. If any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes.
SECTION 7.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company (or
any such other obligor). For purposes of Section 311(b)(4) and (6) of the TIA:
(1) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(2) "self-liquidating paper" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company (or any such obligor) for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company
(or any such obligor) arising from the making, drawing, negotiating or incurring
of the draft, xxxx of exchange, acceptance or obligation.
SECTION 7.14. Appointment of Authenticating Agent.
The Trustee may appoint an "Authenticating Agent" or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Notes issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 3.08, and Notes so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and
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delivery of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section 7.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section 7.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or if at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 7.14, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall give notice of such appointment in
the manner provided in Section 1.05 to all Holders and in the manner provided in
Section 1.04 to the Insurer. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 7.14.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section 7.14, the Notes may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
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"This is one of the Notes of the series designated therein referred to
in the within mentioned Indenture.
[_____________________________________],
As Trustee
By:____________________________________,
As Authenticating Agent
By:_____________________________________
Authorized Officer"
ARTICLE EIGHT
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee to
the extent such information is in the possession of the Company:
(1) quarterly, not later than ten days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of each series as of the fifteenth day (whether or not
a Business Day) prior to such date, and
(2) at such other times as the Trustee may reasonably request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
which list may exclude, in either case, any names and addresses received by the
Trustee in its capacity as Notes Registrar.
SECTION 8.02. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed on it pursuant
to Section 312 of the TIA.
Every Holder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders in accordance with Section
312(b) of the TIA, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the TIA.
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SECTION 8.03. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Notes pursuant to this Indenture, if required
by Section 313(a) of the TIA, the Trustee shall transmit a brief report dated as
of such May 15 with respect to any of the events specified in such Section
313(a) that may have occurred since the later of the immediately preceding May
15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(b)
of the TIA at the times specified therein.
(3) Reports pursuant to this Section 8.03 shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the TIA.
SECTION 8.04. Reports by Company.
(1) The Company, pursuant to Section 314(a) of the TIA, shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
SEC, in accordance with rules and regulations prescribed from time to time
by the SEC, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Notes, in the manner and to the extent provided
in Section 313(c) of the TIA, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section 8.04 as may be required by rules and regulations
prescribed from time to time by the SEC; and
(d) notify the Trustee when and as the Notes of any series become
admitted to trading on any national securities exchange.
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(2) In addition to the obligations set forth in paragraph (1), the
Company
(a) shall make available to the Trustee for the Trustee to make
available to the Holders and the Insurer, (i) promptly when available, the
Company's Annual Report on Form 10-K wherein there will be footnote
disclosure of the Company's financial statements on a stand-alone basis or,
in the event that the Company is not obligated to file an Annual Report on
Form 10-K, audited financial statements for the Company and its
consolidated Subsidiaries within 160 days following the end of the
Company's fiscal year which statements shall include such footnote
disclosure; (ii) promptly when available, MONY Group's Annual Report on
Form 10-K or, in the event that MONY Group is no longer obligated to file
an Annual Report on Form 10-K, audited financial statements for MONY Group
within 160 days following the end of MONY Group's fiscal year; and (iii)
audited annual statutory financial statements of MONY Life, not later than
160 days after the end of each calendar year; and
(b) shall make available to the Trustee for the Trustee to make
available to the Holders and the Insurer: (i) the annual supplemental
statutory based financial information maintained by MONY Life on the Closed
Block Business within MONY Life, within 160 days of the end of the
Company's fiscal year, such information to be substantially in the form as
set forth in the section of the Company's Offering Circular for the Series
A Notes entitled "Unaudited Pro Forma Condensed Statutory Financial
Information of MONY Life"; (ii) quarterly statutory based financial
information on the Closed Block Business within MONY Life for each fiscal
quarter, within 45 days of the end of each such quarter, containing the
equivalent level of information provided in the financial information
referred to in (i) above; (iii) annual statutory based financial
information, containing the equivalent level of information provided in the
financial information referred to in (i) above, on the Ongoing Businesses
within MONY Life within 160 days of the end of the Company's fiscal year;
(iv) quarterly statutory based financial information on the Ongoing
Businesses within MONY Life for each fiscal quarter, within 45 days of the
end of each such quarter, containing the equivalent level of information
provided in the financial information referred to in (i) above; (v) annual
supplemental investment reports, including investment reports on the Debt
Service Coverage Account and Surplus and Related Assets (each showing, for
the relevant period, the account balance; the portions of the account
balance consisting of cash and assets other than cash, respectively;
withdrawals and payments for the relevant period, specifying the nature of
each such withdrawal and payment; and deposits into and earnings on the
amounts in the Debt Service Coverage Account and the Surplus and Related
Assets, respectively), certification of conformity of the Surplus and
Related Assets and Debt Service Coverage Account to the Investment Policy
Statement for Surplus and Related Assets attached as Exhibit D and
Investment Policy Statement for the Debt Service Coverage Account attached
as Exhibit E, respectively, a listing of the portfolio of Surplus and
Related Assets, an update of the description of the asset portfolio
supporting the Closed Block, including
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realized and unrealized losses for the prior year of such asset
portfolio, and a listing of the portfolio and balance of each of the
DSCA-Subaccount CBB, DSCA-Subaccount OB and DCSA-Subaccount OB
(Deposit), all within 160 days of the end of the Company's fiscal year;
(vi) within 160 days of the end of the Company's fiscal year,
statements of the annual cumulative deviation of the ratios relating to
the Closed Block from the projections as specified in Exhibit H and
(vii) such other reports, statements and certifications relating to the
Company, the Notes or MONY Life as the Trustee or the Insurer may
reasonably request at any time. For the calendar fiscal year 2002, all
"annual" information for items (i), (iii) and (v) above shall be for
the period from and after the first quarter-end after the Closing Date
and ending on December 31, 2002.
(3) So long as any of the Original Notes are Outstanding, and the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon request
the Company shall provide to Holders of Original Notes or prospective purchasers
designated by such Holders Rule 144A Information in order to permit compliance
with Rule 144A under the Securities Act in connection with the resale of such
Note by such Holders.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE; CLOSED
BLOCK REINSURANCE
SECTION 9.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing;
(2) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company other than
the Collateral would become subject to a mortgage, pledge, lien, security
interest or other encumbrance that would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such steps as
shall be necessary effectively to secure the Notes equally and ratably with (or
prior to) all indebtedness secured thereby;
(3) the Company has delivered to the Trustee, with a copy to the
Insurer, an Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is
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required in connection with such transaction, such supplemental indenture
comply with this Article Nine and that all conditions precedent in this
Indenture provided for relating to such transaction have been complied with; and
(4) the Insurer has delivered to the Company, with a copy to the
Trustee, a written consent of the Insurer consenting to such transaction prior
to the consummation thereof.
SECTION 9.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 9.01, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company in this Indenture, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Notes.
SECTION 9.03. Closed Block Reinsurance.
(1) The Trustee and the Insurer each hereby acknowledge and each
Holder or beneficial owner of any Note, by accepting such Note or any interest
therein, shall be deemed to acknowledge that MONY Life may enter into one or
more reinsurance transactions (the "Closed Block Reinsurance Treaty") reinsuring
all or a portion of the Closed Block Business (the "Closed Block Reinsurance")
with one or more reinsurance counterparties (collectively, the "Closed Block
Reinsurers") prior to the termination of this Indenture subject to the terms set
forth in this Section 9.03.
(2) Any Closed Block Reinsurance undertaken by MONY Life upon terms
and conditions that are consistent with paragraphs (a) through (i), inclusive,
of Section 9.03(3) may be undertaken without the need to obtain the prior
consent or waiver of the Trustee, the Insurer or any Holder, notwithstanding any
of the terms, conditions or covenants contained in this Indenture, the Notes, or
any other agreements executed in connection with the issuance of the Notes.
(3) Closed Block Reinsurance as to which no prior written consents or
waivers is required under this Indenture or the agreements entered into in
connection with the issuance of the Notes must be upon terms and conditions
consistent with the following:
(a) Except as set forth below, the reinsurance must be undertaken
entirely on a modified coinsurance ("modco") basis. For the purposes of the
foregoing, reinsurance shall be deemed to be on a modco basis if MONY Life
retains for its own account the statutory reserves associated with the
liabilities reinsured and the corresponding assets. Yearly renewal term
("YRT") reinsurance
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and the reinsurance of term and disability coverages will be permitted on
other than a modco basis.
(b) The Closed Block Reinsurance Treaty may provide that the Ongoing
Businesses of MONY Life shall advance all or any portion of any Treaty Gain
Amount for a particular Accounting Period to a trust or other segregated
account or to the Closed Block Reinsurers. However, the Ongoing Businesses
of MONY Life shall not advance any such amount to the Closed Block
Reinsurers if immediately after making such advance the Net Treaty Gain
Balance would exceed an amount equal to one percent (1%) of the aggregate
liabilities reinsured under the Closed Block Reinsurance Treaty as of the
end of such Accounting Period. As used herein, with respect to any
particular accounting period not to exceed one year (the "Accounting
Period"), the "Treaty Gain Amount" or "Treaty Loss Amount" shall mean an
amount equal to the pre-tax gain from operations of the reinsured business
or pre-tax loss from operations of the reinsured business, respectively,
for such Accounting Period, computed in accordance with the terms of the
Closed Block Reinsurance Treaty. "Net Treaty Gain Balance" shall mean, at
any point in time, the amount, if any, by which: (i) the cumulative sum of
all Treaty Gain Amounts paid into the trust or other segregated account or
paid to the Closed Block Reinsurers and investment income credited thereon;
exceeds (ii) the cumulative sum of all Treaty Loss Amounts paid to the
Ongoing Businesses of MONY Life, all investment income credited thereon,
all Closed Block Reinsurance Treaty risk charges credited or paid to the
Closed Block Reinsurers, and all other repayments from the trust or other
segregated account or by the Closed Block Reinsurers to the Ongoing
Businesses of MONY Life of amounts previously advanced, including the
investment income credited thereon.
(c) All payments from MONY Life under the Closed Block Reinsurance
Treaty will be made by the Ongoing Businesses within MONY Life; no cash or
assets within the Closed Block Business will be used to make such payments.
In particular, any reinsurance risk charges will be paid entirely by the
Ongoing Businesses within MONY Life and no portion of the assets held
within the Closed Block Business will be used to make any payments to the
trust or other segregated account or to the Closed Block Reinsurers
pursuant to paragraph (b) above or at any time to reimburse the Ongoing
Businesses for any such payments to such trust or other segregated account
or to the Closed Block Reinsurers. All payments received by MONY Life under
the Closed Block Reinsurance Treaty will inure to the benefit of, and be
paid to, the Ongoing Businesses within MONY Life; none of the payments made
by the Closed Block Reinsurers or from the trust or other segregated
account under the Closed Block Reinsurance Treaty shall inure to the
benefit of, or be made to, the Closed Block Business.
(d) The Closed Block Reinsurance may involve risk transfer with
respect to up to 100% of the total liabilities within the Closed Block
Business of MONY Life, including policyholder reserves, dividend liability,
dividend accumulations, the interest maintenance reserve ("IMR"), and other
miscellaneous liabilities.
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(e) The risks transferred to the Closed Block Reinsurers may include
the investment risk with respect to up to 100% of the total assets held
within the Closed Block Business of MONY Life, including the invested
assets, policy loans, accrued investment income, premiums due and accrued,
the Surplus and Related Assets, and other miscellaneous assets; provided,
however, that the total amount of assets as to which investment risk is
transferred will not exceed the total amount of liabilities within the
Closed Block Business of MONY Life as of the effective date of the Closed
Block Reinsurance Treaty.
(f) Net cash flows under the Closed Block Reinsurance Treaty may
reflect up to 100% of the revenues associated with the Closed Block
Business of MONY Life and expense items that may include up to 100% of the
expenses associated with the Closed Block Business of MONY Life.
(g) Any reduction in the risk-based capital ("RBC") held within MONY
Life, as a result of the Closed Block Reinsurance shall be for the benefit
of the Ongoing Businesses of MONY Life; no assets held within the Closed
Block Business may be adjusted or withdrawn as a result of any Closed Block
Reinsurance transaction.
(h) Neither the Closed Block Reinsurance Treaty nor the cash flow
payments resulting therefrom shall adversely affect the cash flows of the
Closed Block Business or the CB Debt Cash Flow, including any payments that
may be required in connection with the CBB Tax Agreement.
(i) The provisions of the Closed Block Reinsurance Treaty shall be
the result of good-faith, arm's-length negotiation with one or more Closed
Block Reinsurers, each of which must not then be affiliated with MONY Life.
(j) In connection with any Closed Block Reinsurance, each Closed
Block Reinsurer must have financial strength ratings from Standard and
Poor's and Xxxxx'x no lower than those of MONY Life.
(k) The assets of the Closed Block must continue to be invested and
reinvested in a manner consistent with the Plan of Reorganization.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Without Consent of Holders.
Without the consent of Holders, but, so long as no Insurer Default
has occurred and is continuing, with the consent of the Insurer, such consent
(other than with respect to clause (7) below) not to be unreasonably withheld,
and with the consent of the Swap Counterparty if the rights and interests of the
Swap Counterparty are adversely affected thereby, the Company and the Trustee,
at any time and from time to time, may
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enter into one or more Supplemental Indentures, in a form satisfactory to the
Trustee, for any of the following purposes:
(1) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Notes (and if such covenants are to be for the
benefit of less than all series of Notes, stating that such covenants are
expressly being included solely for the benefit of such series; provided, that
such covenants shall not materially adversely affect the interests of the
Holders of any other series of Notes) or to surrender any right or power in this
Indenture conferred upon the Company; or
(2) to add any additional Events of Default for the benefit of the
Holders (it being understood that all such additional Events of Default shall be
for the benefit of all series of Notes); or
(3) to provide additional collateral for the Notes; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(5) to facilitate an Exchange Offer and to comply with the
requirements of the SEC in order to effect or maintain the qualification of this
Indenture under the TIA; or
(6) to cure any ambiguity, to correct or supplement any provision in
this Indenture which may be defective or inconsistent with any other provision
in this Indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture, which shall not be inconsistent with any
of the provisions of this Indenture; provided that such action pursuant to this
paragraph (6) shall not materially adversely affect the interests of the Holders
of any series of Notes or the Insurer; or
(7) to establish the terms of any series of Additional Notes to be
issued under this Indenture; or
(8) to modify, eliminate or add to the provisions of this Indenture to such
extent as shall be necessary to effect the qualification of this Indenture under
the TIA or under any similar federal statue hereafter enacted, and to add to
this indenture such other provisions as may be expressly required by the TIA.
SECTION 10.02. Supplemental Indentures With Consent of Holders.
(1) The Company and the Trustee may, with (so long as no Insurer
Default has occurred and is continuing) the consent of the Insurer, and with the
consent of the Swap Counterparty if the rights and interests of the Swap
Counterparty are adversely affected thereby, enter into a Supplemental Indenture
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of such series under this Indenture, subject to
paragraph (2) below.
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(2) No such Supplemental Indenture entered into pursuant to this
Section 10.02 shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change any Scheduled Payment with respect to such Note,
(b) change any Scheduled Payment Date with respect to such Note,
(c) change the Stated Maturity of such Note,
(d) reduce the Remaining Principal Amount or Redemption Price of such
Note,
(e) reduce the rate of interest on such Note or reduce the amount of
Liquidated Damages which would be payable with respect to such Note.
(f) change the place of payment where, or the coin or currency in
which, the principal of, Redemption Price, if any, or interest of such Note
is payable,
(g) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date),
(h) reduce the percentage in Remaining Principal Amount of the Notes
Outstanding, the consent of whose Holders is required for any such
Supplemental Indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
and
(i) modify any of the provisions of this Section or Section 6.15,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Note affected thereby; provided, however,
that this paragraph shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 7.11 and 10.01(5).
It shall not be necessary for any Act of Holders under this Section
10.02 to approve the particular form of any proposed Supplemental Indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
Supplemental Indenture permitted by this Article Ten or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to
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Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such Supplemental Indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such Supplemental Indenture that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any Supplemental Indenture under this Article
Ten, this Indenture shall be modified in accordance therewith, and such
Supplemental Indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 10.05. Conformity with TIA.
Every Supplemental Indenture executed pursuant to this Article shall
conform to the requirements of the TIA.
SECTION 10.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
Supplemental Indenture pursuant to this Article Ten may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such Supplemental Indenture. If the Company shall so determine,
new Notes of any series so modified as to conform, in the opinion of the Trustee
and the Company, to any such Supplemental Indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Notes.
The Company covenants and agrees for the benefit of each series of
Notes, that it will duly and punctually pay the principal, Redemption Price, if
any, and interest then due and owing on the Notes of that series in accordance
with the terms of the Notes of that series and this Indenture, and any
Liquidated Damages payable in respect of the Notes of that series, subject to
the provisions of Section 6.06. Without limiting the foregoing, the Company
acknowledges that it has assigned to the Trustee all of the Company's right,
title and interest in, to and under the Debt Service Coverage Account pursuant
to Section 15.02. Withdrawals from the Debt Service Coverage Account and
payments to the Holders shall be made by the Trustee in accordance with Article
Four. Amounts of principal, Redemption Price, if any, interest or Liquidated
Damages, if any, paid by the Trustee to any Holder pursuant to Sections 4.05 and
4.10 shall be considered as having been paid by the Company to such Holder for
all purposes of this Indenture.
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SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in The City of New York, New York, an
office or agency where Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. Unless and until the Trustee shall have received from
the Company notice to the contrary, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company will give prompt
written notice to the Trustee, with a copy to the Insurer of any change in the
location of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee, with a copy to the Insurer, with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside The City of New York, New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York, New York for
such purposes. The Company shall give prompt written notice to the Trustee, with
a copy to the Insurer, of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 11.03. Money for Note Payments to Be Held in Trust.
(1) All payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Debt Service Coverage
Account in accordance with Section 4.05 shall be made on behalf of the Company
by the Paying Agent on the Notes, and the Trustee shall pay over any such
amounts to the Paying Agent (if not the Trustee) for such purpose and no amounts
so withdrawn from the Debt Service Coverage Account by the Trustee for payments
on the Notes shall be paid over to the Company except as provided in Article
Four or Article Six or subsection (2) of this Section 11.03.
The Company hereby appoints the Trustee as the initial Paying Agent
for amounts due on the Notes. The Company may appoint any other Person to act as
Paying Agent to perform all functions of Paying Agent under this Indenture, as
fully to all intents and purposes as though the Paying Agent has been expressly
authorized to perform such functions.
Whenever the Company shall have one or more Paying Agents, the
Trustee shall, prior to each due date of the principal of or any premium or
interest on any Notes or Liquidated Damages in respect of any Note, deposit with
such Paying Agent a
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sum sufficient to pay such amount, such sum to be held on trust pursuant to this
Indenture.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it shall, on or before each due date of the principal of
or any premium or interest on any of the Notes or Liquidated Damages in respect
of any Note, segregate and hold in trust for the benefit of the Persons entitled
thereto the proceeds deposited with it pursuant to the preceding paragraph until
such sums shall be paid to such Persons or otherwise disposed of as in this
Indenture provided and will promptly notify the Trustee and the Insurer of its
action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 11.03,
that such Paying Agent will (i) comply with the provisions of this Indenture
applicable to it as a Paying Agent; (ii) hold all sums held by it for the
payment of amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as in this Indenture provided and pay such sums to such
Persons as in this Indenture provided; (iii) give the Trustee, with a copy to
the Insurer, notice of any default by the Company of which it has actual
knowledge in the making of any payment required to be made with respect to the
Notes; and (iv) during the continuance of any default by the Company (or any
other obligor upon the Notes) in the making of any payment in respect of the
Notes, upon the written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
(2) Any money deposited by the Company with the Trustee in the Debt
Service Coverage Account or otherwise, or deposited with any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
Redemption Price or interest on any Note or Liquidated Damages in respect of any
Note and remaining unclaimed until the later of (i) two years after such
principal, Redemption Price, interest or Liquidated Damages has become due and
payable and (ii) the termination of the Insurance Policy, whether on its terms
or otherwise, shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided however, that the Trustee or such Paying Agent before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language,
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customarily published on each Business Day and of general circulation in The
City of New York, New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
(3) Any money deposited in the Escrow Account in trust for the
payment of the principal of or interest on any Note shall be held in such Escrow
Account until disbursement in accordance with Section 4.10(b) hereof, provided
that, if on the later of (i) two years after such principal or interest has
become due and payable and (ii) the termination of the Insurance Policy, whether
on its terms or otherwise, any funds so held shall not have been validly claimed
by a Holder and remain on deposit in the Escrow Account, then such funds shall
be paid upon request to the Insurer; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Insurer for
payment thereof to the extent of such funds and all liability of the Trustee
with respect to such money in the Escrow Account shall thereupon cease;
provided, however, that the Trustee or such Paying Agent before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Insurer.
