<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 12, 2000.
SUBJECT TO AMENDMENT.
REGISTRATION NOS. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<TABLE>
<S> <C> <C>
THE MONY GROUP INC. DELAWARE 13-3976138
MONY CAPITAL TRUST I DELAWARE APPLIED FOR
MONY CAPITAL TRUST II DELAWARE APPLIED FOR
(Exact name of registrant as specified in (State or other jurisdiction of (I.R.S. Employer Identification No.)
its charter) incorporation
or organization)
</TABLE>
1740 BROADWAY
NEW YORK, NEW YORK 10019
(212) 708-2000
(Address, including zip code, and telephone number, including area code, of each
registrant's principal executive offices)
------------------------
JOHN R. MCFEELY, ESQ.
THE MONY GROUP INC.
1740 BROADWAY
NEW YORK, NEW YORK 10019
(212) 708-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
------------------------
THE COMMISSION IS REQUESTED TO MAIL SIGNED COPIES OF ALL ORDERS, NOTICES AND
COMMUNICATIONS TO:
<TABLE>
<S> <C>
JOHN R. MCFEELY, ESQ. JONATHAN L. FREEDMAN, ESQ.
THE MONY GROUP INC. DEWEY BALLANTINE LLP
1740 BROADWAY 1301 AVENUE OF THE AMERICAS
NEW YORK, NY 10011 NEW YORK, NEW YORK 10019
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
------------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
EACH CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(1)(2)(3) PRICE(1)(2)(3) FEE(1)
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MONY Capital Trust I trust preferred securities...........
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MONY Capital Trust II trust preferred securities..........
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MONY senior notes.........................................
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MONY junior subordinated notes............................
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MONY stock purchase contracts to purchase common stock of
MONY.....................................................
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MONY stock purchase units, each representing ownership of
a stock purchase contract and senior notes, junior
subordinated notes, trust preferred securities or debt
obligations of third parties.............................
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MONY preferred stock......................................
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MONY common stock.........................................
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MONY guarantees with respect to trust preferred securities
of MONY Capital Trust I and MONY Capital Trust
II(4)(5).................................................
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Total..................................................... $1,000,000,000 100% $1,000,000,000 $264,000
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</TABLE>
(1) There are being registered hereunder such presently indeterminate number of
trust preferred securities of MONY Capital Trust I and MONY Capital Trust II
and such presently indeterminate principal amount of senior notes, junior
subordinated notes, stock purchase contracts, stock purchase units,
preferred stock and common stock of The MONY Group Inc., with an aggregate
initial offering price not to exceed $1,000,000,000. Junior subordinated
notes also may be issued to MONY Capital Trust I or MONY Capital Trust II
and later distributed upon dissolution and distribution of the assets
thereof, which would include such junior subordinated notes for which no
separate consideration will be received.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Exclusive of accrued interest and distributions, if any.
(4) No separate consideration will be received for the MONY guarantees. Pursuant
to Rule 457(n) no separate fee is payable in respect of the MONY guarantees.
(5) Includes the obligations of The MONY Group Inc. under the respective trust
agreements, the subordinated note indenture, the related series of junior
subordinated notes, the respective guarantees and the respective agreements
as to expenses and liabilities, which include the Company's covenant to pay
any indebtedness, expenses or liabilities of the Trusts (other than
obligations pursuant to the terms of the trust preferred securities or other
similar interests), all as described in this registration statement.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a)OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 12, 2000.
PROSPECTUS
$1,000,000,000
THE MONY GROUP INC.
SENIOR NOTES
JUNIOR SUBORDINATED NOTES
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
PREFERRED STOCK
COMMON STOCK
-------------------------
MONY CAPITAL TRUST I
MONY CAPITAL TRUST II
TRUST PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS SET FORTH HEREIN BY
THE MONY GROUP INC.
-------------------------
We will provide the specific terms of these securities in supplements to
this prospectus. You should read this prospectus and the applicable prospectus
supplement carefully before you invest.
We may only use this prospectus to sell securities if it is accompanied by
a prospectus supplement.
INVESTING IN THESE SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-------------------------
Our shares of common stock are listed on the New York Stock Exchange under
the trading symbol "MNY."
The date of this prospectus is , 2000.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
About This Prospectus.......... 3
The MONY Group Inc............. 4
Risk Factors................... 5
Where You Can Find More
Information.................. 16
Special Note Regarding Forward-
Looking Statements........... 17
Ratios of Earnings to Fixed
Charges...................... 18
The Trusts..................... 19
Accounting Treatment of
Trusts....................... 20
Use of Proceeds................ 20
Description of the Senior
Notes........................ 21
Description of the Junior
Subordinated Notes........... 26
Description of the Trust
Preferred Securities......... 36
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Description of the
Guarantees................... 37
Relationship Among the Trust
Preferred Securities, the
Junior Subordinated Notes and
the Guarantees............... 40
Description of Stock Purchase
Contracts and Stock Purchase
Units........................ 42
Description of the Preferred
Stock........................ 43
Description of the Common
Stock........................ 45
Plan of Distribution........... 48
Legal Matters.................. 49
Experts........................ 49
</TABLE>
2
<PAGE> 4
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf registration process, we may, from time to time, sell any combination
of:
- senior notes;
- junior subordinated notes;
- stock purchase contracts;
- stock purchase units;
- preferred stock; and
- common stock,
and MONY Capital Trust I and MONY Capital Trust II may, from time to time, sell:
- trust preferred securities;
in one or more offerings up to a total dollar amount of $1,000,000,000. This
prospectus provides you with a general description of those securities. Each
time we sell any of these securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read this prospectus and the applicable prospectus
supplement together with additional information under the heading "Where You Can
Find More Information."
