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Exhibit 99.1
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
between
The MONY Group Inc., as Issuer
and
Goldman, Sachs & Co., as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement
dated as of July 15, 2000
between the Issuer and
The Chase Manhattan Bank, as Issuing and Paying Agent
Dated as of
July 15, 2000
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COMMERCIAL PAPER DEALER AGREEMENT
[4(2) Program]
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in connection with
the issuance and sale by the Issuer of its short-term promissory notes (the
"Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to purchase, or sell,
any Notes except (a) in transactions with one or more dealers which may from
time to time after the date hereof become dealers with respect to the Notes by
executing with the Issuer one or more agreements which contain provisions
substantially identical to those contained in Section 1 of this Agreement, of
which the Issuer hereby undertakes to provide the Dealer prompt notice or (b) in
transactions with the other dealers listed on the Addendum hereto, which are
executing agreements with the Issuer which contain provisions substantially
identical to Section 1 of this Agreement contemporaneously herewith. In no event
shall the Issuer offer, solicit or accept offers to purchase, or sell, any Notes
directly on its own behalf in transactions with persons other than
broker-dealers as specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or integral
multiples of $1,000 in excess thereof, will bear such interest rates, if
interest bearing, or will be sold at such discount from their face amounts, as
shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 270 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
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1.4 The authentication and issuance of, and payment for, the Notes shall
be effected in accordance with the Issuing and Paying Agency Agreement, and the
Notes shall be either individual physical certificates or book-entry notes
evidenced by a Master Note registered in the name of DTC or its nominee, in the
form or forms annexed to the Issuing and Paying Agency Agreement(1).
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase
of any Note by the Dealer or the sale of any Note arranged by the Dealer
(including, but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate (in the case of
interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying Agent,
for the account of the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid
the Issuer for the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a book-entry
Note. If such failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were credited to the
Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer shall be
made only to: (i) investors reasonably believed by the Dealer to be
Qualified Institutional Buyers, Institutional Accredited Investors or
Sophisticated Individual Accredited Investors and (ii) non-bank
fiduciaries or agents that will be purchasing Notes for one or more
accounts, each of which is reasonably believed by the Dealer to be an
Institutional Accredited Investor or Sophisticated Individual Accredited
Investor.
(b) Resales and other transfers of the Notes by the holders thereof
shall be made only in accordance with the restrictions in the legend
described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the generality
of the foregoing, without the prior written approval of the Dealer, the
Issuer shall not issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
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(1) If the form or forms of Notes are not annexed to the Issuing and Paying
Agency Agreement, they should be annexed to this Agreement or delivered to the
Dealer, with appropriate certification by the Secretary of the Issuer, pursuant
to section 3.6 of the Agreement.
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(d) No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a
smaller principal or face amount. If the purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom such purchaser is acting
must purchase at least $250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the Dealer
acting as agent for the Issuer shall be made in accordance with Rule 506
under the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto. A legend
substantially to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers and sales of
Notes hereunder, as well as on each individual certificate representing a
Note and each Master Note representing book-entry Notes offered and sold
pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has
previously received a copy of the Private Placement Memorandum as then in
effect. The Private Placement Memorandum shall expressly state that any
person to whom Notes are offered shall have an opportunity to ask
questions of, and receive information from, the Issuer and the Dealer and
shall provide the names, addresses and telephone numbers of the persons
from whom information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of the
holders and prospective purchasers from time to time of the Notes that, if
at any time the Issuer shall not be subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will furnish, upon request and at its expense, to
the Dealer and to holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the
Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to the Dealer an amendment or
supplement to the Private Placement Memorandum describing the Notes that
are ineligible, the reason for such ineligibility and any other relevant
information relating thereto.
(i) The Issuer represents that it is not currently issuing
commercial paper in the United States market in reliance upon the
exemption provided by Section 3(a)(3) of the Securities Act. In that
connection, the Issuer agrees that in the event that it shall, after the
date hereof, issue commercial paper in the United States in reliance upon
the exemption provided by Section 3(a)(3) of the Securities Act, (a) the
proceeds from the sale of the Notes will be segregated from the proceeds
of the sale of any such commercial paper by being placed in a separate
account; (b) the Issuer will institute appropriate corporate procedures to
ensure that the offers and sales of notes issued by the Issuer pursuant to
the Section 3(a)(3) exemption are not integrated with offerings and sales
of
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Notes hereunder; and (c) the Issuer will comply with each of the
requirements of Section 3(a)(3) of the Act in selling commercial paper or
other short-term debt securities other than the Notes in the United
States.