SECTION 11.04. Statement by Officers as to Default.
The Company will deliver to the Trustee and the Insurer, within 120
days after the end of each fiscal year of the Company ending after the date
hereof, an Officer's Certificate, stating, to the best knowledge of the signers
thereof, whether or not the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company is in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
SECTION 11.05. Existence.
Subject to Article Nine, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its separate
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders or the
Insurer. MONY Group shall not transfer, convey, sell, lease or otherwise dispose
of its equity interest in the Company, in whole or in part, or any interest
therein, or securities convertible into, exercisable or exchangeable for any or
all of its equity interest in the Company, to any Person other than a Person
that is a wholly-owned Subsidiary of MONY Group, or enter into any contract,
option or arrangement or understanding to that effect with any Person other than
a Person that is a wholly-owned
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Subsidiary of MONY Group. MONY Group shall not pledge, encumber or otherwise
authorize the encumbrance of any or all of its equity interest in the Company.
MONY Group shall not and shall not cause or permit the Company to issue any
equity interest of the Company to any Person other than to MONY Group or to a
Person that is a wholly-owned Subsidiary of MONY Group. Notwithstanding any
transfer, conveyance, sale, lease or other disposition of MONY Group's equity
interest in the Company, in whole or in part, or any interest therein, or
securities convertible into, exercisable or exchangeable for any or all of its
equity interest in the Company, or any contract, option or arrangement or
understanding to that effect, or any issuance of any equity interest of the
Company, MONY Group shall continue to be bound by Sections 6.06, 11.05, 11.10(1)
and 11.13(22) of this Indenture.
SECTION 11.06. Business of the Company, MONY Life and its Subsidiaries.
(1) The Company shall not engage in any business other than
maintaining the ownership of all of the equity interest in its direct subsidiary
MONY Life, any business related to the issuance of the Notes under this
Indenture, or any business reasonably related, ancillary or complementary
thereto.
(2) The Company shall not transfer, convey, sell, lease or otherwise
dispose of its equity interest in MONY Life, in whole or in part, or any
interest therein, or securities convertible into, exercisable or exchangeable
for any or all of its equity interest in MONY Life, or enter into any contract,
option or arrangement or understanding to that effect with any Person. The
Company shall not pledge, encumber or otherwise authorize the encumbrance of any
or all of its equity interest in MONY Life. The Company shall not and shall not
cause or permit MONY Life to issue any equity interest of MONY Life to any
Person other than the Company.
(3) The Company shall cause MONY Life to engage only in the
businesses of issuing, marketing and selling products which are similar to those
life insurance products which are being issued, marketed and sold by MONY Life
as of the date of this Indenture, including life insurance, annuity and
disability riders or CPI increments on existing disability income policies and
pension policies, or any activities reasonably related or ancillary thereto.
(4) As long as no Insurer Default has occurred and is continuing, the
Company shall obtain the written consent of the Insurer (but no consent of any
Holder shall be required), prior to permitting MONY Life to make further
investments in Subsidiaries of MONY Life, other than investments in Persons that
are Subsidiaries of MONY Life as of the date hereof, if MONY Life's Total
Adjusted Capital falls below 200% of MONY Life's Company Action Level RBC until
such time as MONY Life's Total Adjusted Capital is restored to a level at or
above 200% of MONY Life's Company Action Level RBC. For these purposes, MONY
Life's Total Adjusted Capital will be calculated annually as of year-end, such
calculation to be completed no later than the 60th day following the end of the
relevant year; provided, however, that if MONY Life's Total Adjusted Capital as
of any year-end falls below 225% of MONY Life's Company Action Level RBC then
the calculation will thereafter be done quarterly as of each
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quarter-end, such calculation to be completed no later than the 45th day
following the end of the relevant quarter, until such time as MONY Life's Total
Adjusted Capital is restored to a level at or above 225% of MONY Life's Company
Action Level RBC.
(5) As long as no Insurer Default has occurred or is continuing, the
Company shall obtain the written consent of the Insurer (but no consent of any
Holder shall be required), prior to permitting the aggregate amount of first
year and single premiums, deposits, purchase contract considerations and other
similar amounts collected by MONY Life in respect of Ongoing Business in any
calendar year to exceed 150% of calendar year 2001 levels if MONY Life's Total
Adjusted Capital falls below 200% of MONY Life's Company Action Level RBC until
such time as MONY Life's Total Adjusted Capital is restored to a level at or
above 200% of MONY Life's Company Action Level RBC. For these purposes, MONY
Life's Total Adjusted Capital will be calculated annually as of year-end, such
calculation to be completed no later than the 60th day following the end of the
relevant year; provided, however, that if the Total Adjusted Capital as of any
year-end falls below 225% of MONY Life's Company Action Level RBC then the
calculation will thereafter be done quarterly as of each quarter-end, such
calculation to be completed no later than the 45th day following the end of the
relevant quarter, until such time as MONY Life's Total Adjusted Capital is
restored to a level at or above 225% of MONY Life's Company Action Level RBC.
(6) Other than as provided in the second sentence of paragraph (7)
below, the Company will cause the Subsidiaries (including any Person that
becomes such a Subsidiary in the future) of MONY Life to remain primarily
engaged in (i) the insurance business (including without limitation, asset
management and group pension business), (ii) businesses of a type conducted by
the Subsidiaries of MONY Life as of the date of this Indenture or (iii)
businesses reasonably related or ancillary thereto.
(7) As long as no Insurer Default has occurred and is continuing, the
Company will cause MONY Life not to enter into any merger agreement that would
result in the legal merger or consolidation of MONY Life with any other entity
until it has first obtained for the benefit of the Insurer advice from Standard
& Poor's and Xxxxx'x that such merger will not result in the merged MONY Life's
financial strength ratings being below "A-" and "A3", respectively (it being
understood that, subject to the limitations of paragraph (4) above, this
paragraph (7) shall not preclude mergers of an acquisition Subsidiary of MONY
Life into any other entity or mergers of any other entity into an acquisition
Subsidiary of MONY Life.) Any merger or consolidation of MONY Life or any
Subsidiary of MONY Life, including an acquisition subsidiary, which is not in
breach of this paragraph (7) but which causes the Company to fail to comply with
paragraph (6) above will be deemed not to constitute a breach of paragraph (6)
unless the Company remains in non-compliance with paragraph (6) on the one
hundred and eightieth day after the closing of such merger or consolidation.
(8) The Company will not cause or permit MONY Life to create, incur,
assume, guarantee, acquire or, contingently or otherwise, become responsible for
payment of any indebtedness for borrowed money; provided, however, that for
purposes of this covenant indebtedness for borrowed money shall not include (i)
surplus notes
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contemplated by Section 1307 of the New York Insurance Law so long as at the
time of issuance of any such notes the aggregate principal amount of all such
notes of MONY Life that would be outstanding immediately after such issuance
would not exceed 25 percent of the surplus to policyholders (as defined in
Section 107 of the New York Insurance Law) of MONY Life calculated immediately
prior to any such issuance; (ii) funding agreements (including, but not limited
to, guaranteed investment contracts) issued pursuant to Section 3222 of the New
York Insurance Law that are permitted under SAP to be accounted for as
policyholder or similar liabilities of MONY Life; or (iii) any other
indebtedness for borrowed money having a maturity of one year or less not in
excess of $100 million in the aggregate at any time.
(9) The Company will not, without the Insurer's consent which will not
be unreasonably withheld, cause or permit MONY Life to enter into any
reinsurance agreement, treaty, contract or arrangement (an "arrangement") which
(a) has the effect of significantly increasing MONY Life's ratio of Total
Adjusted Capital to Company Action Level RBC above what such ratio would be in
the absence of such arrangement and (b) can reasonably be expected to cause MONY
Life's Total Adjusted Capital to avoid falling below 250% of MONY Life's Company
Action Level RBC.
SECTION 11.07. Maintenance of Properties.
The Company shall cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders or the Insurer.
SECTION 11.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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SECTION 11.09. Limitation on Indebtedness.
The Company shall not create, incur, assume, guarantee, acquire, or,
contingently or otherwise, become responsible for payment of any indebtedness
other than Permitted Indebtedness.
SECTION 11.10. Limitations Relating to the Closed Block Business.
(1) The Company shall not lend funds from its Ongoing Business to its
Closed Block Business other than Inter-Business Loans. The Company shall cause
its Subsidiaries (other than MONY Life) not to, and MONY Group shall not, lend
funds to the Closed Block Business within the Company except loans made on
market terms and on a basis subordinated to the Notes (which loans shall
incorporate a form of subordination provisions substantially in the Form of
Subordination Provisions attached as Exhibit O). The Company shall not permit
the Ongoing Business of MONY Life to lend funds to the Closed Block Business
within the Company. MONY Group and the Company shall at all times comply with
the provisions of the CBB Tax Agreement and the OB Tax Agreement.
(2) The Company shall not transfer any funds or assets held in any of
the subaccounts of the Debt Service Coverage Account to any portion of the
Ongoing Businesses in the Company or any Affiliate or Subsidiary of the Company,
other than transfers between subaccounts pursuant to Section 4.07.
(3) The Company shall cause MONY Life (i) not to make any loans from
the Surplus and Related Assets to the Ongoing Businesses outside of MONY Life;
(ii) not to make any investments (including loans to any Affiliate) from amounts
on deposit in the Additional Reserve Account other than investments pursuant to
the Investment Policy Statement for Surplus and Related Assets attached as
Exhibit D and (iii) not to make loans from the Surplus and Related Assets to the
Ongoing Businesses in MONY Life other than for cash management purposes of MONY
Life.
(4) The Company shall cause MONY Life (i) to not create or permit to
exist any Liens on assets of the Closed Block or Surplus and Related Assets
other than Permitted Liens and (ii) to not otherwise utilize (by transfer or
otherwise) such assets or cash flows from such assets to repay indebtedness for
money borrowed or liabilities of MONY Life, (x) attributable to or for the
express benefit of the Ongoing Businesses of MONY Life except for the payment of
Administrative Payments and investment management fees relating to the
management of assets in the Closed Block and the Surplus and Related Assets or
(y) unless inconsistent with applicable law and regulation, arising from conduct
or events occurring prior to the Closing Date.
(5) If all or substantially all of the assets of the Closed Block
Business are sold to a third party, the Company shall redeem the Notes in
accordance with Section 12.03 and shall pay all amounts owing to the Insurer
pursuant to the Insurance Agreement. As long as no Insurer Default has occurred
and is continuing, the Company shall obtain the written consent of the Insurer,
such consent not to be unreasonably
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withheld (but no consent of any Holder shall be required) prior to selling
or causing MONY Life to sell assets of the Closed Block Business constituting
less than substantially all of the assets of the Closed Block Business.
(6) (a) (a) As long as no Insurer Default has occurred and is
continuing, the Company shall not and shall cause MONY Life not to seek
regulatory approval for the termination of the Closed Block without the
consent of the Insurer, such consent not to be unreasonably withheld.
(b) The Company shall not, and shall cause MONY Life not to, seek
regulatory approval for any action that would reasonably be expected to
reduce the CB Debt Cash Flow or otherwise impair the Collateral or the
rights of the Secured Parties in the Collateral.
(7) The Company shall cause MONY Life not to distribute by way of
dividend or otherwise transfer (collectively, "transfer") to the Company or any
other Person, Subsidiaries or assets attributable to the Ongoing Businesses
within MONY Life, if such transfer would result in (i) a ML OB Dividend amount
in excess of the amount calculated pursuant to Section 14.01(2)(b), and (ii) the
book value of MONY Life after such transfer, calculated in accordance with GAAP,
falling below the book value of MONY Life, calculated in accordance with GAAP,
at the time of the issuance of the Series A Notes, except for extraordinary
dividends arising from Closed Block Reinsurance and transfers of Subsidiaries or
assets for which fair consideration is paid to MONY Life, as determined by an
independent investment banking firm of national reputation.
(8) Notwithstanding any provisions in this Indenture to the contrary,
no provision of this Indenture shall be deemed to apply to or to condition or
restrict MONY Life's right: (a) to seek, if required, the approval of the New
York Department of Insurance to enter into any Closed Block Reinsurance
transaction upon terms and conditions that are consistent with paragraphs (a)
through (i), inclusive, of Section 9.03(3) above; (b) to make, and receive, all
payments provided for or required by, the terms of the agreements entered into
in connection with any Closed Block Reinsurance transaction; (c) to remit to the
Company by means of one or more dividend payments, any or all of the capital
held in MONY Life within the Ongoing Businesses that is no longer required by
MONY Life to be held within MONY Life to meet MONY Group's objectives with
respect to RBC as a direct result of a completed Closed Block Reinsurance
transaction (the "Freed-Up Capital").
The restrictions appearing in clause (7) of this Section 11.10 shall
not apply to any such dividend payments consisting of Freed-Up Capital by MONY
Life as long as each of the following conditions are met at the time of any such
dividend payment:
(a) Concurrently with each such dividend payment, the Closed Block
Business receives, out of such dividend payment, an amount equal to the
Maximum Dividend Amount for ML CB Dividends attributable to the period
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during which such dividend payment is being made, as defined and described
in clause (a) of Section 14.01(2) below; and
(b) As a result of making such dividend payment, the ratio of MONY
Life's Total Adjusted Capital to Company Action Level RBC will not be
reduced below 300%; and
(c) MONY Life shall have obtained prior written assurance from Standard
& Poor's that the combined effect of the completion of the Closed Block
Reinsurance transaction and all dividend payments of Freed-Up Capital will
not result in any adverse rating action by Standard & Poor's with respect
to the insurer financial strength ratings of MONY Life, and MONY Life shall
have obtained prior written assurance from Xxxxx'x that the combined effect
of the completion of the Closed Block Reinsurance transaction and all
dividend payments of Freed-Up Capital will not result in any adverse rating
action by Xxxxx'x with respect to the insurer financial strength ratings of
MONY Life. Copies of such written assurances from Standard & Poor's and
Xxxxx'x shall be provided to the Insurer and the Closed Block Reinsurers;
provided, however, that each such recipient shall hold such written
assurances in strict confidence and shall not further disseminate or
distribute them.
SECTION 11.11. Dividends.
The Company shall cause MONY Life to seek to maintain a shareholder
dividend policy that results in the dividending of sufficient funds to the
Company to meet Debt Service on the Notes, subject to the extent of available
dividend capacity within the Closed Block Business and to the provisions of
Article Fourteen, and further subject to any applicable regulatory oversight.
SECTION 11.12. Management of Closed Block, Surplus and Related Assets and
Debt Service Coverage Account.
(1) The Company shall cause MONY Life to manage the operations of the
Closed Block in a manner consistent with the Plan of Reorganization, including
the investment guidelines applicable to the assets held in the Closed Block as
set forth in the Plan of Reorganization, and to use reasonable efforts to manage
the operations of the Closed Block so as to ensure that cash flow from the
Surplus and Related Assets will not be necessary to fund the cash flows required
to meet the liabilities and obligations of the Closed Block.
(2) The Company shall cause MONY Life to manage the Surplus and Related
Assets pursuant to the Investment Policy Statement for Surplus and Related
Assets attached as Exhibit D.
(3) The Company shall, and shall cause any Affiliate or any other
investment manager retained by the Company for such purpose to, manage the
assets held in the Debt Service Coverage Account pursuant to the DSCA Investment
Policy.
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SECTION 11.13. Non-Consolidation.
(1) The Company shall not have employees. The Company may enter into
service agreements with MONY Group, or any Affiliate of MONY Group, such that
the employees of such entity act on behalf of the Company; provided, however,
that such employees shall at all times hold themselves out to third parties as
representatives of the Company while performing duties under such service
agreement (including, without limitation, by means of providing such persons
with business or identification cards identifying such persons as agents of the
Company).
(2) MONY Group and its Affiliates shall act as agents of the Company
solely through express agencies; provided, however, that such Affiliate fully
discloses to any third party the agency relationship with the Company; and
provided, further, that such Affiliate receives fair compensation or
compensation consistent with regulatory requirements, as appropriate, from the
Company for the services provided.
(3) MONY Holdings shall not act as an agent for MONY Group or any
Affiliate of MONY Group.
(4) The Company shall allocate all overhead expenses other than
expenses allocable to the Company's use of office space made available by MONY
Group, including, without limitation, telephone and other utility charges, for
items shared between the Company and MONY Group, on the basis of actual use to
the extent practicable and, to the extent such allocation is not practicable, on
a basis reasonably related to actual use.
(5) The Company shall ensure that all actions of the Company are duly
authorized by its authorized personnel, as appropriate.
(6) The Company shall maintain the Company's books and records
separately from those of MONY Group, and use separate stationery bearing the
name "MONY Holdings, LLC" in all correspondence, and use separate invoices and
checks.
(7) The Company shall prepare consolidated financial statements for
itself and its consolidated Subsidiaries that are separate from the financial
statements of MONY Group.
(8) The Company shall not commingle funds or other assets of the
Company with those of MONY Group and shall not maintain bank accounts or other
depository accounts to which MONY Group is an account party, into which MONY
Group makes deposits or from which MONY Group has the power to make withdrawals.
(9) The Company shall not permit MONY Group to pay any of the Company's
operating expenses unless such operating expenses are paid by MONY Group
pursuant to an agreement between MONY Group and the Company providing for the
allocation of such expenses and such expenses are reimbursed by the Company out
of its own funds.
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(10) The Company shall at all times act solely in its own name and
through its duly authorized officers or agents in order to maintain an
arm's-length relationship with MONY Group and shall not enter into any contract
with MONY Group except on terms that are fair and equitable.
(11) The Company shall conduct its business solely in its own name so
as to not mislead third parties as to the identity of the Company with which
such third parties are conducting business, and shall use all reasonable efforts
to avoid the appearance that it is conducting business on behalf of MONY Group
or that the assets of the Company are directly available to pay the creditors of
MONY Group.
(12) The Company shall not consent to be liable for, or hold itself out
to be responsible for, any money borrowed by, or for any indebtedness incurred
by, MONY Group.
(13) The Company shall not consent to MONY Group granting consensual
liens on the Company's property.
(14) The Company shall maintain its assets in such a manner that it is
not costly or difficult to segregate, identify or ascertain such assets.
(15) The Company shall not assume, guarantee, become obligated for,
pay, or hold itself out to be responsible for, the debts or obligations of any
other affiliated Person or entity.
(16) The Company shall pay its own liabilities and expenses out of its
own funds drawn on its own bank account.
(17) The Company shall not acquire obligations or securities of its
members or Affiliates other than MONY Life.
(18) The Company shall not hold out its credit to any person as
available to satisfy the obligation of any other Person or entity.
(19) The Company shall not pledge its assets for the benefit of any
other entity or make any loans or advances to any Person or entity except as
provided in this Indenture or in connection with the Swaps.
(20) The Company shall not identify itself as a division of any other
Person or entity.
(21) As of the Closing Date, the Company shall have adequate capital in
light of its contemplated business operations and for the normal obligations
reasonably foreseeable in a business of its size and character.
(22) MONY Group shall include in its financial statements published
after the Closing Date the following statement: "MONY Group is a holding company
and is a legal entity separate and distinct from its subsidiaries. The rights of
MONY
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Group to participate in any distribution of assets of any subsidiary, including
upon its liquidation or reorganization, are subject to the prior claims of
creditors of that subsidiary, except to the extent that MONY Group may itself be
a creditor of that subsidiary and its claims are recognized. MONY Holdings, LLC
and its subsidiaries have entered into covenants and arrangements with third
parties in connection with the issuance of the CB Debt which are intended to
confirm their separate, `bankruptcy-remote' status, by assuring that the assets
of MONY Holdings, LLC and its subsidiaries are not available to creditors of
MONY Group or its other subsidiaries, except and to the extent that MONY Group
and its other subsidiaries are, as shareholders or creditors of MONY Holdings,
LLC and its subsidiaries, or would be, entitled to those assets."