The registration statement that contains this prospectus, including the
exhibits to the registration statement, contains additional information about
our company and the securities offered under this prospectus. The registration
statement can be read at the SEC web site or at the SEC offices mentioned under
the heading "Where You Can Find More Information."
3
<PAGE> 5
THE MONY GROUP INC.
We are a Delaware corporation. We are the parent holding company of MONY
Life Insurance Company (formerly, The Mutual Life Insurance Company of New
York). On November 16, 1998, pursuant to a plan of reorganization which was
approved by the New York Superintendent of Insurance, The Mutual Life Insurance
Company of New York converted from a mutual life insurance company to a stock
life insurance company and became our wholly-owned subsidiary. We were organized
on June 24, 1997, for the purpose of becoming the parent holding company of MONY
Life Insurance Company. We have no other operations or subsidiaries. Also, on
November 16, 1998, The Mutual Life Insurance Company of New York changed its
name to MONY Life Insurance Company. At that same time, we completed an initial
public offering of approximately 12.9 million shares of our common stock. The
shares of common stock issued in our initial public offering are in addition to
approximately 34.3 million shares of common stock which we distributed in our
demutualization to some of our eligible policyholders in exchange for their
ownership interests in MONY Life Insurance Company.
Through MONY Life Insurance Company and its subsidiaries, we are primarily
engaged in the business of providing a wide range of life insurance, annuity,
and investment products to higher income individuals, particularly family
builders, pre-retirees, and small business owners. Our products and services are
primarily distributed through our career agency sales force, as well as other
complementary distribution channels (including brokerage general agents,
registered representatives, mutual fund wholesalers and our international sales
force). We principally sell our products in all 50 of the United States, the
District of Columbia, the U.S. Virgin Islands, Guam and the Commonwealth of
Puerto Rico. We currently insure or provide financial services to more than one
million people.
Our corporate offices are located at 1740 Broadway, New York, New York
10019, and our telephone number is (212) 708-2000.
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<PAGE> 6
RISK FACTORS
DIVIDENDS AND DEBT SERVICE PAYMENTS MAY BE AFFECTED BY LIMITATIONS IMPOSED ON
MONY LIFE INSURANCE COMPANY
Our company is an insurance holding company. The assets of our company
consist primarily of all of the outstanding shares of the common stock of MONY
Life Insurance Company. Our ongoing ability to pay dividends to our stockholders
and meet our obligations, including paying operating expenses and any debt
service, primarily depends upon the receipt of dividends from MONY Life
Insurance Company. Any inability of MONY Life Insurance Company to pay dividends
to us in the future in an amount sufficient for us to pay dividends to our
stockholders and meet our other obligations, including debt service obligations
such as payments of principal, premium, if any, and interest on any debt
securities issued pursuant to this prospectus, may materially adversely affect
our business, results of operations and financial condition.
The payment of dividends by MONY Life Insurance Company is regulated under
state insurance law. Under the New York Insurance Law, MONY Life Insurance
Company may pay a stockholder dividend to us only if it files notice of its
intention to declare a dividend and the amount of the dividend with the New York
Superintendent of Insurance. The New York Superintendent may prevent the payment
of the dividend. Under the New York Insurance Law, the New York Superintendent
has broad discretion in determining whether the financial condition of a stock
life insurance company would support the payment of that dividend. The New York
Insurance Department has established informal guidelines for the New York
Superintendent's determinations that focus on, among other things, an insurer's
overall financial condition and profitability under statutory accounting
practices. We cannot assure you that MONY Life Insurance Company will be able to
pay dividends to us in an amount sufficient to fund our cash requirements, pay
cash dividends and service our debt.
MONY Life Insurance Company of America is a subsidiary of MONY Life
Insurance Company and is regulated by the Arizona insurance laws. The Arizona
insurance laws contain similar restrictions on the ability of MONY Life
Insurance Company of America to pay dividends to MONY Life Insurance Company.
From time to time, the National Association of Insurance Commissioners and
various state insurance regulators have considered, and may in the future
consider and adopt, proposals to further restrict the making of dividend
payments by an insurer without regulatory approval. MONY Life Insurance
Company's ability to pay dividends to us will be further restricted if these
types of proposals are enacted.
THE DECLINE AND EXPIRATION OF PAYMENTS AND INCOME RELATED TO OUR GROUP PENSION
BUSINESS TRANSFERRED TO AEGON MAY REDUCE OUR PROFITS
On December 31, 1993, we entered into an agreement with AEGON USA, Inc.
Under the agreement, we transferred a substantial portion of our group pension
business to AEGON's wholly-owned subsidiary, AUSA Life Insurance Company, Inc.
The transaction was legally structured as a sale. However, for accounting
purposes, we continue to record the assets and liabilities comprising the
transferred business, and the related profits from the transferred business, in
our financial statements. The assets, liabilities and profits are recorded on
our financial statements because, pursuant to the terms of the agreement with
AEGON, we retained substantially all the risks and rewards of the transferred
business.
5
<PAGE> 7
On December 31, 1993, we also made a $200.0 million capital investment in
AEGON by purchasing $150.0 million face amount of Series A Notes and $50.0
million face amount of Series B Notes. The Series A Notes pay interest at 6.44%
per annum and the Series B Notes pay interest at 6.24% per annum. Both the
Series A and Series B Notes mature on December 31, 2002.