(j) The Issuer hereby agrees that, not later than 15 days after the
first sale of Notes as contemplated by this Agreement, it will file with
the SEC a notice on Form D in accordance with Rule 503 under the
Securities Act and that it will thereafter file such amendments to such
notice as Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the Dealer, in connection
with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as permitted
by Section 1.6(i)) within the preceding six months neither the Issuer nor
any person other than the Dealer or the other dealers referred to in
Section 1.2 hereof acting on behalf of the Issuer has offered or sold any
Notes, or any substantially similar security of the Issuer (including,
without limitation, medium-term notes issued by the Issuer), to, or
solicited offers to buy any such security from, any person other than the
Dealer or the other dealers referred to in Section 1.2 hereof. The Issuer
also agrees that (except as permitted by Section 1.6(i)), as long as the
Notes are being offered for sale by the Dealer and the other dealers
referred to in Section 1.2 hereof as contemplated hereby and until at
least six months after the offer of Notes hereunder has been terminated,
neither the Issuer nor any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof (except as contemplated by
Section 1.2 hereof) will offer the Notes or any substantially similar
security of the Issuer for sale to, or solicit offers to buy any such
security from, any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof, it being understood that such agreement
is made with a view to bringing the offer and sale of the Notes within the
exemption provided by Section 4(2) of the Securities Act and Rule 506
thereunder and shall survive any termination of this Agreement. The Issuer
hereby represents and warrants that it has not taken or omitted to take,
and will not take or omit to take, any action that would cause the
offering and sale of Notes hereunder to be integrated with any other
offering of securities, whether such offering is made by the Issuer or
some other party or parties.
(b) The Issuer represents and agrees that the proceeds of the sale
of the Notes are not currently contemplated to be used for the purpose of
buying, carrying or trading securities within the meaning of Regulation T
and the interpretations thereunder by the Board of Governors of the
Federal Reserve System. In the event that the Issuer determines to use
such proceeds for the purpose of buying, carrying or trading securities,
whether in connection with an acquisition of another company or otherwise,
the Issuer shall give the Dealer at least five business days' prior
written notice to that effect. The Issuer shall also give the Dealer
prompt notice of the actual date that it commences to purchase securities
with the proceeds of the Notes. Thereafter, in the event that the Dealer
purchases Notes as principal and does not resell such Notes on the day of
such purchase, to the extent necessary to comply with Regulation T and the
interpretations thereunder,
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the Dealer will sell such Notes either (i) only to offerees it reasonably
believes to be QIBs or to QIBs it reasonably believes are acting for other
QIBs, in each case in accordance with Rule 144A or (ii) in a manner which
would not cause a violation of Regulation T and the interpretations
thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been
duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement, will be duly and validly issued and
will constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do not
require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof and Regulation D
thereunder, and no indenture in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or action of, or
filing or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to authorize, or is otherwise required
in connection with the execution, delivery or performance of, this Agreement,
the Notes or the Issuing and Paying Agency Agreement, except as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in accordance with
the Issuing and Paying
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Agency Agreement, nor the fulfillment of or compliance with the terms and
provisions hereof or thereof by the Issuer, will (i) result in the creation or
imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of the Issuer, or (ii) violate or result in
a breach or a default under any of the terms of the Issuer's charter documents
or by-laws, any contract or instrument to which the Issuer is a party or by
which it or its property is bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government instrumentality, to which the
Issuer is subject or by which it or its property is bound, which breach or
default might have a material adverse effect on the condition (financial or
otherwise), operations or business prospects of the Issuer or the ability of the
Issuer to perform its obligations under this Agreement, the Notes or the Issuing
and Paying Agency Agreement.
2.8 Except as disclosed to the Dealer in writing, there is no litigation
or governmental proceeding pending, or to the knowledge of the Issuer
threatened, against or affecting the Issuer or any of its subsidiaries which
might reasonably be expected to result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
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Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event prior
to any subsequent issuance of Notes hereunder) of any amendment to, modification
of or waiver with respect to, the Notes or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment, modification or
waiver.