(23) As long as no Insurer Default has occurred and is continuing,
except as may be consented to by the Insurer, the Company shall not enter into
(i) agreements with Affiliates, or (ii) agreements with third parties that in
the aggregate would be material, if such agreements do not contain the provision
that such Affiliates or third parties, in their respective capacities as
counterparties under such agreements, will not seek to initiate bankruptcy or
insolvency proceedings in respect of the Company. The Company shall use its
reasonable efforts to include the provision described in the preceding sentence
in all agreements with third parties other than those specified in the preceding
sentence, to the extent practicable without interfering with the conduct of the
business affairs of the Company, and taking into consideration of the
willingness of third parties to enter into agreements containing such provision.
(24) The Company shall observe strictly all organizational and
procedural formalities required by the Indenture, its Certificate of Formation
and its LLC Agreement, and by applicable law, as the case may be, including, but
not limited to, in the declaration and payment of dividends to MONY Group.
SECTION 11.14. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 11.01 to 11.13, inclusive, if before
the time for such compliance the Holders of at least 66-2/3% in Remaining
Principal Amount of the Notes Outstanding shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition (it being understood that, so long as no Insurer Default
has occurred and is continuing, the Insurer shall have the exclusive right under
Section 1.03(4) to exercise the rights of the Holders to so waive), but no such
waiver shall extend to or affect such covenant or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
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ARTICLE TWELVE
REDEMPTION OF NOTES
SECTION 12.01. Right of Redemption by the Company.
(1) The Notes may be redeemed at the election of the Company, in whole
or in part on any Scheduled Payment Date, at the Redemption Price, payable in
cash, together with interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date.
(2) Notwithstanding the foregoing paragraph (1), upon the occurrence of
a Regulatory Redemption Event, the Notes may be redeemed at the election of the
Company, as a whole or in part, on any Scheduled Payment Date, at the Redemption
Price applicable to Regulatory Redemption Events, payable in cash, together with
interest and Liquidated Damages (if any) accrued to but not including the
Redemption Date.
SECTION 12.02. Redemption by the Company by Action of the Insurer.
If there occurs (i) a Regulatory Redemption Event or (ii) a change in
New York law or regulation (other than with respect to taxes) after the Closing
Date that materially adversely affects the transferability of the Collateral,
the Company shall provide notice to the Trustee and the Insurer of such event or
change, not more than 15 days following the date on which the law or regulation
giving rise to such event or change is enacted, issued or promulgated. So long
as no Insurer Default has occurred and is continuing, the Insurer will have the
right, exercisable within 60 days following receipt of notice by the Company of
any such change, to require the Company to redeem all of the Notes, at the
Redemption Price, payable in cash, applicable to Regulatory Redemption Events,
together with interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date, it being agreed that the Redemption Date shall be
not later than 120 days following receipt by the Company of written notice of
the Insurer's exercise of such right.
SECTION 12.03. Redemption Due to Sale of All or Substantially All of Closed
Block Business.
If any action by the Company or MONY Life results in a sale of all or
substantially all of the assets of the Closed Block Business, the Company shall
provide notice to the Insurer and the Trustee no later than 30 days prior to the
date of such sale, and shall no later than the effective date of such sale,
redeem all of the Notes at the Redemption Price, payable in cash, applicable to
redemptions due to the sale of all or substantially all of the Closed Block
Business together with interest and Liquidated Damages (if any) accrued to but
not including the Redemption Date.
SECTION 12.04. Redemption Due to Change of Control.
Within 15 days after the later of (i) the effective date of any Change
of Control or (ii) the date on which the Company has knowledge of a Change of
Control, the
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Company shall provide to the Trustee and the Insurer (as long as no Insurer
Default has occurred and is continuing) notice of such Change of Control
pursuant to Section 1.04.
So long as no Insurer Default has occurred and is continuing, the
Insurer may, within 60 days following its receipt of notice of such Change of
Control by the Company, notify the Company of its exercise of the right to
require the Company to redeem the Notes within 60 days following receipt of
notice from the Insurer. The Company will thereupon redeem all of the Notes, at
the Redemption Price, payable in cash, applicable to redemptions due to a Change
in Control, together with interest and Liquidated Damages (if any) accrued to
but not including the Redemption Date.
SECTION 12.05. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section
12.01 shall be evidenced by a Company Order. In case of any redemption at the
election of the Company of less than 100% of the Remaining Principal Amount of
the Notes Outstanding, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed.
SECTION 12.06. Notice of Redemption.
Notice of redemption shall be given by the Company by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date,
(4) a good faith estimate (as provided by the Swap Counterparty) of the
net Swap termination payments, if any, owed to the Swap Counterparty in
connection with the termination of the Swaps,
(5) if less than 100% of the Notes are to be redeemed, the amount to be
redeemed with respect to each Note,
(6) that on the Redemption Date the Redemption Price will become due
and payable upon each such Note to be redeemed and that interest thereon will
cease to accrue on and after said date, and
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(7) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given to the Holders by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 12.07. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or the Paying Agent, as applicable, an amount of money sufficient to pay
the Redemption Price, and interest and Liquidated Damages (if any) accrued to
but not including the Redemption Date with respect to the Notes which are
subject to redemption on that date, and, in the case of a redemption pursuant to
Sections 12.01, 12.03 or 12.04, the net Swap termination payments (if any) to be
incurred in connection with such redemption (the amount of which will have been
provided by the Swap Counterparty to the Company), to the extent that allocable
funds in the Debt Service Coverage Account are not sufficient to pay the
aggregate of such amounts; provided, however, that any use of funds in the Debt
Service Coverage Account for payment of any portion of such amounts shall be in
accordance with Section 4.05.
SECTION 12.08. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, together with interest and Liquidated Damages (if any)
accrued to but not including the Redemption Date and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) all or the portion of the Notes subject to redemption shall
cease to bear interest and accrue additional Liquidated Damages. Upon surrender
of any such Note or portion thereof for redemption in accordance with said
notice, such Note or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest and Liquidated Damages (if any)
to the Redemption Date; provided, however, that payments of interest whose
applicable Scheduled Payment Date is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the Remaining Principal Amount thereof shall, until
paid, bear interest from the Redemption Date at the rate borne by the Note.
SECTION 12.09. Notes Redeemed in Part.
Any Note that is to be redeemed only in part shall be surrendered at an
office or agency of the Company designated for that purpose pursuant to Section
11.02 (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed
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by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder, in aggregate Initial
Principal Amount equal to and in exchange for the Remaining Principal Amount of
the Note not so surrendered.
If the Notes are to be redeemed in part, the amount to be redeemed
shall be allocated pro rata according to the then Remaining Principal Amount
among all of the Notes Outstanding at the Redemption Date.
SECTION 12.10. Release of Company.
Upon the redemption of all of the Notes, the Company shall be fully
released from its obligations under the Notes and, upon payment of any
termination payment to the Insurer under the Insurance Agreement and the payment
of all amounts owing to the Insurer thereunder, the Insurance Agreement shall
terminate in accordance with its terms, except to the extent specified therein,
and no further premium will be payable pursuant to the Insurance Agreement. The
Company shall remain obligated to the Insurer, however, under this Indenture and
the Insurance Agreement until all amounts payable to the Insurer under this
Indenture and the Insurance Agreement have been paid in full or the Company has
been released from its obligations to the Insurer under this Indenture and the
Insurance Agreement pursuant to the terms of this Indenture.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 13.01. Company's Option to Effect Defeasance.
The Company may elect, at its option at any time, to effect defeasance
of all the Notes as provided in Section 13.02 upon compliance with the
conditions set forth below in this Article Thirteen. Any such election shall be
evidenced by a Company Order. Upon the Company's exercise of its option to
defease all but not less than all the Notes, and the satisfaction of the
conditions set forth in this Article Thirteen, the Debt Service Coverage Account
shall be liquidated, all amounts therein released to the Company and the
security interest in the Collateral shall be terminated. On the funding date of
a defeasance, the Insurance Policy on its terms will terminate as to all future
payments but will remain in effect for all amounts paid prior to such funding
date for the applicable fraudulent transfer or voidable transfer periods
following such funding date.
SECTION 13.02. Defeasance and Discharge.
The Company shall be deemed to have been discharged from its
obligations with respect to the Notes and to the Insurer as provided in this
Section 13.02 on and after the date the conditions set forth in Section 13.03
are satisfied (hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Notes and to have satisfied all its
other obligations under the Notes, this Indenture and the
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Registration Rights Agreement (including but not limited to the obligation to
pay Liquidated Damages) insofar as the Notes are concerned, to the Insurer under
this Indenture and the Insurance Agreement (and the Trustee and the Insurer, at
the expense of the Company, shall execute proper instruments acknowledging the
same), and this Indenture, the Insurance Agreement and the Registration Rights
Agreement shall terminate, subject to the following, which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders to
receive, solely from the trust fund described in Section 13.04 and as more fully
set forth in such Section, payments of principal of and interest on the Notes
and Liquidated Damages (if any) in respect of the Notes when such payments are
due, (2) the Company's obligations with respect to the Notes under Sections
3.06, 3.08, 11.02 and 11.03, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder (4) provisions surviving under the terms of
the Insurance Agreement, and (5) this Article Thirteen.
SECTION 13.03. Conditions to Defeasance.
The following shall be the conditions to the application of Section
13.02 to the Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the requirements
contemplated by Section 7.09 and agrees to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge the principal of and interest on the Notes through their respective
Stated Maturities, in accordance with the terms of this Indenture and the Notes
and Liquidated Damages, if any, in accordance with the terms of the Registration
Rights Agreement. As used in this Indenture, "U.S. Government Obligation" means
(x) any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any U.S. Government Obligation which is so
specified and held; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any
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amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) Either (i) the Company shall take actions reasonably acceptable
to the Insurer designed to avoid the inclusion of the trust assets deposited
pursuant to Section 13.03(1) in the bankruptcy estate of the Company (such as
the delivery of an Opinion of Counsel in a form acceptable to the Insurer to
such effect), or (ii) the effective date of the defeasance will occur only after
one year and one day after the date of the deposit specified in Section
13.03(1).
(3) The Company shall have delivered to the Trustee, with a copy to
the Insurer, an Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this Indenture, there has been a change in the applicable
U.S. federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders will not recognize
gain or loss for U.S. federal income tax purposes as a result of the deposit,
Defeasance and discharge to be effected with respect to the Notes and will be
subject to U.S. federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Notes, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Notes shall have occurred
and be continuing at the time of such deposit or, with regard to any such event
specified in Section 6.01(c), at any time on or prior to the 90th day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(6) Such Defeasance shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(7) Such Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment
Company Act of 1940 unless such trust shall be registered under such Act or
exempt from registration thereunder.
(8) All amounts payable to the Insurer under this Indenture and the
Insurance Agreement have been paid in full.
(9) The Insurance Policy and the Swap Policy have terminated to the
extent provided by their terms or otherwise and have been surrendered to the
Insurer for cancellation, the Swap Agreement has terminated, and all amounts
payable to the Swap Counterparty under the Swaps have been paid in full.
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(10) The Company shall have obtained prior written assurance from
Standard & Poor's that the defeasance will not result in any adverse rating
action by Standard & Poor's with respect to the ratings of the Notes and the
Company shall have obtained prior written assurance from Xxxxx'x that the
defeasance will not result in any adverse rating action by Xxxxx'x with respect
to the Notes. Copies of such written assurances from Standard & Poor's and
Xxxxx'x shall be provided by the Company to the Insurer and the Trustee on
behalf of the Holders.
(11) The Company shall have delivered to the Trustee, with a copy to
the Insurer, an Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance have been complied
with.
SECTION 13.04. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of paragraph (2) of Section 11.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
13.04 and Section 13.05, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.03 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders, of all sums due and to become due thereon in respect
of principal and any premium and interest and Liquidated Damages, but money so
held in trust need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.03 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Notes then Outstanding.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.03 with respect to any Notes that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance of
such Notes.
SECTION 13.05. Reinstatement.
If the Paying Agent is unable to apply any money in accordance with
this Article with respect to any Notes by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations under this Indenture, the Registration
Rights Agreement and such
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Notes from which the Company has been discharged or released pursuant to Section
13.02 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article Thirteen with respect to such Notes, until such time as the
Paying Agent is permitted to apply all money held in trust pursuant to Section
13.04 with respect to such Notes in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any such Note or Liquidated Damages in respect of such
Note following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holder of such Note to receive such
payment from the money so held in trust.
ARTICLE FOURTEEN
DIVIDEND ALLOCATION
SECTION 14.01. Dividend Allocation.
(1) Any dividends declared by MONY Life on its common stock will
consist of the sum of two separate dividend components, one with respect to its
Closed Block Business (the "ML CB Dividend"), and the other with respect to its
Ongoing Businesses (the "ML OB Dividend"), subject to the conditions set forth
in this Indenture. Whenever MONY Life pays a dividend (including a
dividend-in-kind), the amount of the ML CB Dividend amount will be (i) debited
to the retained earnings or paid-in capital of MONY Life's Closed Block Business
and (ii) directly deposited into the DSCA-Subaccount CBB. Concurrently, the
amount of the ML OB Dividend component, if any, will be (i) debited to the
retained earnings or paid-in capital of MONY Life's Ongoing Businesses and (ii)
following establishment by the Company of appropriate reserves for operating
expenses attributable to its Ongoing Businesses, immediately distributed to MONY
Group without having been deposited in the Debt Service Coverage Account.
(2) The Company shall be permitted, but not required, to cause MONY
Life to pay aggregate shareholder dividends to the Company in an amount (in this
Indenture called the "Maximum Dividend Amount") up to the sum of:
(a) as to ML CB Dividends, an amount equal to the least of:
(i) the prior year's Net Gain from Operations of MONY Life's
Closed Block Business, and
(ii) 10% of the prior year's Closed Block Business Surplus,
and
(iii) the amount, if any, by which the current year's Closed
Block Business Surplus exceeds any Required Surplus;
and
(b) as to ML OB Dividends, the remainder of MONY Life's permitted
dividend capacity under the New York Business Corporation Law and the New
York Insurance Law and other applicable regulations; provided, however, that
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MONY Life may dividend or otherwise transfer Subsidiaries or assets in
excess of such amount with prior regulatory approval subject to limitations
provided in Section 11.10(7);
provided, however, that the Company may permit MONY Life to pay a dividend in
excess of the Maximum Dividend Amount in relation to the Ongoing Businesses upon
compliance with the requirements of Section 11.10(7).
(3) The Company shall not be required to cause MONY Life to pay ML CB
Dividends and/or ML OB Dividends up to the Maximum Dividend Amount; provided
that, if MONY Life does not pay ML CB Dividends in the full amount determined by
application of Section 14.01(2)(a), then the percentage of the aggregate
shareholder dividend actually paid by MONY Life to the Company during the
relevant year that is allocated and attributed to MONY Life's Closed Block
Business shall not be less than the CB Dividend Percentage for that year.
The "CB Dividend Percentage" means with respect to the aggregate
dividend paid by MONY Life in any year, the greater of:
(a) the quotient of:
(i) the prior year's Net Gain from Operations of MONY Life's
Closed Block Business (it being understood that the determination of
such amount is only for purposes of this Indenture and shall not be
used by MONY Life for reporting purposes with insurance regulatory
authorities, including the New York Department of Insurance), divided
by
(ii) the prior year's Net Gain from Operations for MONY Life
in its entirety; or
(b) the quotient of:
(i) 10% of the prior year's Closed Block Business Surplus,
divided by
(ii) 10% of the prior year's actual statutory surplus, as set
forth in MONY Life's annual statutory statement as filed with the New
York Department of Insurance for MONY Life in its entirety;
provided, however, that (x) if clause (a) or (b) above yields an indeterminate
amount, the CB Dividend Percentage shall be 100%, and (y) the CB Dividend
Percentage shall never exceed 100%.
(4) Notwithstanding the foregoing, if (i) any amounts owed to the
Insurer under this Indenture or the Insurance Agreement are not paid in full
when due (subject to the agreed grace periods) or (ii) the fair market value of
the assets remaining in the subaccounts of the Debt Service Coverage Account,
such fair market value to be determined by the Investment Manager and notified
to the Company and the Trustee, in
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the aggregate falls below the greater of 10% of the Remaining Principal
Amount of the Notes Outstanding and the aggregate Estimated Debt Service payable
on the following four Scheduled Payment Dates (or the Scheduled Payment Dates
remaining until the Stated Maturity of the latest maturing series of Notes if
less than four), as calculated by the Company, provided to the Insurer, and
confirmed by the Trustee, or (iii) MONY Life's financial strength rating has
been downgraded since the Closing Date by at least three rating notches by at
least two of Xxxxx'x, Standard & Poor's, Fitch or A.M. Best, or (iv) any amount
is required to be deposited in the Additional Reserve Account, pursuant to the
circumstances described in Section 4.11, then any dividend paid by MONY Life
will be allocated first to the Closed Block Business up to the amount determined
by application of Section 14.01(2)(a), and only then to the Ongoing Businesses.
(5) For purposes of applying the provisions of this Article
Fourteen for dividends declared by MONY Life on its common stock in 2002 based
upon its financial results in 2001, the following special calculation rules
shall apply to account for the timing of the Closing Date:
(A) the amount determined by application of Section 14.01(2)(a)
shall be $15.6 million; and
(B) the applicable CB Dividend Percentage shall be 100%.
ARTICLE FIFTEEN
COLLATERAL AND SECURITY
SECTION 15.01. Obligations Secured Hereby.
This Article Fifteen is made to secure and provide for payment of the
following obligations and liabilities of the Company (such obligations and
liabilities being in this Indenture called the "Secured Obligations"):
(1) to pay any interest, principal, premium and other amounts
payable on the Notes (including interest on any deferred interest payments) and
any Liquidated Damages in respect of the Notes (and interest accruing thereon if
provided); and
(2) to pay any amounts owing to the Insurer pursuant to this
Indenture and the Insurance Agreement; and
(3) to pay to the Swap Counterparty any amounts owing under the
Swaps.
The Collateral shall be applied to the Secured Obligations in
accordance with the provisions of Article Six and this Article Fifteen.
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SECTION 15.02. Collateral.
The Company, as security for the payment of the Secured Obligations,
hereby assigns, conveys, transfers, delivers and sets over to the Trustee for
the benefit of the Secured Parties, and grants to the Trustee for the benefit of
the Secured Parties a lien on and a security interest in, all of the Company's
right, title and interest (now existing or hereafter acquired) in, to and under
the following (collectively, the "Collateral"):
(1) the Debt Service Coverage Account, including the DSCA-
Subaccount CBB, the DSCA-Subaccount OB and the DSCA-Subaccount OB (Deposit) and
all Cash, securities, instruments and other property held in the Debt Service
Coverage Account from time to time, and all certificates and instruments, if
any, from time to time representing the Debt Service Coverage Account or any
property therein; except, however, the Insurer and the Trustee on behalf of the
Secured Parties each hereby authorizes free of any security interest any
disposition of property from the Debt Service Coverage Account or any subaccount
thereof if and only to the extent that such disposition is made in accordance
with this Indenture;
(2) the rights of the Company under the CBB Tax Agreement and the
obligations of MONY Group to pay any amounts payable by or on behalf of MONY
Group to the Company, subject only to any netting or set-off provisions
contained in the CBB Tax Agreement, and whether now existing or hereafter
executed by or assigned to the Company, including all monies due or to become
due to the Company thereunder or in connection therewith and all amounts
received with respect thereto or upon the assignment or transfer thereof,
whether payable as interest, fees, expenses, costs, indemnities, insurance
recoveries, damages for the breach or repudiation thereof or otherwise and
whether payable by MONY Group or any other Person, and all rights, remedies,
powers, privileges and claims of the Company under or in respect of any of the
foregoing (whether available pursuant to the terms thereof or otherwise
available to the Company at law or in equity), including the rights of the
Company to enforce the CBB Tax Agreement and to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or waivers under
or with respect to the CBB Tax Agreement to the same extent as the Company could
but for the assignment and lien granted to the Trustee in this Section 15.02.