Pursuant to the AEGON agreement, we receive from AUSA:
(1) payments on an annual basis through December 31, 2002 equal to all of
the earnings from the deposits on contracts in force and transferred to
AEGON on December 31, 1993,
(2) a final payment at December 31, 2002 based on the remaining fair value
of the deposits on contracts in force and transferred to AEGON on
December 31, 1993, and
(3) a contingent payment at December 31, 2002 based on new business growth
subsequent to December 31, 1993. However, it is unlikely that we will
receive this payment because of the high level of new business growth
necessary in order to receive it.
With respect to the payments received in clause (1) above, the annual
earnings from the deposits are measured in accordance with an earnings formula
contained in the AEGON agreement. The earnings formula is substantially the same
as generally accepted accounting principals, except that:
- asset impairments on fixed maturity securities are only recognized when
such securities are designated with a rating of "6" by the National
Association of Insurance Commissioners, and
- no impairment losses are recognized on mortgage loans until those loans
are disposed of or at the time, and in the calculation, of the final
payment referred to in clause (2) above.
Earnings from the deposits on contracts in force and transferred to AEGON
on December 31, 1993 calculated pursuant to the application of the earnings
formula described above are recorded in our financial statements only after
adjustments. These adjustments primarily recognize asset impairments in
accordance with generally accepted accounting principles, specifically,
Statements of Financial Accounting Standards Nos. 114 and 115. As adjusted, the
earnings or "group pension profits" are reported in accordance with generally
accepted accounting principles. Losses which arise from the application of the
earnings formula for any annual period will be reflected in our results of
operations (after adjustments to reflect such losses in accordance with
generally accepted accounting principles) only up to the amount for which we are
at risk (as described below), which at any time is equal to the then outstanding
principal amount of the Series A Notes.
Operating losses reported in any annual period pursuant to the earnings
formula are carried forward to reduce any earnings in subsequent years reported
pursuant to the earnings formula. Any resulting deficit remaining at December
31, 2002 will be deducted from the final payment referred to in clause (2) above
and the contingent payment referred to in clause (3) above, if any. If a deficit
still remains, it will be applied as an offset against the principal payment we
are due upon maturity of the Series A Notes. The Series A Notes have been
allocated to the closed block.
The group pension profits have represented a significant portion of our net
income. For the nine-month periods ended September 30, 1999 and 1998 and the
years ended
6
<PAGE> 8
December 31, 1998, 1997 and 1996, AUSA reported earnings to us pursuant to the
application of the earnings formula of $21.4 million, $40.0 million, $49.8
million, $55.7 million and $66.7 million, respectively, and we recorded group
pension profits of $47.8 million, $34.1 million, $56.8 million, $60.0 million
and $59.5 million, respectively. The group pension profits represented 23.0%,
13.1%, 19.3%, 32.0% and 59.2% of income before income taxes and extraordinary
item for those periods, respectively. In addition, we expect the annual payments
referred to in clause (1) above, and in turn the group pension profits, to
decline in each succeeding annual period consistent with the continuing run-off
of the underlying business until they terminate as of December 31, 2002.
Accordingly, our financial position and results of operations could be adversely
affected unless we take actions which will increase our revenue and net income
in each succeeding year and, particularly, subsequent to December 31, 2002, to
replace the group pension profits.
CHANGES IN INTEREST RATES MAY SIGNIFICANTLY AFFECT OUR PROFITABILITY
In periods of increasing interest rates, policy loans and surrenders and
withdrawals may tend to increase as policyholders seek investments with higher
perceived returns. This process may result in cash outflows requiring that we
sell invested assets at a time when the prices of those assets are adversely
affected by the increase in market interest rates, which may result in realized
investment losses. Conversely, during periods of declining interest rates, life
insurance and annuity products may be relatively more attractive investments,
resulting in increased premium payments on products with flexible premium
features, repayment of policy loans and increased persistency during a period
when our new investments carry lower returns. In addition, borrowers may prepay
or redeem mortgages and bonds in our investment portfolio as they seek to borrow
at lower market rates, and we might have to reinvest those funds in lower
interest-bearing investments. Accordingly, during periods of declining interest
rates, a decrease in the spread between interest and dividend rates to
policyholders and returns on our investment portfolio may adversely affect our
profitability.
OUR INVESTMENT PORTFOLIO RAISES POTENTIAL RISKS
THE VALUE OF OUR INVESTMENT PORTFOLIO WILL FLUCTUATE
Our investment portfolio consists primarily of fixed maturity securities,
equity securities, limited partnership interests, money market investments,
commercial mortgage loans, agricultural mortgage loans and real estate. The fair
value of these and our other invested assets fluctuates depending on general
economic and market conditions. In addition, we are also subject to credit risk
relating to the uncertainty associated with the continued ability of debtors to
make timely payments pursuant to the contractual terms underlying these
investments.
With respect to our investments in fixed maturity securities and commercial
and agricultural mortgage loans, the market value of these investments generally
increases or decreases in an inverse relationship with fluctuations in interest
rates, and our net investment income increases or decreases in direct
relationship with interest rate changes.
We may, from time to time, for business, regulatory or other reasons, elect
or be required to sell some of our general account invested assets at a time
when their fair values are less than their carrying values, resulting in
realized losses on investments, which would reduce net income.