3.2 The Issuer shall, whenever there shall occur any adverse change in the
Issuer's condition (financial or otherwise), operations or business prospects or
any adverse development or occurrence in relation to the Issuer that would be
material to holders of the Notes or potential holders of the Notes (including
any downgrading or receipt of any notice of intended or potential downgrading or
any review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations hereunder,
under the Notes or under the Issuing and Paying Agency Agreement, at any time
that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall have
received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement, the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations
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among the Issuer, the Issuing and Paying Agent and DTC and (e) such other
certificates, opinions, letters and documents as the Dealer shall have
reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
out-of-pocket expenses related to this Agreement, including expenses incurred in
connection with its preparation and negotiation, and the transactions
contemplated hereby (including, but not limited to, the printing and
distribution of the Private Placement Memorandum), and, if applicable, for the
reasonable fees and out-of-pocket expenses of the Dealer's counsel.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to promptly
amend or supplement the Private Placement Memorandum in the manner described in
clause (b) above, then all solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or supplemented the Private
Placement Memorandum, and made such amendment or supplement available to the
Dealer.
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Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any information provided by the
Issuer to the Dealer included (as of any relevant time) or includes an untrue
statement of a material fact or omitted (as of any relevant time) or omits to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (ii) arising out
of or based upon the breach by the Issuer of any agreement, covenant or
representation made in or pursuant to this Agreement. This indemnification shall
not apply to the extent that the Claim arises out of or is based upon Dealer
Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer which are covered
by the indemnity provided by this section 5 in connection with any Claim in the
proportion of the respective economic interests of the Issuer and the Dealer;
provided, however, that such contribution by the Issuer shall be in an amount
such that the aggregate costs incurred by the Dealer do not exceed the aggregate
of the commissions and fees earned by the Dealer hereunder with respect to the
issue or issues of Notes to which such Claim relates. The respective economic
interests shall be calculated by reference to the aggregate proceeds to the
Issuer of the Notes issued hereunder and the aggregate commissions and fees
earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and
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(v) any information prepared or approved by the Issuer for dissemination to
investors or potential investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency Agreement, or any successor thereto in accordance with the
Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
6.11 "Private Placement Memorandum" shall mean offering materials prepared
in accordance with Section 4 (including materials referred to therein) provided
to purchasers and prospective purchasers of the Notes, and shall include
amendments and supplements thereto which may be prepared from time to time in
accordance with this Agreement (other than any amendment or supplement that has
been completely superseded by a later amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
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6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under the
Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 Each of the Issuer and Dealer agrees that any suit, action or
proceeding brought by the Issuer against the Dealer in connection with or
arising out of this Agreement or the Notes or the offer and sale of the Notes
shall be brought solely in the United States federal courts located in the
Borough of Manhattan or the courts of the State of New York located in the
Borough of Manhattan. EACH OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO
TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon one
business day's prior notice to such effect to the Dealer, or by the Dealer upon
one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
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<PAGE> 13
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto, and
their respective permitted successors and assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
The MONY Group Inc., as Issuer
By:_/s/ David Weigel
Name: David Weigel
Title: Vice President and Treasurer
Goldman, Sachs & Co., as Dealer
By: /s/ W.R. Hanson
Authorized Signatory
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<PAGE> 14
ADDENDUM(2)
The following additional clauses shall apply to the Agreement and be
deemed a part thereof .
1. The other dealers referred to in clause (b) of Section 1.2 of the
Agreement are none.
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer: The MONY Group, Inc.
Address: 1740 Broadway
New York, New York 10019
Attention: Dave Weigel, Vice President and Treasurer 6-39
Telephone number: (212) 708-2170
Fax number: (212) 708-2152
For the Dealer: Goldman, Sachs & Co.
Address: 85 Broad Street
New York, New York 10004
Attention: Money Markets Origination
Telephone number: (212) 902-2525
Fax number: (212) 902-0683
----------
(2) There may be added to this Addendum any changes or additions to the model
Agreement, as agreed between the parties.