Upon commencement of any foreclosure proceeding, the Company shall direct MONY
Group or any other Person to pay such amounts directly to the Trustee for the
benefit of the Secured Parties;
(3) the rights of the Company under the Swaps and the Swap
Agreement and the obligations of each party other than the Company to pay any
amounts payable by such other party and any applicable credit support provider,
subject to any netting or set-off provisions contained in any such Swap, and
whether now existing or hereafter executed by or assigned to the Company,
including all monies due or to become due to the Company thereunder or in
connection therewith and all amounts received with respect thereto or upon the
assignment or transfer thereof, whether payable as interest, fees, expenses,
costs, indemnities, insurance recoveries, collateral damages for the breach or
repudiation thereof or otherwise and whether payable by the relevant party or
any other Person, and all rights, remedies, powers, privileges and claims of the
Company
110
under or in respect of any of the foregoing (whether available pursuant to
the terms thereof or otherwise available to the Company at law or in equity),
including the rights of the Company to enforce the Swaps and to give or withhold
any and all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Swaps to the same extent as the Company
could but for the assignment and lien granted to the Trustee in this Section
15.02. Upon commencement of any foreclosure proceeding, the Company shall direct
the Swap Counterparty and any applicable credit support provider to pay such
amounts directly to the Trustee for the benefit of the Secured Parties;
(4) all other property or rights delivered or assigned by the
Company or on its behalf to the Trustee from time to time under this Indenture
or otherwise, to secure or guarantee payment of the Secured Obligations; and
(5) to the extent not covered above, all products and proceeds of,
and all dividends, collections, earnings, accruals and other payments with
respect to, any or all of the foregoing.
SECTION 15.03. Management of Swaps and Tax Agreements Prior to Event of
Default.
Notwithstanding the assignment and lien granted to the Trustee
hereunder, prior to any foreclosure on the Collateral, the Company shall,
subject to the other provisions of this Indenture, nevertheless be permitted to
manage and maintain all Swaps and Tax Agreements and to engage in all related
activities with all other parties to such agreements in accordance with its
usual procedures, including (i) giving any consents, requests, notices,
directions, approvals, extensions or waivers that are required or permitted to
be given by the Company in connection with any such agreement; (ii) entering
into any amendment or modification to, or terminating or agreeing to the
termination of, any such agreement; provided, however, that any such amendment,
modification, termination or agreement (A) with respect to the Swap Agreement or
Swaps shall require the consent of the Insurer and (B) with respect to any Tax
Agreement, shall require the consent of the Insurer unless such amendment,
modification, termination or agreement is required by a regulatory agency or
would not decrease the cash flow into or increase the cash flow out of the
DSCA-Subaccount CBB; (iii) receiving, collecting and retaining all payments made
by such other parties in respect of such agreements (except as otherwise
provided in any such agreements and this Indenture); (iv) releasing or
compromising any claim under any such agreement; and (v) entering into any other
transaction, agreement or arrangement with any such other parties without
limitation, in each case as though the Company had not assigned or granted a
lien on its rights in respect of any such agreement.
SECTION 15.04. Perfection of Security Interest in Collateral.
(1) The Company agrees that the Trustee, in its capacity as Trustee
for the Secured Parties, is the Entitlement Holder with respect to each
securities account and a Customer with respect to each deposit account that is
included in the DSCA-Subaccount CBB, the DSCA-Subaccount OB and the
DSCA-Subaccount OB (Deposit).
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(2) The Company shall join with the Trustee in executing, and will
file or record, such notices, financing statements or other documents as may be
reasonably necessary for the perfection of the security interests granted to the
Trustee hereunder, and as the Insurer and its counsel may reasonably request,
such instruments to be in form and substance reasonably satisfactory to the
Trustee and the Insurer. The Company also agrees to do such further acts and
things and execute and deliver to the Trustee such additional conveyances,
assignments, agreements and instruments as the Trustee or the Insurer may at any
time reasonably request in connection with the administration and enforcement of
the security interest granted hereunder or relative to the Collateral or any
part thereof or in order to assure and confirm unto the Trustee its rights,
powers and remedies hereunder.
SECTION 15.05. Continuing Security Interest; Termination.
(1) This Indenture, on behalf of the Secured Parties shall create a
continuing security interest in the Collateral in favor of the Trustee and shall
remain in full force and effect in accordance with its terms until all of the
Secured Obligations are paid or satisfied in full.
(2) The security interest created by this Indenture shall not be
considered satisfied by payment or satisfaction of any part of the Secured
Obligations to the Secured Parties hereby secured but shall be a continuing
security interest and shall not be discharged, prejudiced or affected in any way
by time being given to the Company or by any other indulgence or concession to
the Company granted by the Trustee, by the taking, holding, varying,
non-enforcement or release by the Trustee of any other security for all or any
of the Secured Obligations, by any other thing done or omitted to be done by the
Trustee or any other Person or by any other dealing or thing including any
variation of or amendment to any part of the Collateral and any circumstances
whatsoever that but for this provision might operate to discharge any of the
Secured Obligations or to exonerate or discharge the Company from its
obligations hereunder or otherwise affect the security interest hereby created.
SECTION 15.06. Protection of Collateral.
(1) The Company shall at the reasonable request of the Insurer or
the Trustee take any action necessary or advisable to:
(a) maintain or preserve any and all Liens created by this
Indenture on the Collateral (and the priorities thereof), or carry out more
effectively the purposes hereof;
(b) perfect or protect the validity of the assignment of Collateral
and the Liens created by this Indenture;
(c) enforce any rights with respect to the Collateral; and
112
(d) preserve and defend title to the Collateral and the rights of
the Trustee, the Insurer and the Holders in such Collateral against the
claims of all Persons.
(2) The Company shall not (i) take any action, or fail to take any
action, if such action or failure to take action may interfere with the
enforcement of any rights hereunder that are material to the rights, benefits or
obligations of the Secured Parties; (ii) waive or alter any rights with respect
to the Collateral (or any agreement or instrument relating thereto); (iii) take
any action, or fail to take any action to collect any taxes, assessments,
charges or fees with respect to the Collateral if such action or failure to take
action may interfere with the enforcement of any rights with respect to the
Collateral; or (iv) fail to pay any tax, assessment, charge or fee with respect
to the Collateral, or fail to defend any action, if such failure to pay or
defend may adversely affect the priority or enforceability of the Secured
Parties' first priority lien on or perfected security interest in the Collateral
or the Company's right title or interest in the Collateral.
SECTION 15.07. Performance of Obligations.
(1) The Company shall not take any action, and shall use its best
efforts not to permit any action to be taken by others, that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture.
(2) The Company may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Trustee in an Officer's Certificate of the Company
shall be deemed to be action taken by the Company.
(3) The Company shall punctually perform and observe all its
obligations and agreements contained in this Indenture, including, but not
limited to, filing or causing to be filed all documents required to be filed by
the terms of this Indenture in accordance with and within the time periods
provided for in this Indenture and therein.
(4) Subject to Section 6.06, the Company shall reimburse and
indemnify the Trustee or the Insurer, as applicable, for their respective
reasonable costs and expenses (including attorney's fees) and hold each harmless
for any liabilities incurred in exercising its remedies in respect of an Event
of Default, including their rights of acceleration and foreclosure.
SECTION 15.08. Further Assurances.
The Company will execute, deliver, file and record any financing
statement in the proper filing office in the appropriate jurisdictions as
required under Article 9 of the UCC, or any other document, continuation
statement or other instruments
113
and take any other action that may be necessary to create, preserve, perfect or
validate any security interest granted under Article 15 of this Indenture, to
enable any Secured Party to exercise or enforce its rights under this Indenture
with respect to the Collateral.
SECTION 15.09. Power of Attorney.
The Company hereby irrevocably appoints the Trustee and any receiver,
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full power and authority in the name of the Company
or the name of such attorney-in-fact, from time to time in the Trustee's
discretion, for the purpose of taking such action and executing such agreements,
financing statements, continuation statements, instruments and other documents,
in the name of the Company, as provided in this Indenture and as the Trustee may
reasonably deem necessary to perfect, promote and protect and enforce the
security interest of the Secured Parties in the Collateral. Notwithstanding the
foregoing, the Trustee has no responsibility for the validity, perfection,
priority or enforceability of any lien or security interest and shall have no
obligation to take any action to procure or maintain such validity, perfection,
priority or enforceability.
SECTION 15.10. No Pledge of Collateral to Others.
The Company shall not (i) create, incur or suffer to exist, or agree
to create, incur or suffer to exist, or consent to cause or permit in the future
(upon the happening of a contingency or otherwise) the creation, incurrence or
existence of any Lien or Restriction on Transferability on the Collateral except
for (A) Liens the validity of which are being contested in good faith by
appropriate proceedings, (B) Liens for taxes that are not then due and payable
or that can be paid thereafter without penalty, (C) Liens to secure payment for
services rendered by the Trustee with respect to the Notes, (D) Liens otherwise
incurred in connection with borrowings permitted hereunder and made in the
ordinary course of businesses in accordance with the Company's stated investment
objectives policies and restrictions, and (E) Liens in favor of the Secured
Parties or (ii) sign or file under the UCC of any jurisdiction any financing
statement which names the Company as a debtor, or sign any security agreement
authorizing any secured party thereunder to file such financing statement,
except in each case any such instrument solely securing the rights and
preserving the Lien of the Secured Parties.
SECTION 15.11. No Change in Issuer's Name, Structure or Office.
The Company will not change its name, jurisdiction or organization or
principal place of business or remove the books or records relating to the
Collateral from the address specified below unless it has taken such action in
advance of such change or removal, if any, as is necessary to cause the security
interests of the Trustee in the Collateral to continue to be perfected without
interruption.
Address at which Books and Records are Kept:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
114
SECTION 15.12. Release of Collateral.
Upon the payment in full of all amounts due in respect of the Notes
and the Swaps, under this Indenture and under the Insurance Agreement and of any
Liquidated Damages under the Registration Rights Agreement, or upon the other
circumstances specified in this Indenture, all of the Collateral shall be
released from the Liens created hereby, and all rights of the Trustee and the
Secured Parties in such Collateral shall cease.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
115
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
MONY HOLDINGS, LLC
By:/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
AMBAC ASSURANCE CORPORATION
By:/s/ Xxxxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: M.D.
THE MONY GROUP INC.,
Solely for the limited purposes set forth
in Sections 6.06, 11.05, 11.10(1) and 11.13(22)
By:/s/ Xxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President and General
Counsel
BANK ONE TRUST COMPANY, N.A.
By:/s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Officer
116
Exhibit A
Form of Series A Notes
MONY HOLDINGS, LLC
SERIES A FLOATING RATE INSURED NOTES DUE 2017
$______________________
NO._____
MONY Holdings, LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of _______________ Dollars (or such lesser remaining
principal amount as is reflected in the books and records of the Trustee under
the Indenture referred to below), at the times and in the amounts pursuant to
the amortization schedule set forth on the reverse hereof, and to pay interest
thereon from and including April 30, 2002 to but excluding the first Scheduled
Payment Date (as defined below), and for each successive period (each an
"Interest Period") from and including the last day of the preceding Interest
Period to but excluding the following Scheduled Payment Date, subject to certain
exceptions set forth in the Indenture at a rate per annum equal to Three-Month
LIBOR per annum plus 0.55%, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Scheduled Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 6, April 6, July 6 or October 6 (whether or
not a Business Day), as the case may be, next preceding such Scheduled Payment
Date. The Scheduled Payment Dates shall be January 21, April 21, July 21 and
October 21, commencing July 21, 2002.
If this Note is issued in the form of a Global Note, all
payments of the principal of, redemption price, if any, interest on and other
amounts under this Note shall be made in immediately available funds to the
Depositary. If this Note is issued as a Restricted Certificated Note, all
payments of the principal of, redemption price, if any, interest on and other
amounts under this Note will be made at the Corporate Trust Office of the
Trustee in The City of New York, New York, maintained for such purpose, and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by wire transfer or by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Notes Register.
A-1
The "Stated Maturity" of this Note will be January 21, 2017.
Installments of principal of this Note will be due and payable, in accordance
with the Indenture referred to on the reverse hereof, in the manner described on
the reverse hereof.
This Note is one of a duly authorized issue of notes of the
Company, issued and to be issued under an Indenture, dated as of April 30, 2002
(herein, as supplemented or amended from time to time, called the "Indenture",
which term shall have the meaning assigned to it in such instrument), among the
Company, the Insurer (as defined below), The MONY Group Inc., solely for limited
purposes as set forth therein, and Bank One Trust Company, N.A. (herein called
the "Trustee" which term includes any successor trustee under the Indenture)
designated as its Series A Floating Rate Insured Notes due 2017 (herein called
the "Series A Notes"), limited in aggregate Initial Principal Amount to
$300,000,000. The Company has also authorized the issuance from time to time
under the Indenture of additional series of floating rate and fixed rate insured
notes as provided in the Indenture (collectively, the "Additional Notes" and
together with the Series A Notes, the "Notes").
Reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Insurer, the Trustee and the Holders of the Notes of each series. This
Note is subject to the provisions of the Indenture.
This Note is secured pursuant to the Indenture by the
Collateral (as defined in the Indenture) consisting of certain property and
rights equally and ratably pledged as security for the Notes of each series, as
provided in the Indenture.
Scheduled payments of principal and interest on the Notes, but
not Special Interest (as defined on the reverse hereof), are guaranteed by Ambac
Assurance Corporation (the "Insurer") under the Insurance Policy, dated as of
April 30, 2002, issued for the benefit of the Trustee on behalf of the Holders
of the Notes (the "Insurance Policy").
So long as (1) no Insurer Default (as defined in the
Indenture) has occurred and is continuing, the Insurer shall be entitled to
exercise all rights and remedies with respect to the Notes under the Indenture,
including the right to vote on all matters presented to the Holders, the
exercise of remedies and the waiver of breaches and defaults, except for the
rights of each of the Holders of the Notes to approve any changes in the
material terms of the Notes as specified in the Indenture and (2) an Insurer
Default occurs and is continuing, all rights and remedies available to a
specific series of Notes shall be exercised directly by the Holders of such
series of Notes, and all rights and remedies available to Holders as a group
under the Indenture shall be exercised by the Holders, voting as a group.
Under the terms of the Insurance Policy, the Insurer is not
obligated to pay any payments with respect to any Note after the Company has
made a deposit to effect a defeasance of such Note pursuant to the Indenture.
Each Holder by acceptance of this Note covenants and agrees to release the
Insurer, subject to certain limited bankruptcy
A-2
related exceptions as set forth in the Insurance Policy, of all of its
obligations pursuant to the Insurance Policy upon the occurrence of such a
deposit.
Each Holder by acceptance of this Note covenants and agrees
that recourse with respect to the obligations of the Company on the Notes, the
Indenture, the Insurance Agreement or the Registration Rights Agreement or any
other agreement, instrument, certificate or other document delivered in
connection therewith shall be limited first, to the Collateral, and, upon
foreclosure on all the Collateral, liquidation of all the Collateral and
application of the moneys so collected pursuant to the Indenture, second, to the
Company as senior, unsecured indebtedness to the extent of the Fair Market Value
of the Closed Block Business (as defined in the Indenture) as of the date of the
commencement of foreclosure on the Collateral.
Each Holder by acceptance of this Note covenants and agrees
that no recourse may be taken with respect to the Notes, the Indenture, the
Insurance Policy, the Insurance Agreement or the Registration Rights Agreement
or any other agreement, instrument, certificate or other document delivered in
connection therewith, against (i) any member of the Company, any Affiliate,
Subsidiary or controlling person thereof, or (ii) any stockholder, partner,
member, officer or director of any of such parties in their individual
capacities, any holder of a beneficial interest in any of such parties or any
successor or assignee thereof in their individual capacities or against any
beneficial or equity owner of a trust, including MONY Group or MONY Life (the
parties referred to in clauses (i) and (ii) of this paragraph are referred to
collectively as the "Exculpated Parties"). Except as provided above, no suit,
claim or proceeding will be brought against the Exculpated Parties or any of
them for any obligation relating to the Notes, the Indenture, the Insurance
Agreement or the Registration Rights Agreement or any agreement, instrument,
certificate or other document delivered in connection therewith.
Each Holder by acceptance of this Note covenants and agrees,
to the fullest extent permitted by law, that it will not at any time prior to
foreclosure on all of the Collateral, liquidation of all of the Collateral and
application of the moneys so collected pursuant to the Indenture, institute
against the Company, or join in any institution against the Company of, any
bankruptcy, reorganization, arrangement, insolvency, rehabilitation,
conservation or liquidation proceedings, or any other proceedings under any
United States federal or state, or any other bankruptcy, insolvency or similar
law in connection with any obligations relating to the Indenture, the Notes, the
Insurance Agreement or any agreement relating hereto or thereto.
The Company shall treat this Note as debt of MONY Group for
United States federal, state and local tax purposes, and each Holder, by
acceptance of this Note, acknowledges and agrees to such treatment, and
covenants to take no action inconsistent with such treatment unless otherwise
notified by the Company.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place. Capitalized terms
used and not otherwise defined herein are defined in the Indenture.
A-3
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
MONY Holdings, LLC
By ____________________________
This is one of the Notes of the series designated therein
referred to in the within mentioned Indenture.
BANK ONE TRUST COMPANY, N.A., as
Trustee
BY ____________________________
Authorized Officer
A-5
Reverse of Note.
The interest on this Note shall be payable quarterly in
arrears (including interest on any interest that is not paid when due to the
extent permitted by applicable law), at a rate per annum equal to Three-Month
LIBOR (as defined below) plus 0.55%; provided, however, that if (i) the Company
has not filed a registration statement (the "Exchange Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), registering
a note substantially identical to this Note (except that such Note will not
contain terms with respect to the Special Interest payments described below or
transfer restrictions) pursuant to an exchange offer (the "Exchange Offer")
registered with the Securities and Exchange Commission (the "Commission"), or,
in lieu thereof, if such obligation arises pursuant to the Exchange and
Registration Rights Agreement dated as of April 30, 2002 (the "Exchange and
Registration Rights Agreement"), by and between the Company and the Purchasers
(as defined therein) parties thereto, a registration statement registering this
Note for resale (the "Shelf Registration Statement"), in either case on or
before the date on which such registration statement is required to be filed
pursuant to Section 2(a) or 2(b) of such Exchange and Registration Rights
Agreement, respectively, or (ii) such Exchange Registration Statement or Shelf
Registration Statement has not become effective or been declared effective by
the Commission on or before the date on which such Registration Statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b) of
such Exchange and Registration Rights Agreement, respectively, or (iii) the
Exchange Offer has not been completed within 60 days after the initial effective
date of the Exchange Registration Statement relating to the Exchange Offer (if
the Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by Section 2(a)
or 2(b) of such Exchange and Registration Rights Agreement is filed and declared
effective but shall thereafter either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted in such Agreement) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default" and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then special interest (in addition
to the stated interest on this Note), shall accrue at a per annum rate of 0.25%
for the first 90 days of the Registration Default Period and at a per annum rate
of 0.50% thereafter for the remaining portion of the Registration Default Period
("Special Interest"). Any accrued and unpaid interest (including Special
Interest) on this Note upon the issuance of an Exchange Note (as defined in the
Indenture) in exchange for this Note shall cease to be payable to the Holder
thereof but such accrued and unpaid interest (including Special Interest) shall
be payable on the next Scheduled Payment Date for such Exchange Security to the
Holder thereof on the related Regular Record Date. The interest shall be
calculated on the basis of a 360-day year and the actual number of days elapsed.
A-6
"Three-Month LIBOR" means, for each Interest Period, the rate
for deposits in U.S. dollars for a period of three months, commencing on the
first day of such Interest Period and in an amount that is representative for a
single transaction in that market, at that time, that appears on Bloomberg Page
BBAM as of 11:00 a.m., London time, on the LIBOR Determination Date with respect
to such Interest Period. If such rate does not appear on the Bloomberg Page
BBAM, then Three-Month LIBOR for the relevant Interest Period will be determined
on the basis of the rates at which deposits in U.S. dollars are offered by the
Reference Banks at approximately 11:00 a.m., London time, on the LIBOR
Determination Date with respect to such Interest Period to prime banks in the
London interbank market for a period of three months commencing on the first day
of such Interest Period and in an amount that is representative for a single
transaction in that market at that time, assuming an actual/360 day count basis.