7
<PAGE> 9
WRITEDOWNS OF FIXED MATURITY SECURITIES MAY ADVERSELY AFFECT OUR PROFITABILITY
A portion of our invested assets consist of fixed maturity securities. We
write down to fair value fixed maturity securities whose value is deemed other
than temporarily impaired. We record these writedowns as realized investment
losses and, accordingly, we reflect those writedowns in our results of
operations and we permanently adjust the cost basis of the respective assets to
reflect the impairment. In the past we have recorded investment losses as a
result of writedowns. There can be no assurance that we will not need to make
additional writedowns for impairment with respect to our fixed maturity
securities. Any of these writedowns may have a material adverse effect on our
financial position and results of operations.
PREPAYMENT OF OUR MORTGAGE BACKED SECURITIES MAY ADVERSELY AFFECT OUR
PROFITABILITY
Our fixed maturity securities include mortgage backed securities,
collateralized mortgage obligations and pass-through securities. These
securities are subject to prepayment risks that vary with, among other things,
interest rates. During periods of declining interest rates, mortgage backed
securities generally prepay faster as the underlying mortgages are prepaid and
are refinanced by the borrowers in order to take advantage of the lower rates.
Mortgage backed securities that we purchase at a premium because they have an
amortized cost that is greater than par, may experience a reduction in yield or
a loss as a result of these prepayments. In addition, during periods of
declining interest rates, we will generally be unable to reinvest the proceeds
of the prepayment at comparable yields. Conversely, during periods of rising
interest rates, prepayments are generally slow. Mortgage backed securities that
we purchase at a discount because they have an amortized value that is less than
par, may experience a decrease in yield or a loss as a result of slower
prepayments.
GENERAL MARKET CONDITIONS MAY ADVERSELY AFFECT OUR INVESTMENTS IN LIMITED
PARTNERSHIPS
We have investments in many limited partnerships. Investment results for
this portfolio are dependent upon, among other things, general market conditions
for initial and secondary offerings of common stock. In the past we earned
significant investment income from investments in limited partnership interests.
There can be no assurance that the recent level of investment returns achieved
on limited partnership investments can be sustained in the future, and the
failure to do so could have a material adverse effect on our financial position
and results of operations.
FLUCTUATIONS IN MARKET VALUE OF SEPARATE ACCOUNT ASSETS MAY RESULT IN
FLUCTUATIONS IN OUR REVENUE FROM POLICY CHARGES
The risk of fluctuations in market value of substantially all of our
separate account assets is borne by the separate account contract holders. A
number of our policy charges for administering these separate account assets,
however, are set as a percentage of market value of the assets. Accordingly,
fluctuations in the market value of separate account assets may result in
fluctuations in our revenue from policy charges.
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<PAGE> 10
WE MAY BE ADVERSELY AFFECTED BY THE DECLINE IN VALUE OF OUR REAL ESTATE
INVESTMENTS
WRITEDOWNS OF REAL ESTATE HELD FOR INVESTMENT WOULD REDUCE OUR NET INCOME
We are subject to the risk that our investments in real estate may decline
in value. We generally adjust the carrying value of real estate classified as
held for investment for declines in value whenever events or changes in
circumstances indicate that the carrying amount of the asset may not be
recoverable. We record these writedowns as realized investment losses, which
would reduce our net income.
INCREASES IN VALUATION ALLOWANCES WOULD REDUCE OUR NET INCOME
Once we identify a real estate property to be sold and commence a plan for
marketing the property, the property is classified as "to be disposed of" and,
if necessary, a valuation allowance is established to the extent that its fair
value minus associated selling costs is less than its current carrying value.
These valuation allowances are periodically revised, if necessary, to reflect
changes in fair value, except that, in no case will the carrying value of the
real estate property exceed its original cost. Increases in valuation allowances
serve to reduce our net income.
ANY FUTURE SALES OF REAL ESTATE COULD RESULT IN GAAP OR STATUTORY LOSSES
Because we adjust carrying values to reflect valuation allowances, we
expect the net proceeds from sales of real estate will not be materially
different from the carrying value of the real estate on a generally accepted
accounting principles basis. However, we cannot assure you that increases in
valuation allowances will not be required in the future or that future sales of
real estate will not be made at amounts below recorded GAAP carrying value,
which may have a material adverse effect on our financial position and results
of operations.
The accounting practices we use in our regulatory filings with the New York
Insurance Department are different from GAAP. The carrying value of real estate
on a statutory basis exceeds the carrying value of these investments on a GAAP
basis. Because of this difference in accounting treatment, we expect to incur
losses on a statutory basis as a result of anticipated real estate sales. These
losses could materially affect our statutory basis surplus and net income.
We cannot give you any assurance as to whether, when or for what amounts
any real estate that is classified as to be disposed of will actually be
disposed of.
WE MAY BE ADVERSELY AFFECTED BY THE DECLINE IN VALUE OF OUR COMMERCIAL MORTGAGE
LOAN INVESTMENTS
We are subject to the risk that our investments in commercial mortgage
loans will decline in value. Commercial mortgage loans are stated at their
unpaid principal balances, net of valuation allowances for decline in value. We
provide valuation allowances for commercial mortgage loans when it is probable
that we will be unable to collect all amounts due according to the contractual
terms of the loan agreement. Increases in valuation allowances are recorded as
realized investment losses and serve to reduce our net income.