<PAGE> 15
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND SALES
THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT THAT IT
HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER
AND THE NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL INVESTOR OR
SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(a) UNDER THE ACT AND WHICH, IN THE CASE OF AN INDIVIDUAL,
(i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS
THAT HE OR SHE IS CAPABLE OF EVALUATING AND BEARING THE ECONOMIC RISK OF AN
INVESTMENT IN THE NOTES AND (ii) HAS A NET WORTH OF AT LEAST $5 MILLION (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR", RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES FOR ITS OWN
ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS
AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(a)(5)(A) OF
THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A FIDUCIARY OR
AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION) PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH
PURCHASER HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS ACQUIRING NOTES
FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB AND WITH
RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE INVESTMENT DISCRETION; AND THE
PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE
EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE
DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A)
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE
ISSUER OR TO GOLDMAN, SACHS & CO. OR ANOTHER PERSON DESIGNATED BY THE ISSUER AS
A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF
WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT
AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT MEETS THE
REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
<PAGE> 16
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of external counsel) as they are
incurred by it in connection with investigating or defending any loss, claim,
damage, liability or action in respect of which indemnification may be sought
under Section 5 of the Agreement (whether or not it is a party to any such
proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence of
a Claim, such Indemnitee will, if a claim in respect thereof is to be made
against the Issuer, notify the Issuer in writing of the existence thereof;
provided that (i) the omission so to notify the Issuer will not relieve the
Issuer from any liability which it may have hereunder unless and except to the
extent it did not otherwise learn of such Claim and such failure results in the
forfeiture by the Issuer of substantial rights and defenses, and (ii) the
omission so to notify the Issuer will not relieve it from liability which it may
have to an Indemnitee otherwise than on account of this indemnity agreement. In
case any such Claim is made against any Indemnitee and it notifies the Issuer of
the existence thereof, the Issuer will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to the Indemnitee,
to assume the defense thereof, with counsel reasonably satisfactory to such
Indemnitee; provided that if the defendants in any such Claim include both the
Indemnitee and the Issuer, and the Indemnitee shall have concluded that there
may be legal defenses available to it which are different from or additional to
those available to the Issuer, the Issuer shall not have the right to direct the
defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall
have the right to select separate counsel to assert such legal defenses on
behalf of such Indemnitee. Upon receipt of notice from the Issuer to such
Indemnitee of the Issuer's election so to assume the defense of such Claim and
approval by the Indemnitee of counsel, the Issuer will not be liable to such
Indemnitee for expenses incurred thereafter by the Indemnitee in connection with
the defense thereof (other than reasonable costs of investigation) unless (i)
the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the Issuer shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel
in the jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim).
<PAGE> 17
MODEL OPINION OF COUNSEL TO ISSUER(3)
[Date]
[Name and Address of Dealer]
Ladies and Gentlemen:
We have acted as counsel to ________________, a _____________ corporation
(the "Company"), in connection with the proposed offering and sale by the
Company in the United States of commercial paper in the form of short-term
promissory notes (the "Notes").
In our capacity as such counsel, we have examined a specimen form of Note,
an executed copy of the Commercial Paper Dealer Agreement dated ____________,
199_ (the "Agreement") between the Company and [Name of Dealer] (the "Dealer"),
and the Issuing and Paying Agency Agreement dated _____, 199_ (the "Issuing and
Paying Agency Agreement") between the Company and _____, as issuing and paying
agent (the "Issuing and Paying Agent") as well as originals, or copies certified
or otherwise identified to our satisfaction, of such other records and documents
as we have deemed necessary as a basis for the opinions expressed below. In such
examination, we have assumed the genuineness of all documents submitted to us as
originals, and the conformity to the originals of all documents submitted to us
as copies.
Capitalized terms used herein without definition are used as defined in
the Agreement.
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(3) Set forth below are the operative provisions on which the Dealer will
generally expect a legal opinion. Parties should recognize that there may be
additions to the Dealer's opinion request, and variations as to the opinion
language, depending on the details of the transaction and the differing opinion
practices of law firms; it may also be necessary to split the opinion between
two or more counsel where no one counsel is in a position to opine as to all
subjects or in all relevant jurisdictions.
<PAGE> 18
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of _________ and has all the requisite
power and authority to execute, deliver and perform its obligations under the
Notes, the Agreement and the Issuing and Paying Agency Agreement.
2. Each of the Agreement and the Issuing and Paying Agency Agreement has
been duly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and except as rights
under the Agreement to indemnity and contribution may be limited by federal or
state laws.
3. The Notes have been duly authorized, and when issued as provided in the
Issuing and Paying Agency Agreement, will be duly and validly issued and will
constitute legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
4. The issuance and sale of Notes under the circumstances contemplated by
the Agreement and the Issuing and Paying Agency Agreement do not require
registration of the Notes under the Securities Act, pursuant to the exemption
from registration contained in Section 4(2) thereof and Regulation D thereunder,
and do not require compliance with any provision of the Trust Indenture Act of
1939, as amended; and the Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Issuer.