The Calculation Agent shall request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that Interest Period will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that Interest Period will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the Calculation Agent,
at approximately 11:00 a.m., New York City time, on the first day of such
Interest Period for loans in U.S. dollars to leading European banks for a period
of three months commencing on the first day of such Interest Period and in an
amount that is representative for a single transaction in that market at that
time. If the Calculation Agent is unable to obtain rate quotations for such
loans, the rate for that LIBOR Determination Date shall be Three-Month LIBOR as
calculated for the immediately preceding quarterly period. Notwithstanding the
foregoing, "Three-Month LIBOR" with respect to the first Interest Period will be
1.92125%.
Three-Month LIBOR will be determined by the Company, as
Calculation Agent, or any successor calculation agent as determined by the
Company.
The Company shall repay the principal amount of the Series A
Notes in annual installments, commencing on January 21, 2008 and continuing
until the Stated Maturity. The aggregate amount of principal of the Series A
Notes to be repaid in each year shall be as follows (in millions of dollars):
Year Principal Amount Year Principal Amount
----------------- --------------------- ----------- ---------------------
2002 $ 0 2010 $ 26,666,667
2003 0 2011 26,666,667
2004 0 2012 26,666,667
2005 0 2013 26,666,667
2006 0 2014 26,666,667
2007 0 2015 26,666,667
2008 26,666,667 2016 40,000,000
2009 26,666,667 2017 46,666,664
A-7
Each annual scheduled repayment of principal will be made on
January 21 of the relevant year, together with the payment of interest due on
that date, to the person whose name this Note is registered on the Regular
Record Date before the payment date. The final annual scheduled repayment of
interest will be made only against surrender of the Note to the Trustee.
The Notes may be redeemed at the election of the Company, in
whole or in part on any Scheduled Payment Date, at the Regular Redemption Price
(as defined below), payable in cash, together with interest and Liquidated
Damages (if any) accrued to but not including the Redemption Date. The Regular
Redemption Price for the Series A Notes, payable in cash, and expressed as a
percentage of the outstanding principal amount of each Note to be redeemed,
shall equal 103.5% of the outstanding principal amount of such Note if redeemed
on or before April 21, 2003. Thereafter, the Regular Redemption Price shall
decline ratably on a straightline basis to 100% by April 21, 2012 of the
outstanding principal amount of each Note to be redeemed and shall remain
constant thereafter.
Notwithstanding the foregoing paragraph, upon the occurrence
of a Regulatory Redemption Event (as defined below), the Notes may be redeemed
at the election of the Company, as a whole or in part, on any Scheduled Payment
Date, at the Regulatory Redemption Event Redemption Price (as defined below),
payable in cash, together with interest and Liquidated Damages (if any) accrued
to but not including the Redemption Date. The Regulatory Redemption Event
Redemption Price for the Series A Notes, payable in cash, and expressed as a
percentage of the outstanding principal amount of each Note to be redeemed,
shall equal 100% of the outstanding principal amount of such Note.
In each case, payment shall be made together with interest and
Liquidated Damages (if any) accrued to but not including the Redemption Date,
but interest installments and Liquidated Damages (if any) for a Scheduled
Payment Date prior to such Redemption Date will be payable to the Holders of
such Series A Notes, or one or more Predecessor Notes, of record at the close of
business on the relevant Regular Record Dates referred to on the face hereof,
all as provided in the Indenture.
If there occurs (i) a Regulatory Redemption Event or (ii) a
change in New York law or regulation (other than with respect to taxes) after
the Closing Date that materially adversely affects the transferability of the
Collateral, the Company shall provide notice to the Trustee and the Insurer of
such event or change, not more than 15 days following the date on which the law
or regulation giving rise to such event or change is enacted, issued or
promulgated. A Regulatory Redemption Event occurs if there is a change in New
York law or regulation (other than with respect to taxes) that changes the
ability of MONY Life to declare shareholder dividends without regulatory
approval in a manner that materially adversely affects CB Debt Cash Flow. So
long as no Insurer Default has occurred and is continuing, the Insurer will have
the right, exercisable within 60 days following receipt of notice by the Company
of any such change, to require the Company to redeem all of the Notes, at the
Regulatory Redemption Event Redemption Price, payable in cash, together with
interest and Liquidated Damages
A-8
(if any) accrued to but not including the Redemption Date, it being agreed that
the Redemption Date shall be not later than 120 days following receipt by the
Company of written notice of the Insurer's exercise of such right.
In the event of a partial redemption, the amount to be
redeemed will be allocated pro rata as determined by the then outstanding
principal amount among all the Notes Outstanding at the Redemption Date. The
amount to be redeemed that is allocated to the Series A Notes will be further
allocated pro rata as determined by the then outstanding principal amount among
all of the Outstanding Series A Notes.
In the event of a Change of Control, the Insurer, so long as
no Insurer Default has occurred and is continuing, will have the right, within
60 days following its receipt of notice of such Change of Control by the
Company, which notice shall be given within 15 days after the later of (i) the
effective date of the Change of Control or (ii) the date on which the Company
has knowledge of the Change of Control, to notify the Company of its exercise of
the right to require the Company to redeem all of the Notes within 60 days
following receipt of such notice from the Insurer. The Series A Notes will in
this circumstance be redeemed at the Regular Redemption Price, payable in cash,
together with interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date.
Further, upon the sale of all or substantially all of the
assets of the Closed Block Business, the Company will be required to redeem, no
later than the effective date of the sale, all of the Notes. The Series A Notes
will in this circumstance be redeemed at the Regular Redemption Price, payable
in cash, together with interest and Liquidated Damages (if any) accrued to but
not including the Redemption Date.
In the event of redemption of this Series A Note in part only,
a new Series A Note or Notes in Initial Principal Amount equal to and in
exchange for the Remaining Principal Amount of the Note not so redeemed and
surrendered will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Notes are further subject to Defeasance at the election of
the Company, if the Company deposits with the Trustee funds in trust
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Notes, sufficient to pay and discharge the principal and
interest on the Notes through their respective Stated Maturities and Liquidated
Damages.
In the event of the funding of a Defeasance, the Insurance
Policy guaranteeing payment of scheduled principal and interest on the Notes
shall terminate as to all future payments but will remain in effect for all
amounts paid prior to such funding date for the applicable fraudulent transfer
or voidable transfer periods following such funding date.
The Indenture permits the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Notes under the Indenture at any time by the Company and the
Trustee, with the consent of the
A-9
Insurer. For certain material changes to the terms of the Notes, as specified in
the Indenture, the consent of each affected Holder is required.
The Indenture also contains provisions permitting the Holders
of not less than 66 2/3% in outstanding principal amount of the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences (it being understood
that, so long as no Insurer Default has occurred and is continuing, the Insurer
shall have the exclusive right under the Indenture to exercise the rights of the
Holders in determining whether to give any such direction).
Any such consent or waiver shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration or transfer hereof or in exchange herefor (including
through an Exchange Offer) or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, the Regular
Redemption Price or the Regulatory Redemption Event Redemption Price, as the
case may be, and interest on and Liquidated Damages (if any) accrued to but not
including the Redemption Date in respect of this Note at the times, place and
rate, and in the coin and currency, as prescribed in the Indenture; the
enforcement of such obligation of the Company being subject to a limited
recourse provision set forth in Section 6.06 of the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Notes Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate Initial Principal Amount, will be issued to the designated transferee
or transferees.
The Notes are issuable only in fully registered form without
coupons in principal amounts only in denominations of $100,000 and integral
multiples of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Notes of any series are exchangeable
for a like tenor and aggregate Remaining Principal Amount of other Notes of the
same series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
A-10
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
A-11
Exhibit B
FORM OF TRANSFER CERTIFICATE FOR RESTRICTED GLOBAL
NOTE OR RESTRICTED CERTIFICATED NOTE
(for transfers pursuant to Section 3.06(1)
of the Indenture)
Bank One Trust Company, N.A.
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]] of MONY
Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$__________ initial principal
amount of Notes presented or surrendered on the date hereof (the "Surrendered
Notes") which are registered in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such Surrendered Notes
registered in the name of a Person (the "Transferee") other than the Transferor.
In connection with such request and in respect of such
Surrendered Notes, the Transferor does hereby certify that:
A. It is an initial investor who purchased the Notes from the
initial purchasers pursuant to the Purchase Agreement dated
April 24, 2002 among the Company, MONY Life Insurance Company
and the initial purchasers, and that the Surrendered Notes are
being transferred:
1. To a person who the Transferor reasonably believes is
a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act purchasing for its
own account or for the account of a qualified
institutional buyer in a transaction meeting the
requirements of Rule 144A;
2. In an offshore transaction complying with Rule 903 or Rule
904 of Regulation S under the Securities Act; or
3. Pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder.
OR
B. If the Transferor is a subsequent investor, that the
Surrendered Notes are being transferred:
1. Pursuant to 1, 2 or 3 of A above; or
B-1
2. To an institutional investor that is an accredited
investor within the meaning of Rule 501 of Regulation D
under the Securities Act pursuant to an exemption from
registration under the Securities Act.
The Transferor understands that this certificate is required
in connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, the Transferor
irrevocably authorizes you to produce this certificate to any interested party
in such proceeding.
This certificate and the statements contained herein are made
for your benefit, the benefit of the Company and for the benefit of Xxxxxxx,
Xxxxx & Co., Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx
Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Fleet Securities, Inc. as the
initial purchasers of the Notes.
Dated:
________________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:_____________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
B-2
Exhibit C-1
FORM OF CERTIFICATE
FOR TRANSFERS FROM RESTRICTED GLOBAL NOTE
TO TEMPORARY REGULATION S GLOBAL NOTE
(for transfers pursuant to Section 3.07(2)(a)
of the Indenture)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]]
of MONY Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$_____________ aggregate
initial principal amount of Notes which are evidenced by the Restricted Global
Note (CUSIP No. _________; ISIN __________; Common Code __________) and held
with the Depositary in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal aggregate initial principal amount of Notes evidenced by the Temporary
Regulation S Global Note (CUSIP No. __________; ISIN __________; Common Code
__________), which amount, immediately after such transfer, is to be held with
the Depositary through Euroclear or Clearstream or both.
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and
accordingly the Transferor does hereby further certify that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) either:
(i) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the
transferee was outside the United States, or
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with a
buyer in the United States;
(c) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
C-1-1
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) upon completion of the transaction, the beneficial interest
being transferred as described above was held with the
Depositary through Euroclear or Clearstream or both.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made
for your benefit, the benefit of the Company and for the benefit of Xxxxxxx,
Sachs & Co, Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx
Securities Inc., Xxxxxxx Xxxxx Barney Inc. and Fleet Securities, Inc. as the
initial purchasers of the Notes.
Dated:
________________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:_____________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
C-1-2
Exhibit C-2
FORM OF CERTIFICATE FOR TRANSFERS FROM
RESTRICTED GLOBAL NOTE TO
REGULATION S GLOBAL NOTE
(for transfers pursuant to Section 3.07(2)(b)
of the Indenture)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]]
of MONY Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$_____________ aggregate
initial principal amount of Notes which are evidenced by the Restricted Global
Note (CUSIP No. _________; ISIN __________; Common Code __________) and held
with the Depositary in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal aggregate initial principal amount of Notes evidenced by the Regulation
S Global Note (CUSIP No. __________; ISIN __________; Common Code __________).
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that:
(a) with respect to transfers made in reliance on Regulation S
under the Securities Act:
(i) the offer of the Notes was not made to a person in the
United States;
(ii) either:
1) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the transferee was outside
the United States, or
2) the transaction was executed in, on or through the
facilities of a designated offshore securities
market and neither the Transferor nor any person
acting on its behalf knows that the transaction was
prearranged with a buyer in the United States;
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; or
C-2-1
(b) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made
for your benefit, the benefit of the Company and for the benefit of Xxxxxxx,
Xxxxx & Co., Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx
Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Fleet Securities, Inc. as the
initial purchasers of the Notes.
Dated:
________________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:_____________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
C-2-2
Exhibit C-3
FORM OF CERTIFICATE FOR TRANSFERS FROM
TEMPORARY REGULATION S GLOBAL NOTE OR
REGULATION S GLOBAL NOTE TO RESTRICTED
GLOBAL NOTE
(for transfers pursuant to Section 3.07(2)(c)
of the Indenture)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]]
of MONY Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$_________________ aggregate
initial principal amount of Notes which are evidenced by the Temporary
Regulation S Global Note or the Regulation S Global Note (CUSIP No. __________;
ISIN __________; Common Code __________) and held with the Depositary through
Euroclear or Clearstream or both in the name of [insert name of transferor] (the
"Transferor") during the Restricted Period. The Transferor has requested a
transfer of such beneficial interest in the Notes to a Person that will take
delivery thereof in the form of an equal initial principal amount of Notes
evidenced by the Restricted Global Note (CUSIP No. _________; ISIN __________;
Common Code __________).
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 144A under the Securities Act and accordingly the
Transferor does hereby further certify that the Notes are being transferred to a
person that the Transferor reasonably believes is purchasing the Notes for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A and the Notes
have been transferred in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
C-3-1
This certificate and the statements contained herein are made
for your benefit, the benefit of the Company and for the benefit of Xxxxxxx,
Xxxxx & Co., Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx
Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Fleet Securities, Inc. as the
initial purchasers of the Notes.
Dated:
________________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:_____________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
C-3-2
Exhibit C-4
FORM OF CERTIFICATE FOR TRANSFERS FROM
RESTRICTED CERTIFICATED NOTE TO
RESTRICTED GLOBAL NOTE
(for transfers pursuant to Section 3.07(2)(d)
of the Indenture)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]] of MONY
Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to $_____________ aggregate initial
principal amount of Notes held in definitive form (CUSIP No. _______; ISIN
__________; Common Code __________) by [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such Notes to a Person
that will take delivery in the form of an equal initial principal amount of
Notes evidenced by the Restricted Global Note (CUSIP No. ___________; ISIN
__________; Common Code __________).
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 144A under the Securities Act and accordingly the
Transferor does hereby further certify that the Notes are being transferred to a
person that the Transferor reasonably believes is purchasing the Notes for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A and the Notes
have been transferred in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
C-4-1
This certificate and the statements contained herein are made for your
benefit, the benefit of the Company and for the benefit of Xxxxxxx, Sachs & Co.,
Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx Securities
Inc., Xxxxxxx Xxxxx Barney Inc. and Fleet Securities, Inc. as the initial
purchasers of the Notes.
Dated:
___________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
C-4-2
Exhibit C-5
FORM OF CERTIFICATE FOR TRANSFERS FROM
RESTRICTED CERTIFICATED NOTE
TO REGULATION S GLOBAL NOTE
(for transfers pursuant to Section 3.07(2)(d)
of the Indenture)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]] of MONY
Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to $____________ aggregate initial
principal amount of Notes held in definitive form (CUSIP No. _____; ISIN
__________; Common Code __________) by [insert name of transferor] (the
"Transferor"). The Transferor has requested an exchange or transfer of such
Notes to a Person that will take delivery in the form of an equal initial
principal amount of Notes evidenced by the Regulation S Global Note (CUSIP No.
___________; ISIN __________; Common Code __________).
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with (a) Rule 903 or Rule 904 under the Securities Act, as
amended, or (b) Rule 144 under the Securities Act, and accordingly the
Transferor does hereby further certify that:
(a) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(i) the offer of the Notes was not made to a person in
the United States;
(ii) either:
1) at the time the buy order was originated,
the transferee was outside the United States
or the Transferor and any person acting on
its behalf reasonably believed that the
transferee was outside the United States, or
2) the transaction was executed in, on or
through the facilities of a designated
offshore securities market and neither the
Transferor nor any person acting on its
behalf knows that the transaction was
prearranged with a buyer in the United
States;
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable;
C-5-1
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act; and
(v) if such transfer is to occur during the Restricted
Period, upon completion of the transaction, the
beneficial interest being transferred as described
above was held with the Depositary through Euroclear
or Clearstream; or
(b) if the transfer has been effected pursuant to Rule 144:
(i) more than two years has elapsed since the date of the
closing of the initial placement of the Notes
pursuant to the Purchase Agreement, dated April 24,
2002, between the Company and the representatives of
the several purchasers named therein; and
(ii) the Notes have been transferred in a transaction
permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made
for your benefit, the benefit of the Company and for the benefit of Xxxxxxx,
Xxxxx & Co., Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx
Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Fleet Securities, Inc. as the
initial purchasers of the Notes.
Dated:
___________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
C-5-2
Exhibit C-6
FORM OF CERTIFICATE FOR TRANSFERS FROM
RESTRICTED CERTIFICATED NOTE
TO TEMPORARY REGULATION S GLOBAL NOTE
(for transfers pursuant to Section 3.07(2)(d)
of the Indenture)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]] of MONY
Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act") are used herein as so defined.
This certificate relates to $____________ aggregate initial
principal amount of Notes held in definitive form (CUSIP No. _____; ISIN
__________; Common Code __________) by [insert name of transferor] (the
"Transferor"). The Transferor has requested an exchange or transfer of such
Notes to a Person that will take delivery in the form of an equal initial
principal amount of Notes evidenced by the Temporary Regulation S Global Note
(CUSIP No. ___________; ISIN __________; Common Code __________).
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with (a) Rule 903 or Rule 904 under the Securities Act, or
(b) Rule 144 under the Securities Act, and accordingly the Transferor does
hereby further certify that:
(a) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(i) the offer of the Notes was not made to a person in
the United States;
(ii) either:
1) at the time the buy order was originated,
the transferee was outside the United States
or the Transferor and any person acting on
its behalf reasonably believed that the
transferee was outside the United States, or
2) the transaction was executed in, on or
through the facilities of a designated
offshore securities market and neither the
Transferor nor any person acting on its
behalf knows that the transaction was
prearranged with a buyer in the United
States;
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act; and
(v) if such transfer is to occur during the Restricted
Period, upon completion of the transaction, the
beneficial interest being transferred as described
above was held with the Depositary through Euroclear
or Clearstream; or
(b) if the transfer has been effected pursuant to Rule 144:
(i) more than two years has elapsed since the date of the
closing of the initial placement of the Notes
pursuant to the Purchase Agreement, dated April 24,
2002, between the Company and the representatives of
the several purchasers named therein; and
(ii) the Notes have been transferred in a transaction
permitted by Rule 144 and made in accordance with any
applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made
for your benefit, the benefit of the Company and for the benefit of Xxxxxxx,
Sachs & Co., Advest, Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx
Securities Inc., Xxxxxxx Xxxxx Barney Inc. and Fleet Securities, Inc. as the
initial purchasers of the Notes.
Dated:
___________________________
(Print the name of the
Transferor, as such term is
defined in the second
paragraph of this
certificate.)
By:________________________
Name:
Title:
(If the Transferor is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Transferor must be
stated.)
C-6-2
Exhibit C-7
FORM OF CERTIFICATE TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S
GLOBAL SECURITY TO EUROCLEAR OR CLEARSTREAM
(Owner Securities Certification)
[Euroclear S.A./N.V.] [or] [Clearstream
International, societe anonyme]
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]] of MONY
Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC (the "Company"), Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This certificate relates to U.S.$_________________ initial
principal amount of Notes which are evidenced by the Temporary Regulation S
Global Note (CUSIP No. _________; ISIN __________; Common Code __________) and
held with the Depositary through Euroclear or Clearstream or both in the name of
[insert name of beneficial owner] (the "Holder").
In respect of such Notes, the Holder hereby certifies that as
of the date hereof, the above-captioned Notes are beneficially owned by non-U.S.
Persons and are not held for purposes of resale directly or indirectly to a U.S.
Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America, its territories and possessions, any state of the United States, and
the District of Columbia. As used herein, U.S. Person has the meaning assigned
to it in Rule 902 under the Securities Act of 1933, as amended.
We undertake to advise you immediately by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Notes held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certification is required in
connection with certain securities laws in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your
C-7-1
benefit, the benefit of the Company and The MONY Group Inc. and for the benefit
of Xxxxxxx, Xxxxx & Co Advest, Inc., Credit Suisse First Boston Corporation,
X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Fleet Securities,
Inc. as the initial purchasers of the Notes.
Dated:
___________________________
(Print the name of the
Holder, as such term is
defined in the second
paragraph of this
certificate.)