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<PAGE> 11
THE EXPIRATION OF SURRENDER PENALTIES WITH RESPECT TO SOME OF OUR ANNUITIES
COULD RESULT IN SURRENDERS WHICH MAY REDUCE OUR PROFITS
We typically impose surrender charges on the annuities we sell. The
surrender charges enable us to recover unamortized policy acquisition costs in
the event that the annuity is surrendered before policy acquisition costs are
fully amortized. In addition, the surrender charges discourage contract
surrenders, which could require us to dispose of assets prematurely at a loss.
As surrender penalties expire it is likely that surrenders of single premium
deferred annuities and flexible payment variable annuities will increase. A
substantial increase in surrenders may reduce our profits.
WE MAY BE REQUIRED TO ADD ASSETS TO THE CLOSED BLOCK IN THE EVENT THAT THE
ASSETS THEREIN ARE NOT SUFFICIENT TO PAY GUARANTEED BENEFITS
The plan of demutualization requires MONY Life Insurance Company to
establish and operate a closed block for the benefit of certain policyholders
holding participating insurance policies of MONY Life Insurance Company. The
closed block is designed to give reasonable assurance with respect to policies
included in the closed block that assets will be available to maintain dividend
scales payable at the time we funded the closed block if the experience
underlying such dividend scales continues. The amount of assets we allocated to
the closed block is expected to produce cash flows which, together with
anticipated revenues from the policies included in the closed block, are
reasonably expected to be sufficient:
- for the payment of claims and surrender benefits, certain expenses and
taxes, and
- to provide for the continuation of the policyholder dividend scales
payable in 1998, if the experience underlying those scales continues, and
for appropriate adjustments in those scales if the experience changes.
The closed block assets, the cash flows generated by the closed block
assets and the anticipated revenues from the policies in the closed block will
benefit only the holders of those policies, and will not be available to us or
our stockholders.
We cannot assure that the closed block assets, the cash flows generated by
the closed block assets and the anticipated revenues from the policies included
in the closed block will be sufficient to provide for the benefits guaranteed
under these policies. If they are not sufficient, we must fund the shortfall.
Even if they are sufficient, we may choose, for competitive reasons, to support
policyholder dividend payments with our general account funds. As described
below, there is currently pending litigation against us which seeks to require
us to increase the assets in the closed block.
We have allocated the Series A Notes described above to the closed block.
We will reimburse the closed block from our general account assets for any
reduction in principal payments due on the Series A Notes pursuant to their
terms.
LITIGATION CHALLENGING THE NEW YORK SUPERINTENDENT'S ORDER APPROVING THE PLAN OF
DEMUTUALIZATION MAY HAVE A MATERIAL ADVERSE EFFECT ON US
On November 16, 1999, The MONY Group Inc. and MONY Life Insurance Company
were served with a complaint in an action entitled Calvin Chatlos, M.D., and
Alvin H. Clement, On Behalf of Themselves And All Others Similarly Situated v.
The MONY Life Insurance Company, The MONY Group Inc., and Neil D. Levin,
Superintendent, New York Department of Insurance, filed in the United States
District Court for the Southern District of New York. The action purports to be
brought as a class action on
10
<PAGE> 12
behalf of all individuals who had an ownership interest in one or more in-force
life insurance policies issued by MONY Life Insurance Company as of November 16,
1998. The complaint alleges that (i) the New York Superintendent of Insurance,
Neil D. Levin, violated Section 7312 of the New York Insurance Law by approving
the plan of demutualization, which plaintiffs claim was not fair and adequate,
primarily because it allegedly failed to provide for sufficient assets for the
mechanism established under the plan to preserve reasonable dividend
expectations of the closed block, and (ii) we violated Section 7312 by failing
to develop and submit to the Superintendent a plan of demutualization that was
fair and adequate. The plaintiffs seek equitable relief in the form of an order
vacating and/or modifying the Superintendent's order approving the plan of
demutualization and/or directing the Superintendent to order us to increase the
assets in the closed block, as well as unspecified monetary damages, attorneys'
fees and other relief.
In order to challenge successfully the New York Superintendent's approval
of the plan, plaintiffs would have to sustain the burden of showing that such
approval was arbitrary and capricious or an abuse of discretion, made in
violation of lawful procedures, affected by an error of law or not supported by
substantial evidence. In addition, Section 7312 provides that we may ask the
court to require the challenging party to give security for the reasonable
expenses, including attorneys' fees, which may be incurred by us or the
Superintendent or for which we may become liable, to which security we shall
have recourse in such amount as the court shall determine upon the termination
of the action.
Our time to answer or move to dismiss the complaint has not yet occurred.
We believe that there are substantial defenses to plaintiffs' claims and intend
to defend ourselves vigorously. An adverse outcome in this action could,
however, have a material adverse effect on us.
LITIGATION WITH RESPECT TO OUR SALES PRACTICES MAY AFFECT OUR PROFITABILITY
Since late 1995 a number of purported class actions have been commenced in
various state and federal courts against us alleging that we engaged in
deceptive sales practices in connection with the sale of whole and universal
life insurance policies from the early 1980s through the mid 1990s. Although the
claims asserted in each case are not identical, they seek substantially the same
relief under essentially the same theories of recovery (i.e., breach of
contract, fraud, negligent misrepresentation, negligent supervision and
training, breach of fiduciary duty, unjust enrichment and violation of state
insurance and/or deceptive business practice laws). Plaintiffs in these cases
seek primarily equitable relief (e.g., reformation, specific performance,
mandatory injunctive relief prohibiting us from canceling policies for failure
to make required premium payments, imposition of a constructive trust and
creation of a claims resolution facility to adjudicate any individual issues
remaining after resolution of all class-wide issues) as opposed to compensatory
damages, although they also seek compensatory damages in unspecified amounts. We
have answered the complaints in each action (except for one being voluntarily
held in abeyance). We have denied any wrongdoing and have asserted numerous
affirmative defenses.