5. No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the Securities
and Exchange Commission, is required to authorize, or is otherwise required in
connection with the execution, delivery or performance of, the Agreement, the
Notes or the Issuing and Paying Agency Agreement, except as may be required by
the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
6. Neither the execution and delivery of the Agreement and the Issuing and
Paying Agency Agreement, nor the issuance of the Notes in accordance with the
Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with
the terms and provisions of either thereof by the Company, will (i) result in
the creation or imposition of any mortgage, lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the Company, or (ii)
violate or result in a breach or default under any of the terms of the Company's
charter documents or by-laws, any contract or instrument to which the Company is
a party or by which it or its property is bound, or any law or regulation, or
any order, writ, injunction or decree of any
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<PAGE> 19
court or government instrumentality, to which the Company is subject or by which
it or its property is bound.
7. There is no litigation or governmental proceeding pending, or to the
knowledge of the Company threatened, against or affecting the Company or any of
its subsidiaries which might result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Company or the ability of the Company to perform its obligations under the
Agreement, the Notes or the Issuing and Paying Agency Agreement.
8 The Company is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
This opinion may be delivered to the Issuing and Paying Agent, each holder
from time to time of Notes and any nationally recognized rating agency (in
connection with the rating of the Notes), each of which may rely on this opinion
to the same extent as if such opinion were addressed to it.
Very truly yours,
3
<PAGE> 20
Model Certificate as to Resolutions(4)
[Name of Issuer]
I, ____________, the [Assistant] Secretary of _______________, a
_____________ corporation (the "Issuer"), do hereby certify, in connection with
the issuance and sale of short-term promissory notes under the Commercial Paper
Dealer Agreement dated ____________, 199_ (the "Agreement", the terms defined
therein being used herein as therein defined) between the Issuer and
_______________ (the "Dealer"), that:
1. The following resolution was duly adopted by the Board of Directors of
the Issuer [by unanimous written consent dated _____, 199_] [at a meeting
thereof duly called and held on _______, 199_, at which meeting a quorum was
present and acting throughout], and such resolution has not been amended,
modified or revoked and is in full force and effect on the date hereof:
RESOLVED, that the Chairman of the Board, the President, the
Executive Vice President, any Vice President and the Treasurer of the
Issuer be, and each of them hereby is, individually authorized to: (i)
borrow for the use and benefit of the Issuer from time to time up to an
aggregate of $___________ at any one time outstanding through the issuance
of commercial paper notes; (ii) execute such commercial paper notes in the
name and on behalf of the Issuer and issue such notes in accordance with
the Issuing and Paying Agency Agreement referred to below; (iii) execute
and deliver (A) a Commercial Paper Dealer Agreement between the Issuer and
_____________, as Dealer, providing, among other things, for the sale of
commercial paper notes on behalf of the Issuer and the indemnification of
the Dealer in connection therewith, (B) an Issuing and Paying Agency
Agreement between the Issuer and _____________, as issuing and paying
agent, and (C) a Letter of Representations addressed to The Depository
Trust Company; (iv) execute and file with the Securities and Exchange
Commission Form D and any and all amendments thereto, as required by
Section 1.6(j) of the Agreement(5); (v) delegate to any other officers or
employees of the Issuer authority to give instructions to the Dealer
pursuant to the
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(4) This model certificate will serve as a guide for resolutions adopted by the
Issuer. Any resolutions actually adopted, regardless of form, should cover all
the substantive matters covered in this model, and a certificate substantially
to the effect of this model is required to be delivered to the Dealer under
Section 3.6(c) of the Agreement.
(5) Clause (iv) may be deleted if Section 1.6(j) is not part of the Agreement.
See paragraph 2 of the Addendum and the Guidance Note relating to Section 1.6
generally.
<PAGE> 21
Agreement; and (vi) do such acts and execute such other instruments and
documents as may be necessary and proper to effect the transactions
contemplated hereby including (a) amending documents referred to herein
and (b) appointing additional dealers and successors to any of the parties
named.
2. Each of the Agreement and the Issuing and Paying Agency Agreement, as
executed and delivered by the Issuer, is substantially in the form thereof
approved by the Board of Directors and referred to in the resolution set forth
in paragraph 1 hereof.
IN WITNESS WHEREOF, I have signed this certificate the _____ day of
_________, 199_.
____________________________
[Assistant] Secretary
2