By:________________________
Name:
Title:
(If the Holder is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Holder must be stated.)
C-7-2
Exhibit C-8
FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY
AFTER THE RESTRICTED PERIOD
(Transferee Securities Certification)
[Euroclear S.A./N.V.] [or] [Clearstream
International, societe anonyme]
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]] of MONY
Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC, as Issuer, Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the
Temporary Regulation S Global Note, the undersigned certifies that it is not a
U.S. Person as defined by Regulation S under the Securities Act of 1933, as
amended.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Notes held by you in which we intend to acquire a beneficial interest in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
We understand that this certification is required in
connection with certain securities laws in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit, the benefit of the Company and The MONY Group Inc. and for the
benefit of Xxxxxxx, Sachs & Co., Advest, Inc., Credit Suisse First Boston
Corporation, X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Barney Inc. and Fleet
Securities, Inc. as the initial purchasers of the Notes.
Dated:
By:________________________________
As, or as agent for, the beneficial
acquiror of the Notes to which this
certificate relates.
C-8-1
Exhibit C-9
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CLEARSTREAM,
SOCIETE ANONYME
(Depositary Securities Certification)
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: [Insert as applicable--
[Series A Floating Rate Insured Notes due 2017]]
of MONY Holdings, LLC (the "Notes")
Reference is made to the Indenture, dated as of April 30, 2002
(the "Indenture"), among MONY Holdings, LLC, as Issuer, Ambac Assurance
Corporation, The MONY Group Inc., solely for the limited purposes set forth
therein, and Bank One Trust Company, N.A., as Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, as of the date hereof,
$__________ aggregate principal amount of the above-captioned Notes are
beneficially owned by non-U.S. Persons and are not held for purposes of resale
directly or indirectly to a U.S. Person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of
America, its territories and possessions, any state of the United States, and
the District of Columbia. As used herein, U.S. Person has the meaning assigned
to it in Rule 902 under the Securities Act of 1933, as amended.
We further certify (i) that we are not making available
herewith for exchange any portion of the Temporary Regulation S Global Note
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain securities laws in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit, the benefit of the Company and The MONY Group Inc. and for the
benefit of Xxxxxxx, Xxxxx & Co., Advest, Inc., Credit Suisse First Boston
Corporation, X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Fleet
Securities, Inc. as the initial purchasers of the Notes.
Dated:
By:_________________________________________
[Euroclear S.A./N.V.] [or] [Clearstream
Banking, societe anonyme]
C-9-1
Exhibit D
Investment Policy Statement on the Surplus and Related Assets Portfolio
Investment Policy for the Surplus and Related Assets Portfolio
Investments of the Surplus and Related Assets (and the Additional
Reserve Account) will be undertaken pursuant to the following policy provisions.
The goal of the following policy provisions is to obtain a high level of income
while providing reasonable safety of capital. Except as noted below, investment
restrictions will apply at the time of purchase of assets and will be calculated
on a statutory book value basis. The statutory book value basis will be
determined based on the immediately preceding month-end invested asset balance.
The investment policy for the Surplus and Related Assets may be amended from
time to time with the consent of Ambac, but without the consent of the
noteholders.
Permitted Investments
The Surplus and Related Assets may be invested in:
(i) public or private fixed income investments including, but not
limited to, fixed and floating rate investments, commercial and agricultural
mortgages (including those below investment grade mortgage assets classified
within MONY Life as "mezzanine lending"), bank loans, derivatives, and
short-term debt instruments with a remaining maturity of one year or less, and
shares of certain open-ended funds that:
. invest primarily in short-term debt instruments,
. meet the conditions of paragraphs (c)(2), (c)(3) and (c)(4) of
Rule 2a-7 under the Investment Company Act, and
. are issued by an investment company registered under the
Investment Company Act or by an exempt issuer; and
(ii) equities, including private equity investments, venture capital
investments, equity-linked securities, real estate equities and funds which
invest in the same.
Portfolio Quality
At least 85% of invested assets of the Surplus and Related Assets
portfolio will be investment grade assets (which we refer to as Investment Grade
Assets). For this purpose, assets with two ratings from nationally recognized
statistical rating organizations (which we refer to as an NRSRO) which are split
between investment grade and below investment grade will be evenly divided, with
one-half being included in the investment grade category and one-half in the
below-investment grade category. The remainder of the Surplus and Related Assets
portfolio, up to a limit of 15%, may be invested in other assets (which we refer
to as Other Assets), a category which includes fixed income investments with
minimum ratings of B1 or B+, commercial mortgages with minimum MONY Life
internal ratings of 3, agricultural mortgages with MONY Life internal minimum
ratings of 3, mezzanine loans and equities. Mezzanine loans and equities will
each be further limited to 5% of invested assets. If the Surplus and Related
Assets portfolio holdings of Other Assets, mezzanine loans or equities exceed
these limits, MONY Life will cease acquiring additional Other Assets, mezzanine
loans or equities within the Surplus and Related Assets portfolio and attempt to
return to this limit. MONY Life may, however, hold Other Assets, mezzanine loans
or equities in excess of this limit until valuation and opportunities for sale
provide good value.
Ratings compliance will be determined by reference to an NRSRO,
Dominion Bond Rating Service or Canadian Bond Rating Service ratings in the case
of public bonds and by such ratings for private placements where available. If
such ratings are not available, ratings compliance will be determined by
reference to internal MONY
Life ratings, unless the designation assigned by the Securities
Valuation Office of the NAIC implies a lower rating, in which case the NAIC
ratings will be used. For commercial and agricultural mortgages, internal MONY
Life ratings will be used.
Diversification
The Surplus and Related Assets may be invested without limit in debt
obligations issued or guaranteed by the U.S. Government and U.S.
Government-related entities. Investments in a single issuer, other than U.S.
Government and government-related issuers, are limited to the lesser of (i) 4%
of invested assets of the Surplus and Related Assets portfolio or (ii) $40
million, except with respect to Other Assets, for which the limit will be 1.5%
for any single issuer.
The fixed income assets rated by the NAIC of the Surplus and Related
Assets portfolio shall also be limited to the following securities industry
category limits as further defined herein by MONY Holdings in Appendix A to this
document:
US Government Unlimited
Asset Backed 15.0%
Communications 10.0%
Finance 20.0%
Manufacturing 35.0%
Mining 5.0%
Miscellaneous 15.0%
Mortgage Backed 20.0%
Oil and Gas 10.0%
Retail and Wholesale Trade 10.0%
Services 10.0%
Transportation 15.0%
Utilities 15.0%
The Manufacturing category will be managed to include diversification
across the industries which comprise the category.
Liquidity
The Surplus and Related Assets portfolio may use borrowing to enhance
liquidity, for purposes including, but not limited to, allowing cash to be
raised without selling assets at a disadvantageous time. Borrowing (excluding
securities lending and dollar roll activity) is limited to no more than 10% of
the portfolio, with a maximum maturity of one year. Investments in commercial
and agricultural mortgages are limited to no more than 20% of invested assets of
the Surplus and Related Assets portfolio. Non-public fixed income investments
are limited to no more than 60% of invested assets of the portfolio.
Foreign Securities
The Surplus and Related Assets portfolio may purchase foreign
securities; provided that they are payable in U.S. dollars or substantially
hedged to the U.S. dollar. Foreign securities payable in a currency other than
U.S. dollars are limited to no more than 10% of invested assets of the
portfolio. If any country's foreign currency debt ratings are lower than Aa3 by
Xxxxx'x or AA- by Standard and Poor's, then such securities of such country
shall be included as Other Assets, regardless of the ratings of the securities.
D-2
Derivatives
The Surplus and Related Assets portfolio may purchase derivatives
(including foreign exchange contracts, forward contracts, futures contracts,
hedge agreements and interest rate, credit and other over-the-counter swaps)
pursuant to MONY Life's Derivative Use Plan as filed with the New York State
Insurance Department. The fair market value of net exposure from derivatives
will not exceed 5% of invested assets. If the Surplus and Related Assets
portfolio holdings of derivatives exceeds this limit, MONY Life will cease
adding additional derivatives to the Surplus and Related Assets portfolio and
attempt to return to this limit, but may hold derivatives in excess of this
limit until valuation and opportunities for sale provide good value.
Transactions With Affiliates
All transactions related to investment management or asset sales and
purchases between MONY Life, MONY Holdings or MONY Group and their affiliates,
for the purposes of this document, shall be on an arms-length basis.
Securities Lending and Other Activities
Dollar rolls, repurchase agreements and securities lending activities
are permitted in the Surplus and Related Assets portfolio; provided that the
maximum term does not exceed one year and that such activities are only
transacted with counterparties whose senior unsecured securities are rated equal
to or higher than A1 from Xxxxx'x and A+ from Standard and Poor's. Cash proceeds
of securities lending are to be reinvested in either a Rule 2a-7 money market
fund as defined below or any pooled or cash accounts along with the rest of MONY
Life's securities lending proceeds.
MONY Life will notify Ambac of changes in the investment policy
relating to securities lending activity and seek Ambac's consent, which consent
shall not be unreasonably withheld. In the event that Ambac does not consent to
any such changes, the proceeds of securities lending activity will be reinvested
in compliance with any existing policy or in a Rule 2a-7 money market fund under
the Investment Company Act of 1940, as amended (which we refer to as the
Investment Company Act). A Rule 2a-7 money market fund is an open-end fund that:
(i) invests primarily in short-term instruments,
(ii) meets the conditions of paragraphs (c)(2), (c)(3) and
(c)(4) of Rule 2a-7 under the Investment Company Act,
and
(iii) the shares of which are issued by an investment
company registered under the Investment Company Act
in compliance with any existing policy or by an
exempt issuer.
Other Investments
The Surplus and Related Assets portfolio is permitted to invest in
equities and mezzanine loans; provided that the total value of equities and
mezzanine loans each shall not initially exceed 5% of invested assets of the
Surplus and Related Asset portfolio. If the value exceeds 5%, the portfolio will
dispose of any such mezzanine loan or equity when valuation and opportunities
for sale provide good value. In addition, without regard to these limits, the
Surplus and Related Assets portfolio will be permitted to (1) accept common
stock, convertible bonds, real estate equities and other equity interests as
part of restructurings and (2) convert warrants into common stock. If, however,
such acquisition either occurs when equities exceed 5% of invested assets or
otherwise causes equities to exceed 5% of invested assets, then the portfolio
will dispose of any such equity interests when valuation and opportunities for
sale provide good value.
Other than as specifically stated herein, the Surplus and Related
Assets portfolio will not invest in separate accounts, MONY Life subsidiaries or
affiliates.
Duration
The target duration for the Surplus and Related Assets portfolio
initially is 5 years and may be modified by MONY Life from time to time as the
duration of the liabilities supported by the portfolio changes. Any
D-3
modifications to the target duration will take into account any
scheduled interest and principal due and any swap payments associated with the
notes. The portfolio's actual duration will remain within plus or minus 2 years
of the target duration set by MONY Life. MONY Life will notify the trustee and
Ambac on behalf of the noteholders of any subsequent changes in the target
duration of the portfolio and seek Ambac's consent, which consent shall not be
unreasonable withheld.
Asset Manager Selection
Assets will be managed by one or more affiliates of MONY Group or third
party investment managers for a negotiated, market-based fee at the discretion
of MONY Life.
D-4
Appendix A- Security Industry Category Definitions
Security industry categories shall be defined by MONY Holdings as
follows.
US GOVERNMENT
GOVERNMENT & STATE AGENCY
US GOVERNMENT AGENCY ISSUED/GUARANTEED
US GOVERNMENT DIRECT OBLIGATIONS
ASSET-BACKED SECURITIES
ASSET BACKED AUTO
ASSET BACKED CBO/CLO
ASSET BACKED CREDIT CARDS
ASSET BACKED COMMERCIAL MBS
ASSET BACKED FRANCHISEE RECEIVABLES
ASSET BACKED HOME EQUITY
ASSET BACKED MANUFACTURED HOUSING
ASSET BACKED MANUFACTURED HOUSING
ASSET BACKED MISCELLANEOUS
ASSET BACK RATE REDUCTION
ASSET BACKED STUDENT LOANS
COMMUNICATIONS
BROADCASTING
CABLE TELEVISION
TELEPHONE & TELEGRAPH
FINANCE
BANKS
BANK HOLDING COMPANIES
BROKERAGE/MERCHANT BANKING
FINANCE COMPANIES
INSURANCE LIFE & HEALTH
LEASING
MISCELLANEOUS FINANCE
REAL ESTATE
MANUFACTURING
AEROSPACE & MILITARY TECHNOLOGY
AUTO
BREWING & DISTILLING
BUILDING MATERIALS & COMPONENTS
CHEMICALS
COMPUTERS, ELECTRONICS & OFFICE PRODUCTS
CONTAINERS & PACKAGING
DRUGS AND COSMETICS
FOOD & FOOD PROCESSING
HOUSEHOLD PRODUCTS
LUMBER & WOOD PRODUCTS
MACHINERY & EQUIPMENT
MISCELLANEOUS MANUFACTURING
NEWSPAPERS & MAGAZINES
PAPER
PRINTING
PUBLISHING
D-5
STEEL AND IRON
TEXTILES & APPAREL
TRANSPORTATION EQUIPMENT
MINING
METALS - NONFERROUS
MISCELLANEOUS
CANDIAN GOVERNMENT AGENCY ISSUED/GUAR
CANADIAN GOVERNMENT PROVINCIAL
FOREIGN GOVERNMENT STATES/TERR/POSSESS
HOUSING
INTERNATIONAL BANK FOR RECONST & DEVELOP
OTHER
MORTGAGE-BACKED SECURITIES
MBS- FED HOME LN MTG CORP CMO
MBS- FED NATL MTG ASSOC CMO
MBS- GOVT NATL MTG ASSOC CMO
MBS CMO NON AGENCY
MBS- FED HOME LN MTG CORP PASS THRU
MBS- FED NATL MTG ASSOC PASS THRU
MBS- GOVT NATL MTG ASSOC PASS THRU
OIL & GAS
CONTRACT DRILLING
COAL
INTEGRATED PETROLEUM
OIL & GAS PRODUCTION
OTHER ENERGY
PIPELINES (NON-GAS)
REFINING & MARKETING
RETAIL & WHOLESALE TRADE
DISTRIBUTION
LPG DISTRIBUTION
RETAIL TRADE
RESTAURANTS
SERVICES
HEALTH SERVICES
LEISURE TIME
LODGING
SERVICE COMPANIES
TRANSPORTATION
AIR TRANSPORTATION
RAILROADS
SHIPPING
TRUCKING
UTILITIES
ELECTRIC LIGHT & POWER HOLDING CO
ELECTIC LIGHT & POWER
GAS TRANSMISSION AND DISTRIBUTION
INDEPENDENT POWER
If any additional assets are purchased in accordance with the Investment Policy
for the Surplus and Related Assets Portfolio, then such asset will be classified
in one of the categories listed above. If such security can not be
D-6
classified by any of the categories above, then the security will be classified
in the Miscellaneous category as Other. To the extent that the Miscellaneous
category reaches its limit of 15% then at that time a new category shall be
defined, with the consent of Ambac.
D-7
Exhibit E
Investment Policy Statement for the Debt Service Coverage Account
Investment Policy for the Debt Service Coverage Account of MONY Holdings
Investments of the assets in the Debt Service Coverage Account will be
undertaken pursuant to the following policy provisions. The goal of these policy
provisions is to obtain reasonable income while providing liquidity and a high
level of safety of capital. To accomplish these objectives the policy provisions
provide for investing in investment grade, fixed income securities. Investment
restrictions will apply at the time of purchase of assets and will be calculated
on a GAAP book value basis. The determination of the GAAP book value basis will
be based on the immediately preceding month-end portfolio balance. The
investment policy statement for the assets in the Debt Service Coverage Account
may be amended from time to time with the consent of Ambac, but without the
consent of the noteholders.
Permissible Investments
Permissible investments include the asset types listed below.
Investment Grade Securities
The Debt Service Coverage Account may purchase public fixed income
securities with a rating at the time of purchase of at least A2 by Xxxxx'x and A
by Standard and Poor's (hereinafter called the Minimum Credit Quality Limit) or,
if a rating is unavailable from one of these agencies, an equivalent rating from
an NRSRO. In addition, the account may purchase:
(i) fixed income securities with a maturity of one year
or less if they have a rating of at least A-1 or
P-1; and
(ii) shares of open-end funds that:
. invest primarily in short-term debt
instruments,
. meet the conditions of paragraphs (c)(2),
(c)(3) and (c)(4) of Rule 2a-7 under the
Investment Company Act, and
. are issued by an investment company
registered under the Investment Company Act
or by an exempt issuer.
Securities Rated Below the Minimum Credit Quality Limit
Securities that do not satisfy the Minimum Credit Quality Limit at the
time of purchase may not be purchased by the Debt Service Coverage Account.
However, the Debt Service Coverage Account may hold securities below the Minimum
Credit Quality Limit as a result of downgrades that may occur from time to time.
If those securities are downgraded below A3 by Xxxxx'x or A- by Standard &
Poor's, then we must divest the downgraded securities within six months from the
initial date of downgrade. We may hold such downgraded securities for longer
than six months with the consent of Ambac.
Maximum Maturity
The Debt Service Coverage Account may not purchase securities with a
remaining maturity in excess of five years from the date of purchase. The
maturity profile of invested assets will take into account anticipated
withdrawals from the Debt Service Coverage Account.
Single Issuer Limits
The Debt Service Coverage Account may invest without limitation in debt
obligations issued or guaranteed by the U.S. Government and U.S.
Government-related entities. Maximum permitted debt exposure to any other single
issuer may not exceed 3% of the amount of the Debt Service Coverage Account.
Separate Accounts
No transactions may be effected with separate accounts sponsored by
MONY Life or MONY Group or any of its affiliates.
Transactions With Affiliates
All transactions related to investment management or asset sales and
purchases between MONY Life, MONY Holdings or MONY Group and their affiliates,
for the purposes of this document, shall be on an arms-length basis.
Asset Manager Selection
Assets will be managed by one or more affiliates of MONY Group or third
party investment managers for a negotiated, market-based fee at the discretion
of the Company.
E-2
Exhibit F
Closed Block Business Administrative Payments
To be paid annually from the Closed Block Business (but not the Closed Block)
within MONY Life to the Ongoing Businesses within MONY Life:
$60 Per Policy (which for these purposes as a separate Policy includes, but is
not limited to, each traditional participating individual life insurance policy,
joint and last survivor whole life policy, term life insurance policy,
retirement annuity contract, policy or contract in ETI or RPU status, paid-up
policy, rider or contract, and supplementary benefit, rider or contract) plus
12% of annual Policy Premium
Per Policy (which for these purposes as a separate Policy includes, but is not
limited to, each traditional participating individual life insurance policy,
joint and last survivor whole life policy, term life insurance policy,
retirement annuity contract, policy or contract in ETI or RPU status, paid-up
policy, rider or contract, and supplementary benefit, rider or contract) expense
factor to increase by 3% on an annual basis.
F-1
Exhibit G
Expenses of the Company Attributable to the Closed Block Business to be Paid
from the Debt Service Coverage Account
[in $ per annum]
Bank fees
Trustee/Issuing and Paying Agent
Accounting Services chargeback
Rating Agency Fee expenses
Administrative services expenses
Audit Fees
Legal fees and chargebacks Estimated Total: $____
Such expenses will not exceed $250,000 in 2002, such limit to be increased by 5%
per annum. This limit is not applicable to investment management-related or
Swap-related expenses associated with the DSCA-Subaccount CBB or to
Administrative Payments incurred as set forth in Exhibit F.
G-1
Exhibit H
Schedule of Projected Closed Block Asset/Liabilities Ratios
for the Closed Block Within MONY Life
At December 31, Asset/Liabilities Ratio
--------------------- -----------------------------
2002 0.8041
2003 0.8124
2004 0.8201
2005 0.8272
2006 0.8337
2007 0.8396
2008 0.8451
2009 0.8500
2010 0.8545
2011 0.8587
2012 0.8625
2013 0.8661
2014 0.8695
2015 0.8727
2016 0.8756
2017 0.8783
Exhibit I
[Form of Statement of Account]
[Letterhead of U.S. Bank]
MONY Holdings, LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Director, Structured Finance
and Credit Derivatives
[DATE]
Pursuant to Section 4.06(1) of the Indenture among MONY
Holdings, LLC ("MONY Holdings"), Ambac Assurance Corporation, The MONY Group
Inc., solely for the limited purposes set forth therein, and Bank One Trust
Company, N.A., as Trustee, dated as of April 30, 2002 (the "Indenture"), we
hereby inform you of the balance of the Debt Service Coverage Account as of
__________________, 20___, and of the withdrawals and payments made for the
period between __________________, 20___, and _____________________, 20___.