On June 7, 1996, the New York State Supreme Court certified one of those
cases, Goshen v. The Mutual Life Insurance Company of New York and MONY Life
Insurance Company of America, the first of the class actions filed, as a
nationwide class consisting of all persons or entities who have, or at the time
of the policy's termination had, an ownership interest in a whole or universal
life insurance policy issued by us and sold on an
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alleged "vanishing premium" basis during the period January 1, 1982 to December
31, 1995. On March 27, 1997, we filed a motion to dismiss or, alternatively, for
summary judgment on all counts of the complaint. All of the other putative class
actions have been consolidated and transferred by the Judicial Panel on
Multidistrict Litigation to the United States District Court for the District of
Massachusetts and/or are being held in abeyance pending the outcome of the
Goshen case.
On October 21, 1997, the New York State Supreme Court granted our motion
for summary judgment and dismissed all claims filed in the Goshen case against
us. On December 20, 1999, the New York State Court of Appeals affirmed the
dismissal of all but one of the claims in the Goshen case (a claim under New
York's General Business Law), which has been remanded back to the New York State
Supreme Court for further proceedings consistent with the opinion. We intend to
defend ourselves vigorously against the sole remaining claim. There can be no
assurance, however, that the present litigation relating to sales practices will
not have a material adverse effect on us.
VARIATIONS IN CLAIMS EXPERIENCE WILL AFFECT OUR RESULTS FROM PERIOD TO PERIOD
An insurance company's earnings significantly depend upon the claims paid
under its insurance contracts. Amounts paid will vary from period to period
depending upon the amount of claims incurred in the relevant periods. Therefore,
there is limited predictability of claims experience within any given month or
year. As a result, we anticipate that our financial results may vary from period
to period and that those variations may be material in any given period. We use
certain assumptions in pricing our products. There can be no assurance that
actual experience will match our assumptions made for pricing purposes and, to
the extent that they differ, our operating results could be materially adversely
affected.
WE ARE HIGHLY REGULATED AND THAT REGULATION MAY LIMIT OUR FREEDOM OF ACTION
Our insurance business is subject to comprehensive state regulation and
supervision throughout the U.S. The primary purpose of such regulation is to
protect policyholders, not securityholders. The laws of the various states
establish insurance departments with broad powers with respect to:
- licensing companies to transact business;
- licensing agents;
- admitting statutory assets;
- mandating certain insurance benefits;
- regulating premium rates;
- approving policy forms;
- regulating unfair trade and claims practices;
- regulating advertising;
- establishing statutory reserve requirements and solvency standards;
- fixing maximum interest rates on life insurance policy loans and minimum
rates for accumulation of surrender values;
- restricting certain transactions between affiliates; and
- regulating the types, amounts and statutory valuation of investments.
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<PAGE> 14
The U.S. Federal government does not directly regulate the insurance
business. However, Federal legislation and administrative policies in certain
areas can significantly and adversely affect the insurance industry generally
and us in particular. These areas include employee benefit plan regulation,
financial services regulation and Federal taxation and securities laws.
MONY Life Insurance Company, some of its subsidiaries and some policies and
contracts offered by them are subject to various levels of regulation under the
Federal securities laws administered by the Securities and Exchange Commission.
These laws and regulations are primarily intended to protect investors in
securities and generally grant supervisory agencies broad administrative powers,
including the power to limit or restrict the conduct of business for failure to
comply with such laws and regulations. We may also be subject to similar laws
and regulations in the states we provide investment advisory services, offer
products or conduct other securities-related activities.
All of these regulations may limit our freedom of action.
CHANGES IN STATE AND FEDERAL REGULATION MAY AFFECT OUR PROFITABILITY
State insurance regulators and the National Association of Insurance
Commissioners continually reexamine existing laws and regulations, and may
impose changes in the future. Additionally, the passage from time to time of new
legislation may adversely affect our claims exposure on our policies. We cannot
predict the impact of future state or Federal laws or regulations on our
business. Future laws and regulations, or the interpretation thereof, may
materially adversely affect our business, results of operations and financial
condition.
WE MAY BE UNABLE TO ATTRACT AND RETAIN AGENTS TO SELL OUR PRODUCTS
We must attract and retain productive agents to sell our insurance and
annuity products. Strong competition exists among insurance companies for agents
with demonstrated ability. Our management believes that key bases of competition
among insurance companies for agents with demonstrated ability include a
company's financial position and the services provided to, and relationships
developed with, these agents in addition to compensation and product structure.
Changes arising from the realignment of our career agency sales force, the
restructuring of agent compensation and the ability to obtain state regulatory
approvals for new products may affect our ability to retain productive
distributors of our individual insurance and annuity products. Sales of
individual insurance and annuity products and our financial position and results
of operations could be materially adversely affected by those changes.
COMPETITIVE FACTORS MAY ADVERSELY AFFECT OUR BUSINESS
We believe that competition in our business segments is based on service,
product features, price, commission structure, financial strength, claims paying
ability ratings and name recognition. We compete with a large number of other
insurers, as well as non-insurance financial services companies, such as banks,
broker-dealers and asset managers, for individual customers, employer and other
group customers and agents and other distributors of insurance and investment
products. Some of these companies offer a broader array of products, have more
competitive pricing or, with respect to other insurers, have higher claims
paying ability ratings. Some may also have greater financial resources with
which to compete.