Capitalized terms used herein and not otherwise defined shall
have the meaning specified in the Indenture.
I. Balance
(1) Balance of Debt Service Coverage Account.
---------------------------------------------------------------------------------------------------
DSCA - Subaccount DSCA - Subaccount DSCA - Debt Service
CBB OB Subaccount OB Coverage Account
(Deposit) Total
---------------------------------------------------------------------------------------------------
Cash
---------------------------------------------------------------------------------------------------
Non-Cash/1/
---------------------------------------------------------------------------------------------------
II. Non-Cash Assets Liquidated Pursuant to Section 4.05(3) of the Indenture
-------------------------------------------------------------
Date Description/2/ Proceeds
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
_______________________________
/1/ The title and principal amount of each non-Cash asset to be listed.
/2/ As provided by Company to Trustee pursuant to Section 4.04(2).
III. Withdrawals and Payments
Amount withdrawn from
----------------------------------------------------------------------------------------------------------------------
Category Section in Date DSCA - DSCA DSCA
Indenture Subaccount Subaccount Subaccount
CBB OB OB (Deposit)
1. Tax Payments 4.05(1) (a)
2. Third-Party Costs 4.05(1) (b)
3. Ongoing Expenses CBB 4.05(1) (c), (j)
4. Amounts due under Swap 4.05(1) (d)
5. Premium 4.05(1) (e)
6. Reimbursement Amounts 4.05(1) (f)
7. Interest 4.05(1) (g)
8. Liquidated Damages 4.05(1) (h)
9. Principal 4.05(1) (i)
10. Termination of Swaps 4.05(1) (k)
11. Inter-Business Loans 4.05(1) (l)
12. Excess Funds 4.05(1) (m)
----------------------------------------------------------------------------------------------------------------------
IV. Deposit and Use of Funds in the Escrow Account
(1) Funds deposited in accordance with Section 4.10(1) in the Escrow Account
--------------------------------------------------------------
Date of Deposit Amount Deposited By
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(2) Use of funds in the Escrow Account
--------------------------------------------------------------
Date of Deposit Amount Recipient
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
V. Specification of Payments Made
(1) Tax Payments made in accordance with Section 4.05(1)(a) of the Indenture
------------------------------------------------------------------------------------------------------
Date Amount Description of Recipient Account
Payment/3/
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
_________________________________
/3/ As proveded by Company to Trustee in Notice of Due Tax Payment.
I-2
(2) Third-party out-of-pocket costs paid in accordance with Section 4.05(1)(b)
of the Indenture
------------------------------------------------------------------------------------------------------
Date Amount Description/4/ Recipient Account
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
(3) Ongoing Expenses of MONY Holdings attributable to the Closed Block
Business paid in accordance with Section 4.05(1)(c) and (j) of the
Indenture
----------------------------------------------------------------------------------
Date Amount Description/4/ Account
----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
(4) Amounts paid under the Swaps in accordance with Section 4.05(1)(d) of the
Indenture
--------------------------------------------------------------
Date Amount Account
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(5) Premium paid to Insurer pursuant to the Insurance and Indemnity Agreement
in accordance with Section 4.05(1)(e) of the Indenture
--------------------------------------------------------------
Date Amount Account
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(6) Amounts paid by the Company pay, reimburse, indemnify or repay the Insurer
pursuant to the Insurance and Indemnity Agreement in accordance with
Section 4.05(1)(f) of the Indenture
--------------------------------------------------------------
Date Amount Account
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(7) Interest payments on the Notes in accordance with Section 4.05(1)(g) of
the Indenture
--------------------------------------------------------------
Date Amount Account
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
__________________________________
/4/ As provided by Company to Trustee in Notice of Due Payments.
I-3
(8) Payments of liquidated damages to Holders (including interest if provided)
in accordance with Section 4.05(1)(h) of the Indenture
--------------------------------------------------------------
Date Amount Account
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(9) Payments of principal of the Notes in accordance with Section 4.05(1)(i)
of the Indenture
--------------------------------------------------------------
Date Amount Recipient
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(10) Termination payments associated with the Swaps paid in accordance with
Section 4.05(1)(k) of the Indenture
--------------------------------------------------------------
Date Amount Recipient
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(11) Repayment of any Inter-Business Loan in accordance with Section 4.05(1)(l)
of the Indenture
--------------------------------------------------------------
Date Amount Recipient
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(12) Release of any excess funds to the Ongoing Business in accordance with
Section 4.05(1)(m) of the Indenture
--------------------------------------------------------------
Date Amount Recipient
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
VI. Inter-Business Loans pursuant to Section 4.07 of the Indenture
(1) Loans from DSCA-Subaccount OB to DSCA-Subaccount CBB
===========================================================================================
Date of Loan Amount Outstanding Interest Total Due
-------------------------------------------------------------------------------------------
===========================================================================================
(2) Loans from DSCA-Subaccount OB (Deposit) to DSCA-Subaccount CBB
I-4
=============================================================================================
Date of Loan Amount Outstanding Interest Total Due
---------------------------------------------------------------------------------------------
=============================================================================================
(3) Inter-Business Loans Outstanding
=============================================================================================
Date DSCA - DSCA Total
Subaccount OB Subaccount OB
(Deposit)
---------------------------------------------------------------------------------------------
=============================================================================================
(4) Repaid Inter-Business Loans
============================================
Date of Repayment Interest
--------------------------------------------
============================================
VII. Subaccount OB Deposits Pursuant to Section 4.08 of the Indenture
=============================================
Date Amount
---------------------------------------------
=============================================
BANK ONE TRUST COMPANY, N.A.
By:_____________________________
Name:
Title:
I-5
Exhibit J
[Form of Notice of Due Payments]
[Letterhead of MONY Holdings, LLC]
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
[DATE]
Pursuant to Section 4.04(1) of the Indenture among MONY
Holdings, LLC ("MONY Holdings"), Ambac Assurance Corporation, The MONY Group
Inc., solely for the limited purposes set forth therein, and you, as Trustee,
dated as of April 30, 2002 (the "Indenture"), we hereby advise you that the
following withdrawals and payments in the amounts specified below shall be made
from the Debt Service Coverage Account in accordance with Section 4.05 of the
Indenture, on ______________________, 20___:
(1) Third-party out-of-pocket costs incurred by MONY Holdings in
accordance with Section 4.04(1)(a)(i) of the Indenture:
=====================================================================
Specification Amount Payable To
---------------------------------------------------------------------
=====================================================================
(2) Fees and expenses of the Trustee with respect to the Notes
and the trust in accordance with Section 4.04(1)(a)(ii) of the Indenture:
=================================================
Specification Amount
-------------------------------------------------
=================================================
(3) Ongoing expenses of MONY Holdings attributable to the Closed
Block Business in accordance with Section 4.04(1)(b) of the Indenture:
=====================================================================
Specification Amount Payable To
---------------------------------------------------------------------
=====================================================================
(4) Net amounts due under the Swaps by the Company in accordance
with Section 4.04(1)(c) of the Indenture:
=======================================================================
Specification Amount Payable To
-----------------------------------------------------------------------
=======================================================================
(5) Amounts due and payable to the Insurer in accordance with
Section 4.04(1)(d) of the Indenture:
=================================================
Specification Amount
-------------------------------------------------
=================================================
(6) Dividends paid by MONY Life to MONY Holdings attributable to
the Closed Block Business and the amount of any distributions to be made to The
MONY Group Inc. from such funds in accordance with Section 4.04(1)(e):
========================================================================
Specification Amount Distribution
------------------------------------------------------------------------
========================================================================
(7) List of assets to be liquidated in accordance with Section
4.04(1)(f) of the Indenture, in order of priority in which they are to be so
liquidated:
===========================================
Specification
-------------------------------------------
===========================================
(8) Termination payments associated with the Swaps in accordance
with Section 4.04(1)(g) of the Indenture:
=======================================================================
Specification Amount Payable To
-----------------------------------------------------------------------
=======================================================================
J-2
(9) Any and all Liquidated Damages paid in accordance with
Section 4.04(1)(h) of the Indenture:
======================================================================
Specification Amount Payable To
----------------------------------------------------------------------
======================================================================
All capitalized terms used herein and not otherwise defined
shall have the meanings specified in the Indenture.
MONY HOLDINGS, LLC
By:___________________________
Name:
Title:
J-3
Exhibit K
[Form of Notice of Due Tax Payments]
[Letterhead of MONY Holdings, LLC]
Bank One Trust Company, N.A.,
as Trustee,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
[DATE]
Pursuant to Section 4.04(2) of the Indenture among MONY Holdings, LLC
("MONY Holdings"), Ambac Assurance Corporation, The MONY Group Inc., solely for
the limited purposes set forth therein and you, as Trustee, dated as of April
30, 2002 (the "Indenture"), we hereby advise you that [strike out as
appropriate] [no tax payments are] [the following net Tax Payments are] due and
payable by MONY Holdings to The MONY Group Inc. on __________________________,
20___ in accordance with Section 4.05(1)(a) of the Indenture.
===========================================================
Specification Amount
-----------------------------------------------------------
-----------------------------------------------------------
All capitalized terms used herein and not otherwise defined shall have
the meanings specified in the Indenture.
MONY HOLDINGS, LLC
By:_____________________________
Name:
Title:
K-1
Exhibit L
[Form of Notice of Required Account Deposit]
[Letterhead of U.S. Bank]
MONY Holdings, LLC,
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Ambac Assurance Corporation,
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Director, Structured Finance
and Credit Derivatives
[DATE]
Pursuant to the Indenture among MONY Holdings, LLC ("MONY Holdings"),
Ambac Assurance Corporation, The MONY Group Inc., solely for the limited
purposes set forth therein, and Bank One Trust Company, N.A., as Trustee, dated
as of April 30, 2002 (the "Indenture"), we hereby advise you that [check as
applicable]:
[_] following payments effected from the Debt Service Coverage
Account on _________________________, 20___, the funds therein
have fallen below a level specified in Section 4.08 of the
Indenture
and a deposit is required to be made [check as applicable]
[_] by MONY Holdings pursuant to Section 4.08 of the Indenture into
the DSCA-Subaccount OB (Deposit) in the minimum amount of
$_______.
[_] by MONY Life pursuant to Section 4.11 of the Indenture into the
Additional Reserve Account within MONY Life in the minimum amount
of $__________.
The amount(s) to be deposited was/were determined as follows:
All terms used herein shall have the meanings specified in the
Indenture.
BANK ONE TRUST COMPANY, N.A.
By:_____________________________
Name:
Title:
Exhibit M
[Form of Notice of Account Deposit]
[Letterhead of U.S. Bank]
MONY Holdings, LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Ambac Assurance Corporation,
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Director, Structured Finance
and Credit Derivatives
[DATE]
Pursuant to the Indenture among MONY Holdings, LLC ("MONY Holdings"),
Ambac Assurance Corporation, The MONY Group Inc., solely for the limited
purposes set forth therein, and Bank One Trust Company, N.A., as Trustee, dated
as of April 30, 2002 (the "Indenture"), we hereby advise you that a deposit has
been made into [check as applicable]:
[_] the DSCA-Subaccount CBB on _________________________, 20___, and
credited to such account in the amount of $____________.
[_] the DSCA-Subaccount OB on _________________________, 20___, and
credited to such account in the amount of $_________.
[_] the DSCA-Subaccount OB (Deposit) on ___________________, 20___,
and credited to such account in the amount of $_________.
[_] the Additional Reserve Account within MONY Life on
________________________, 20___, and credited to such account in
the amount of $__________.
All capitalized terms used herein shall have the meanings specified in
the Indenture.
BANK ONE TRUST COMPANY, N.A.
By:_____________________________
Name:
Title:
M-1
Exhibit N
[Form of Notice of Current Ratings]
[Letterhead of MONY Holdings, LLC]
Bank One Trust Company, N.A.,
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Ambac Assurance Corporation,
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Director, Structured Finance
and Credit Derivatives
[DATE]
Pursuant to Section 4.04(3) of the Indenture among MONY Holdings,
LLC ("MONY Holdings"), Ambac Assurance Corporation, The MONY Group Inc., solely
for the limited purposes set forth therein, and Bank One Trust Company, N.A., as
Trustee, dated as of April 30, 2002 (the "Indenture"), we hereby advise you of
the following ratings:
1. MONY Life
================================================================================
Xxxxx'x S&P Fitch A.M. Best
--------------------------------------------------------------------------------
Financial Strength Rating
================================================================================
2. The MONY Group Inc.
===========================================================
Xxxxx'x S&P
-----------------------------------------------------------
Long-term, Senior
Unsecured Debt
===========================================================
All capitalized terms used herein and not otherwise defined shall
have the meanings specified in the Indenture.
MONY HOLDINGS, LLC
By:_____________________________
Name:
Title:
Exhibit O
FORM OF SUBORDINATION PROVISIONS
MONY Holdings, LLC and the obligee agree that the indebtedness
created by this agreement is subordinated in right of payment, to the extent and
in the manner herein provided, to the prior payment of principal and interest in
full of the Series A Floating Rate Insured Notes due 2017 and additional series
of floating rate and fixed rate insured notes as may be issued from time to time
as provided herein (collectively, the "CB Debt"), as described in the Indenture
dated April 30, 2002 among MONY Holdings, LLC, Ambac Assurance Corporation, The
MONY Group Inc. (solely for limited purposes), and Bank One Trust Company, N.A.,
as trustee, but only in respect of the collateral provided for under the CB
Debt.
Upon any distribution to creditors in any rehabilitation,
liquidation, conservation, or dissolution proceeding relating to MONY Holdings,
LLC or its property, the holders of the CB Debt will first be entitled to
receive payment in full of all amounts due or to become due with respect to the
CB Debt before the obligee will be entitled to receive any payment in respect of
the principal of or interest on the debt created by this agreement, but only in
respect of the collateral provided for under the CB Debt.
If a distribution is made to the obligee that, because of this
provision, should not have been made, the obligee shall hold it in trust for the
holders of the CB Debt, and shall forthwith deliver the same to the Trustee for
application to the payment of principal, interest and other amounts owing on the
CB Debt.
O-1
Exhibit P
[Form of Notice of Glide Path Actual Ratio]
[Letterhead of U.S. Bank]
MONY Holdings, LLC,
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Ambac Assurance Corporation,
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Director, Structured Finance
and Credit Derivatives
[DATE]
Pursuant to Section 4.11(2) of the Indenture among MONY Holdings,
LLC, Ambac Assurance Corporation, The MONY Group, Inc., solely for the limited
purposes set forth therein, and Bank One Trust Company, N.A., as Trustee, dated
as of April 30, 2002 (the "Indenture") we hereby confirm to you that:
1. The Glide Path Actual Ratio is ______________.
2. The Ratio Excess is ______________.
3. The DSCA Shortfall is ____________.
All capitalized terms used herein and not otherwise defined shall
have the meanings specified in the Indenture.
BANK ONE TRUST COMPANY, N.A.
By:_____________________________
Name:
Title:
P-1
Exhibit Q
================================================================================
MONY Holdings, LLC,
as Issuer,
AND
Ambac Assurance Corporation,
AND
The MONY Group Inc.,
solely for the limited purposes set forth herein and in the Original Indenture,
TO
Bank One Trust Company, N.A.,
as Trustee
[First] Supplemental Indenture
Dated as of [ ________, ____]
$[__________ ]
"Series [_] [Floating Rate Insured] [Fixed Rate Insured] Notes"
[FIRST] SUPPLEMENTAL INDENTURE, dated as of [___________ __,
____], between MONY Holdings, LLC, a limited liability company duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal executive office at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and Ambac Assurance Corporation, an insurance company
incorporated under the laws of the State of Wisconsin (herein called the
"Insurer"), The MONY Group Inc., a company duly incorporated under the laws of
the State of Delaware (herein called "MONY Group"), solely for the limited
purposes set forth herein and in the Indenture (as defined below), and Bank One
Trust Company, N.A., a national banking association, as Trustee (herein called
"Trustee"). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Indenture.
WITNESSETH:
WHEREAS, the Company has heretofore entered into an Indenture,
dated as of April 30, 2002 (the "Original Indenture"), with MONY Group (solely
for limited purposes), the Insurer and the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by this Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, additional series of
floating rate insured notes and fixed rate insured notes may at any time be
established by the Company in accordance with the provisions of the Original
Indenture and the terms of such series may be described by a supplemental
indenture executed by the Company and the Trustee, with (so long as no Insurer
Default has occurred and is continuing) the consent of the Insurer;
WHEREAS, the Company proposes to create under the Indenture an
additional series of [floating rate insured] [fixed rate insured] notes;
WHEREAS, additional floating rate and fixed rate insured notes
of other series hereafter established, except as may be limited in the Original
Indenture as at the time supplemented and modified, may be issued from time to
time pursuant to the Indenture as at the time supplemented and modified; and
WHEREAS, all things necessary to make the Series [_____]
[Floating Rate Insured] [Fixed Rate Insured] Notes (as defined below), when
executed by the Company and authenticated and delivered under this Supplemental
Indenture and duly issued by the Company, the valid obligations of the Company,
and to make this Supplemental Indenture a valid agreement of the Company, in
accordance with their and its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and
the purchase of the Series [_____] [Floating Rate Insured] [Fixed Rate Insured]
Notes by their Holders, it is mutually agreed, for the equal and proportionate
benefit of all Holders, as follows:
Article I
Series [_____] [Floating Rate Insured] [Fixed Rate Insured]
Notes
Section 1.01. Establishment. There is hereby established an
additional series of [floating rate insured] [fixed rate insured] notes to be
issued under the Indenture, to be designated as the Company's Series [_____]
[Floating Rate Insured] [Fixed Rate Insured] Notes due [ _______] (the "Series
[_____] [Floating Rate Insured] [Fixed Rate Insured] Notes").
The aggregate Initial Principal Amount of Series [_____]
[Floating Rate Insured] [Fixed Rate Insured] Notes that may be authenticated and
delivered under this Supplemental Indenture is limited to $[___________], except
for Series [_____] [Floating Rate Insured] [Fixed Rate Insured] Notes
authenticated and delivered upon registration of transfer of, or in exchange for
(including through an Exchange Offer), or in lieu of, other Series [_____]
[Floating Rate Insured] [Fixed Rate Insured] Notes pursuant to Section 3.04,
3.06, 3.08, 10.06 or 12.09 of the Original Indenture.
[The Series [____] [Floating Rate Insured] [Fixed Rate
Insured] Notes shall be issued in the form of one Global Security in
substantially the form set out in Exhibit A hereto.] [The Series [____] Floating
Rate Insured Notes shall be issued in the form of one Global Security in
substantially the form set out in Exhibit A to the Original Indenture.] The
Depositary with respect to the Series [____] [Floating Rate Insured] [Fixed Rate
Insured] Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for
the Series [____] [Floating Rate Insured] [Fixed Rate Insured] Notes shall be in
substantially the form set forth in Exhibit B hereto.
Each Series [____] [Floating Rate Insured] [Fixed Rate
Insured] Note shall be dated the date of authentication thereof and shall bear
interest from the date of original issuance thereof or from the most recent
Interest Payment Date to which interest has been paid or duly provided for.
Section 1.02. Definitions. The following defined terms used
herein shall, unless the context otherwise requires, have the meanings specified
below. Capitalized terms used herein for which no definition is provided herein
shall have the meanings set forth in the Original Indenture.
"Stated Maturity" means [_______________].
[insert other applicable definitions]
Section 1.03. Payment of Principal and Interest. The principal
of the Series [____] [Floating Rate Insured] [Fixed Rate Insured] Notes shall be
due at Stated Maturity. The unpaid principal amount of the Series [____]
[Floating Rate Insured] [Fixed Rate Insured] Notes shall bear interest [insert
applicable interest provisions].