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<PAGE> 15
COMPETITION FROM NON-INSURANCE FINANCIAL SERVICES COMPANIES MAY ADVERSELY AFFECT
OUR BUSINESS
National banks, with their pre-existing customer bases for financial
services products, may increasingly compete with insurers, as a result of court
cases that permit national banks to sell annuity products of life insurance
companies in some circumstances.
In addition there has been recently-enacted legislation removing
restrictions on bank affiliations with insurers. This legislation, the
Gramm-Leach-Bliley Act of 1999, permits mergers that combine commercial banks,
insurers and securities firms under one holding company. Until passage of the
Gramm-Leach-Bliley Act, the Glass-Steagall Act of 1933 had limited the ability
of banks to engage in securities-related businesses, and the Bank Holding
Company Act of 1956 had restricted banks from being affiliated with insurance
companies. With the passage of the Gramm-Leach-Bliley Act bank holding companies
may acquire insurers, and insurance holding companies may acquire banks. The
ability of banks to affiliate with insurance companies may materially adversely
affect all of our product lines by substantially increasing the number, size and
financial strength of potential competitors.
A DOWNGRADE IN OUR RATINGS MAY ADVERSELY AFFECT OUR ABILITY TO MARKET OUR
PRODUCTS AND RETAIN OUR CURRENT POLICYHOLDERS
Claims-paying ability and financial strength ratings are an important
factor in establishing the competitive position of insurance companies. Ratings
are important to maintaining public confidence in our company and in our ability
to market our products. Rating organizations continually review the financial
performance and condition of insurance companies, including our company. Any
downgrade in our ratings could have a material adverse effect on our ability to
market our products and retain our current policyholders. These consequences
could, depending upon their extent, have a material adverse effect on our
liquidity and, under some situations, net income.
CHANGES IN FEDERAL INCOME TAXATION COULD ADVERSELY IMPACT SALES OF OUR
INSURANCE, ANNUITIES AND INVESTMENT PRODUCTS
Current Federal income tax laws generally defer income tax on any
accumulation of earnings on the premiums paid by the holders of annuities and
life insurance products. Taxes, if any, are payable when earnings are actually
paid. Congress has, from time to time, considered possible legislation that
would eliminate this deferral of taxation for certain annuities and life
insurance products. Enactment of other possible legislation, including a
simplified "flat tax" income structure with an exemption from taxation for
investment income and elimination of, or reduction in, the estate tax, could
also adversely affect purchases of life insurance. We cannot foresee whether
Congress will enact legislation or, whether such legislation, if enacted, will
contain provisions with possible adverse effects on our life insurance and
annuity products.
WE CANNOT ASSURE YOU THAT THE IMPACT OF THE YEAR 2000 DATE CHANGE ON COMPUTER
SYSTEMS WILL NOT HAVE A NEGATIVE IMPACT ON OUR BUSINESS OPERATIONS
Many computer systems and software products were coded to accept only two
digit entries in the year code field. These date code fields will need to accept
four digit entries to distinguish 21st century dates from 20th century dates. We
and third parties with whom we do business rely on numerous computer programs in
our day-to-day operations. Due to the proximity of the date of this prospectus
to January 1, 2000, we continue to monitor
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<PAGE> 16
year 2000 issues as they relate to our internal computer systems and third party
computer systems with whom we interact.
We believe that completed and planned modifications and conversions of our
internal systems and equipment will allow us to be year 2000 compliant in a
timely manner. There can be no assurance, however, that our internal systems or
equipment will be entirely error-free, or those external parties on which we
rely will be year 2000 compliant in a timely manner, or that our or external
parties' contingency plans will mitigate sufficiently the effects of any
noncompliance. Based upon currently available information and considering our
year 2000 project status, management believes that the year 2000 issue will not
impact business operations. However, there is still the possibility that future
year 2000 related failures in our systems or equipment and/or failure of
external parties to achieve year 2000 compliance could have a material adverse
effect on us.
We retained outside consultants to assist in the development of business
continuity plans, which include identification of third party service providers,
information systems, equipment, facilities and other items which are
mission-critical to the operation of our business. In conjunction with this
effort, we developed a year 2000 contingency plan to address year 2000 related
failures of third parties, among other factors that are critical to the ongoing
operation of the business. Our contingency plan provides alternate means of
processing critical work and services, as well as a methodology for selection
and retention of alternate service providers, vendors, and suppliers, if
necessary. Additional maintenance and refinement of business continuity plans
will continue in 2000. We believe that due to the pervasive and evolving nature
of potential year 2000 issues, the contingency planning process is an ongoing
one that will require further modifications as we obtain additional information
regarding the status of third party year 2000 readiness.
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<PAGE> 17
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at:
<TABLE>
<S> <C> <C>
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Washington, D.C. 20549 Suite 1300 500 West Madison Street
New York, New York 10048 Suite 1400
Chicago, Illinois 60661
</TABLE>
You may also obtain copies of this information at prescribed rates by
writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C., 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference facilities.
Our SEC filings are also available at the office of the New York Stock
Exchange. For further information on obtaining copies of our public filings at
the New York Stock Exchange you should call (212) 656-5060.