2
Article II
Miscellaneous Provisions
Section 2.01. Recitals by Company. The recitals contained in
this Supplemental Indenture and in the Series [____] [Floating Rate Insured]
[Fixed Rate Insured] Notes, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Series [____] [Floating Rate Insured] [Fixed Rate
Insured] Notes or the proceeds thereof.
Section 2.02. Ratification and Incorporation of Original
Indenture. As supplemented hereby, the Original Indenture is in all respects
ratified and confirmed, and the Original Indenture and this Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
Section 2.03. Executed in Counterparts. This Supplemental
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
3
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
MONY HOLDINGS, LLC
By:_________________________________
Name:
Title:
AMBAC ASSURANCE CORPORATION
By:_________________________________
Name:
Title:
THE MONY GROUP INC.,
Solely for the limited purposes set
forth herein and in Sections 6.06,
11.05, 11.10(1) and 11.13(22) of the
Original Indenture
By:_________________________________
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
By:_________________________________
Name:
Title:
4
EXHIBIT A
FORM OF [____]% FIXED RATE INSURED NOTE
MONY HOLDINGS, LLC
[____]% FIXED RATE INSURED NOTES
$----------------------
NO._____
MONY Holdings, LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [_________________], or registered
assigns, the principal sum of [_______________] Dollars (or such lesser
remaining principal amount as is reflected in the books and records of the
Trustee under the Indenture referred to below), at the times and in the amounts
pursuant to the amortization schedule set forth on the reverse hereof, and to
pay interest thereon from [______________ ], at a rate of [_____________], until
the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Scheduled Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest, which shall be the
[_______________] (whether or not a Business Day), as the case may be, next
preceding such Scheduled Payment Date. The Scheduled Payment Dates shall be
[____________], commencing [___________ ___, _____].
If this Note is issued in the form of a Global Note, all payments of
the principal of, redemption price, if any, interest on and other amounts under
this Note shall be made in immediately available funds to the Depositary. If
this Note is issued as a Restricted Certificated Note, all payments of the
principal of, redemption price, if any, interest on and other amounts under this
Note will be made at the Corporate Trust Office of the Trustee in The City of
New York, New York, maintained for such purpose, and at any other office or
agency maintained by the Company for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by wire transfer or by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Notes Register.
The "Stated Maturity" of this Note will be [____________].
Installments of principal of this Note will be due and payable, in accordance
with the Indenture referred to on the reverse hereof, in the manner described on
the reverse hereof.
This Note is one of a duly authorized issue of additional notes of the
Company, issued and to be issued under an Indenture, dated as of April 30, 2002,
as supplemented by the
[First] Supplemental Indenture dated as of [__________ __, _____] (herein, as
supplemented or amended from time to time, called the "Indenture", which term
shall have the meaning assigned to it in such instrument), among the Company,
the Insurer (as defined below), The MONY Group Inc., solely for limited purposes
as set forth therein, and Bank One Trust Company, N.A. (herein called the
"Trustee" which term includes any successor trustee under the Indenture)
designated as its [____]% Fixed Rate Insured Notes due [___________ __, _____]
(herein called the "[____]% Fixed Rate Insured Notes"), limited in aggregate
Initial Principal Amount to $[______________]. On April 30, 2002, the Company
issued under the Indenture its Series A Floating Rate Notes due 2017 (the
"Series A Notes") and the Company has also authorized the issuance from time to
time under the Indenture of additional series of floating rate and fixed rate
insured notes as provided in the Indenture (collectively, the "Additional Notes"
and together with the [____]% Fixed Rate Insured Notes and the Series A Notes,
the "Notes").
Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Insurer, the Trustee and the Holders of the Notes of each series. This Note
is subject to the provisions of the Indenture.
This Note is secured pursuant to the Indenture by the Collateral (as
defined in the Indenture) consisting of certain property and rights equally and
ratably pledged as security for the Notes of each series, as provided in the
Indenture.
Scheduled payments of principal and interest on the Notes, but not
Special Interest (as defined on the reverse hereof), are guaranteed by Ambac
Assurance Corporation (the "Insurer") under the Insurance Policy, dated as of
April 30, 2002, issued for the benefit of the Trustee on behalf of the Holders
of the Notes (the "Insurance Policy").
So long as (1) no Insurer Default (as defined in the Indenture) has
occurred and is continuing, the Insurer shall be entitled to exercise all rights
and remedies with respect to the Notes under the Indenture, including the right
to vote on all matters presented to the Holders, the exercise of remedies and
the waiver of breaches and defaults, except for the rights of each of the
Holders of the Notes to approve any changes in the material terms of the Notes
as specified in the Indenture and (2) an Insurer Default occurs and is
continuing, all rights and remedies available to a specific series of Notes
shall be exercised directly by the Holders of such series of Notes, and all
rights and remedies available to Holders as a group under the Indenture shall be
exercised by the Holders, voting as a group.
Under the terms of the Insurance Policy, the Insurer is not obligated
to pay any payments with respect to any Note after the Company has made a
deposit to effect a defeasance of such Note pursuant to the Indenture. Each
Holder by acceptance of this Note covenants and agrees to release the Insurer,
subject to certain limited bankruptcy related exceptions as set forth in the
Insurance Policy, of all of its obligations pursuant to the Insurance Policy
upon the occurrence of such a deposit.
Each Holder by acceptance of this Note covenants and agrees that
recourse with respect to the obligations of the Company on the Notes, the
Indenture, the Insurance Agreement or the Registration Rights Agreement or any
other agreement, instrument, certificate or other document delivered in
connection therewith shall be limited first, to the Collateral, and, upon
2
foreclosure on all the Collateral, liquidation of all the Collateral and
application of the moneys so collected pursuant to the Indenture, second, to the
Company as senior, unsecured indebtedness to the extent of the Fair Market Value
of the Closed Block Business (as defined in the Indenture) as of the date of the
commencement of foreclosure on the Collateral.
Each Holder by acceptance of this Note covenants and agrees that no
recourse may be taken with respect to the Notes, the Indenture, the Insurance
Policy, the Insurance Agreement or the Registration Rights Agreement or any
other agreement, instrument, certificate or other document delivered in
connection therewith, against (i) any member of the Company, any Affiliate,
Subsidiary or controlling person thereof, or (ii) any stockholder, partner,
member, officer or director of any of such parties in their individual
capacities, any holder of a beneficial interest in any of such parties or any
successor or assignee thereof in their individual capacities or against any
beneficial or equity owner of a trust, including MONY Group or MONY Life (the
parties referred to in clauses (i) and (ii) of this paragraph are referred to
collectively as the "Exculpated Parties"). Except as provided above, no suit,
claim or proceeding will be brought against the Exculpated Parties or any of
them for any obligation relating to the Notes, the Indenture, the Insurance
Agreement or the Registration Rights Agreement or any agreement, instrument,
certificate or other document delivered in connection therewith.
Each Holder by acceptance of this Note covenants and agrees, to the
fullest extent permitted by law, that it will not at any time prior to
foreclosure on all of the Collateral, liquidation of all of the Collateral and
application of the moneys so collected pursuant to the Indenture, institute
against the Company, or join in any institution against the Company of, any
bankruptcy, reorganization, arrangement, insolvency, rehabilitation,
conservation or liquidation proceedings, or any other proceedings under any
United States federal or state, or any other bankruptcy, insolvency or similar
law in connection with any obligations relating to the Indenture, the Notes, the
Insurance Agreement or any agreement relating hereto or thereto.
The Company shall treat this Note as debt of MONY Group for United
States federal, state and local tax purposes, and each Holder, by acceptance of
this Note, acknowledges and agrees to such treatment, and covenants to take no
action inconsistent with such treatment unless otherwise notified by the
Company.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. Capitalized terms used and
not otherwise defined herein are defined in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
MONY Holdings, LLC
By _____________________________
This is one of the Notes of the series designated therein referred to
in the within mentioned Indenture.
BANK ONE TRUST COMPANY, N.A., as Trustee
BY ______________________________
Authorized Officer
4
Reverse of Note.
The interest on this Note shall be payable at a fixed rate of [___]%
[insert applicable definitions and interest provisions]
The Company shall repay the principal amount of the [____]% Fixed Rate
Insured Notes in [annual] installments, commencing on [_______________ __,
______] and continuing until the Stated Maturity. The aggregate amount of
principal of the [____]% Fixed Rate Insured Notes to be repaid in each [year]
shall be as follows (in millions of dollars):
[Year] Principal Amount [Year] Principal Amount
----------------- ------------------ ----------------- ------------------
Each [annual] scheduled repayment of principal will be made on
[____________] of the relevant [year], together with the payment of interest due
on that date, to the person whose name this Note is registered on the Regular
Record Date before the payment date. The final [annual] scheduled repayment of
interest will be made only against surrender of the Note to the Trustee.
The Notes may be redeemed at the election of the Company, in whole or
in part on any Scheduled Payment Date, at the Regular Redemption Price (as
defined below), payable in cash, together with interest and Liquidated Damages
(if any) accrued to but not including the Redemption Date. The Regular
Redemption Price for the [____]% Fixed Rate Insured Notes, payable in cash, and
expressed as a percentage of the outstanding principal amount of each Note to be
redeemed, shall equal [_______]% of the outstanding principal amount of such
Note if redeemed on or before [____________ __, ______]. Thereafter, the Regular
Redemption Price shall decline ratably on a straightline basis to [_____]% by
[_____________ __, ____] of the outstanding principal amount of each Note to be
redeemed and shall remain constant thereafter.
Notwithstanding the foregoing paragraph, upon the occurrence of a
Regulatory Redemption Event (as defined below), the Notes may be redeemed at the
election of the Company, as a whole or in part, on any Scheduled Payment Date,
at the Regulatory Redemption Event Redemption Price (as defined below), payable
in cash, together with interest and Liquidated Damages (if any) accrued to but
not including the Redemption Date. The Regulatory Redemption Event Redemption
Price for the [____]% Fixed Rate Insured Notes, payable in cash, and expressed
as a percentage of the outstanding principal amount of each Note to be redeemed,
shall equal 100% of the outstanding principal amount of such Note.
5
In each case, payment shall be made together with interest and
Liquidated Damages (if any) accrued to but not including the Redemption Date,
but interest installments and Liquidated Damages (if any) for a Scheduled
Payment Date prior to such Redemption Date will be payable to the Holders of
such [____]% Fixed Rate Insured Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant Regular Record Dates referred to
on the face hereof, all as provided in the Indenture.
If there occurs (i) a Regulatory Redemption Event or (ii) a change in
New York law or regulation (other than with respect to taxes) after the Closing
Date that materially adversely affects the transferability of the Collateral,
the Company shall provide notice to the Trustee and the Insurer of such event or
change, not more than 15 days following the date on which the law or regulation
giving rise to such event or change is enacted, issued or promulgated. A
Regulatory Redemption Event occurs if there is a change in New York law or
regulation (other than with respect to taxes) that changes the ability of MONY
Life to declare shareholder dividends without regulatory approval in a manner
that materially adversely affects CB Debt Cash Flow. So long as no Insurer
Default has occurred and is continuing, the Insurer will have the right,
exercisable within 60 days following receipt of notice by the Company of any
such change, to require the Company to redeem all of the Notes, at the
Regulatory Redemption Event Redemption Price, payable in cash, together with
interest and Liquidated Damages (if any) accrued to but not including the
Redemption Date, it being agreed that the Redemption Date shall be not later
than 120 days following receipt by the Company of written notice of the
Insurer's exercise of such right.
In the event of a partial redemption, the amount to be redeemed will
be allocated pro rata as determined by the then outstanding principal amount
among all the Notes Outstanding at the Redemption Date. The amount to be
redeemed that is allocated to the [____]% Fixed Rate Insured Notes will be
further allocated pro rata as determined by the then outstanding principal
amount among all of the Outstanding [____]% Fixed Rate Insured Notes.
In the event of a Change of Control, the Insurer, so long as no
Insurer Default has occurred and is continuing, will have the right, within 60
days following its receipt of notice of such Change of Control by the Company,
which notice shall be given within 15 days after the later of (i) the effective
date of the Change of Control or (ii) the date on which the Company has
knowledge of the Change of Control, to notify the Company of its exercise of the
right to require the Company to redeem all of the Notes within 60 days following
receipt of such notice. The [____]% Fixed Rate Insured Notes will in this
circumstance be redeemed at the Regular Redemption Price, payable in cash,
together with interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date.
Further, upon the sale of all or substantially all of the assets of
the Closed Block Business, the Company will be required to redeem, no later than
the effective date of the sale, all of the Notes. The [____]% Fixed Rate Insured
Notes will in this circumstance be redeemed at the Regular Redemption Price,
payable in cash, together with interest and Liquidated Damages (if any) accrued
to but not including the Redemption Date.
In the event of redemption of this [____]% Fixed Rate Insured Note in
part only, a new [____]% Fixed Rate Insured Note or Notes in Initial Principal
Amount equal to and in
6
exchange for the Remaining Principal Amount of the Note not so redeemed and
surrendered will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Notes are further subject to Defeasance at the election of the
Company, if the Company deposits with the Trustee funds in trust specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
the Notes, sufficient to pay and discharge the principal and interest on the
Notes through their respective Stated Maturities and Liquidated Damages.
In the event of the funding of a Defeasance, the Insurance Policy
guaranteeing payment of scheduled principal and interest on the Notes shall
terminate as to all future payments but will remain in effect for all amounts
paid prior to such funding date for the applicable fraudulent transfer or
voidable transfer periods following such funding date.
The Indenture permits the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Notes under the Indenture at any time by the Company and the Trustee, with the
consent of the Insurer. For certain material changes to the terms of the Notes,
as specified in the Indenture, the consent of each affected Holder is required.
The Indenture also contains provisions permitting the Holders of not
less than [66?]% in outstanding principal amount of the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences (it being understood
that, so long as no Insurer Default has occurred and is continuing, the Insurer
shall have the exclusive right under the Indenture to exercise the rights of the
Holders in determining whether to give any such direction).
Any such consent or waiver shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration or transfer hereof or in exchange herefor (including through an
Exchange Offer) or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, the Regular Redemption
Price or the Regulatory Redemption Event Redemption Price, as the case may be,
and interest on and Liquidated Damages (if any) accrued to but not including the
Redemption Date in respect of this Note at the times, place and rate, and in the
coin and currency, as prescribed in the Indenture; the enforcement of such
obligation of the Company being subject to a limited recourse provision set
forth in Section 6.06 of the Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Notes
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed by
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes, of
7
authorized denominations and for the same aggregate Initial Principal Amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in fully registered form without coupons
in principal amounts only in denominations of $100,000 and integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of any series are exchangeable for a like
tenor and aggregate Remaining Principal Amount of other Notes of the same series
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
8
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within mentioned Indenture.
BANK ONE TRUST COMPANY, N.A., as Trustee
By:
-----------------------------------
Authorized Officer
Exhibit R
CROSS-REFERENCE TABLE
Trust Indenture Act Section Indenture Section
------------------------------------------------------------------------------------
310 (a)(1) N.A.
------------------------------------------------------------------------------------
(a)(2) N.A.
------------------------------------------------------------------------------------
(a)(3) N.A.
------------------------------------------------------------------------------------
(a)(4) N.A.
------------------------------------------------------------------------------------
(a)(5) N.A.
------------------------------------------------------------------------------------
(b) N.A.
------------------------------------------------------------------------------------
(b)(1) N.A.
------------------------------------------------------------------------------------
(c) N.A.
------------------------------------------------------------------------------------
311 (a) N.A.
------------------------------------------------------------------------------------
(b)(4) Section 7.13
------------------------------------------------------------------------------------
(b)(6) Section 7.13
------------------------------------------------------------------------------------
(c) N.A.
------------------------------------------------------------------------------------
312 (a) N.A.
------------------------------------------------------------------------------------
(b) Section 8.02
------------------------------------------------------------------------------------
(c) N.A.
------------------------------------------------------------------------------------
313 (a) Section 8.03
------------------------------------------------------------------------------------
(b) Section 8.03
------------------------------------------------------------------------------------
(b) (1) N.A.
------------------------------------------------------------------------------------
(b) (2) N.A.
------------------------------------------------------------------------------------
(c) Section 7.02, Section 8.03, Section 8.04
------------------------------------------------------------------------------------
(d) Section 8.03
------------------------------------------------------------------------------------
314 (a) Section 8.04
------------------------------------------------------------------------------------
(a)(1) N.A.
------------------------------------------------------------------------------------
(a)(2) N.A.
------------------------------------------------------------------------------------
(a)(3) N.A.
------------------------------------------------------------------------------------
(a)(4) N.A.
------------------------------------------------------------------------------------
(b) N.A.
------------------------------------------------------------------------------------
(c)(1) N.A.
------------------------------------------------------------------------------------
(c)(2) N.A.
------------------------------------------------------------------------------------
(c)(3) N.A.
------------------------------------------------------------------------------------
(e) N.A.
------------------------------------------------------------------------------------
(f) N.A.
------------------------------------------------------------------------------------
315 (a) N.A.
------------------------------------------------------------------------------------
(b) N.A.
------------------------------------------------------------------------------------
(c) N.A.
------------------------------------------------------------------------------------
(d) N.A.
------------------------------------------------------------------------------------
(e) N.A.
------------------------------------------------------------------------------------
316 (a) N.A.
------------------------------------------------------------------------------------
(a)(1) N.A.
------------------------------------------------------------------------------------
(a)(2) N.A.
------------------------------------------------------------------------------------
(b) N.A.
------------------------------------------------------------------------------------
(c) N.A.
------------------------------------------------------------------------------------
317 (a)(1) N.A.
------------------------------------------------------------------------------------
(a)(2) N.A.
------------------------------------------------------------------------------------
(b) N.A.
------------------------------------------------------------------------------------
318 (a) N.A.
------------------------------------------------------------------------------------
(b) N.A.
------------------------------------------------------------------------------------
(c) N.A.
------------------------------------------------------------------------------------
N.A. means not applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
Annex A to Indenture
Annex A
MONY Life manages the dividend scales primarily through analysis of
the ratio of assets to liabilities in the Closed Block. When the Closed Block
was originally funded, assets were allocated to the Closed Block such that if
the experience underlying the 1998 dividend scale continued, the assets would be
sufficient to continue the 1998 dividend scale and pay all policy benefits until
the expiration of the Closed Block. The level of assets in the Closed Block was
initially substantially lower than the liabilities in the Closed Block because,
among other reasons, commissions and maintenance expenses are not paid from the
Closed Block and statutory reserve assumptions are conservative. As the Closed
Block ages, the ratio of assets to liabilities in the Closed Block increases, so
that, at the expiration of the Closed Block, the assets will equal the
liabilities.
The planned progression of this ratio of assets to liabilities was
determined at the time the Closed Block was established and is referred to as
the "glidepath." The glidepath is used for managing dividend scales. As the
Closed Block experience unfolds, the ratio of assets to liabilities is compared
to the glidepath to determine whether any changes should be made to the dividend
scales.
For purposes of comparing the asset liability ratio to the glidepath
on a consistent basis, several adjustments are made to the asset and liability
values reported in the Statutory financial statements. The following is a list
of adjustments that are made to the reported assets and liabilities:
. Adjust the reported liabilities for any reserve valuation
changes that occur after demutualization.
. Exclude deficiency reserves from the reported liabilities since
these reserves were not included in the glidepath.
. Exclude policy loan interest due and accrued from the reported
assets since the glidepath assumes that policy loan interest is
received on the policy anniversary and does not establish an
asset for accrued policy loan interest.
. Exclude unamortized interest related capital gains and losses
from the reported assets. This consists of the IMR balance and
pre-payment penalties.
. Adjust the reported assets to reflect the impact of statutory
codification.
. Adjust the reported assets and liabilities for differences in
actual and modeled values at the start of the glidepath
projection.
. Adjust the reported assets for tax savings strategies that were
not reflected in the glidepath.
. Exclude the following payables and receivables from the
reported assets and liabilities:
. Claim liabilities
. Premiums received in advance
. Federal income tax due or accrued
. Payables to agents
. Payables to the parent company and affiliates
. Funds held under coinsurance
. Payables for securities
. Policy credits not modeled
. Various other payables / receivables that were not
reflected in the glidepath
. In the future, additional adjustments may be needed to the
extent there are changes in statutory reporting requirements,
tax reserve calculations, etc.
2