No separate financial statements of MONY Capital Trust I or MONY Capital
Trust II are included in this prospectus. We consider that financial statements
of the Trusts would not be material to holders of the trust preferred securities
because each Trust has no independent operations and exists for the sole purpose
of investing the proceeds of the sale of its trust preferred securities in
junior subordinated notes.
The SEC allows us to "incorporate by reference" information into this
prospectus which we file with the SEC. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus and
information that we file later with the SEC will automatically update and
supersede the information in this prospectus.
We incorporate by reference the documents listed below that we previously
filed with the SEC. These documents contain important information about our
business and our financial performance.
<TABLE>
<CAPTION>
THE MONY GROUP INC.'S
SEC FILINGS PERIOD
--------------------- ------
<S> <C>
Quarterly Reports on Form 10-Q.... Quarters ended September 30, 1999,
June 30, 1999 and March 31, 1999
Annual Report on Form 10-K........ Year ended December 31, 1998
</TABLE>
You may request a free copy of any of these filings or any other
information incorporated by reference in this prospectus from us by calling us
or writing to us at the following address and telephone number:
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Attention: Derrick Vializ
Telephone: (212) 708-2000
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<PAGE> 18
We also incorporate by reference any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(1) after the date of the filing of the registration statement and before its
effectiveness and (2) until we have sold all of the securities to which this
prospectus relates or the offering is otherwise terminated. Our subsequent
filings with the SEC will automatically update and supersede information in this
prospectus.
You should rely only on the information contained in this document,
incorporated by reference into this document or set forth in the applicable
prospectus supplement. We have not authorized anyone to give you different
information. Therefore, if anyone does provide you with different or
inconsistent information, you should not rely on it. We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement.
We are only offering these securities in states where the offer is permitted.
The information contained in this prospectus and the applicable prospectus
supplement speaks only as of the dates on the front of those documents.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the information included and incorporated by reference in this
prospectus and other written and oral statements made from time to time by us
contain "forward-looking statements" as defined by the Private Securities
Litigation Reform Act of 1995. Forward-looking statements include, among other
things, discussions concerning our potential exposure to market risks, as well
as statements expressing our expectations, beliefs, estimates, forecasts,
projections and assumptions. Forward-looking statements can be identified by the
use of words such as "anticipate," "believe," "estimate," "expect," "intend,"
"may," "could," "possible," "plan," "project," "will," "forecast" and similar
words or expressions. Forward-looking statements are only predictions. Our
forward-looking statements generally relate to our operations, economic
performance and financial condition. You should carefully consider
forward-looking statements and understand that actual events or results may
differ materially as a result of a variety of risks and uncertainties, known and
unknown, and other factors facing our company. Many of those factors are noted
in conjunction with the forward-looking statements in the text. It is not
possible to foresee or identify all factors affecting our forward-looking
statements and investors therefore should not consider any list of factors
affecting our forward-looking statements to be an exhaustive statement of all
risks or uncertainties.
Although we cannot give a comprehensive list of all factors that may cause
actual results to differ from our forward-looking statements, the factors
include those noted in our SEC filings incorporated by reference into this
prospectus, as well as:
- losses with respect to our equity real estate, and the success of our
continuing process of selectively selling our equity real estate;
- the success of the restructuring of our career agency sales force, and
our ability to attract and retain productive agents;
- the success of the restructuring of agent compensation;
- our ability to control operating expenses;
- the outcome of pending litigation;
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<PAGE> 19
- deterioration in the experience of the "closed block" established in
connection with the demutualization of our subsidiary MONY Life Insurance
Company;
- the performance of the financial markets;
- the intensity of competition from other financial institutions;
- our mortality, morbidity, persistency and claims experience;
- our ability to develop, distribute and administer competitive products
and services in a timely, cost-effective manner;
- our financial and claims paying ratings;
- the effect of changes in laws and regulations affecting our businesses,
including changes in tax laws affecting insurance and annuity products;
- market risks related to interest rates, equity prices, derivatives,
foreign currency exchange and credit; and
- our ability to identify and consummate on successful terms any future
acquisitions, and to successfully integrate acquired businesses with
minimal disruption.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------- --------------------------------
1999 1998 1998 1997 1996 1995 1994
----- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.......... 7.4 8.6 7.5 5.9 2.8 2.1 2.2
</TABLE>
For purposes of calculating the ratios, fixed charges consist of interest
on debt, accretion of discount on debt and the interest portion of rental
expense on operating leases.
The ratio of earnings to fixed charges is calculated as follows:
(income before extraordinary charges and income taxes) + (fixed
charges) - (capitalized interest)
- --------------------------------------------------------------------------------
(fixed charges)
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THE TRUSTS
MONY Capital Trust I and MONY Capital Trust II are statutory business
trusts created under Delaware law pursuant to the filing of a certificate of
trust with the Delaware Secretary of State on January 10, 2000. Each Trust's
business is defined in a trust agreement, executed by us, as depositor, and the
Delaware trustee of the Trust. The trust agreement of each Trust will be amended
and restated in its entirety substantially in the form filed as an exhibit to
the registration statement. Each trust agreement will be qualified as an
indenture under the Trust Indenture Act. We will own all the common securities
of each Trust.
The trust preferred securities will represent undivided beneficial
interests in the assets of the respective Trusts. Upon the effectiveness of the
amended and restated trust agreement, each Trust will exist for the exclusive
purposes of:
- selling and issuing its trust preferred securities;
- investing the gross proceeds of its trust preferred securities in a
related series of junior subordinated notes; and
- engaging in only those other activities which are necessary, appropriate,
convenient or incidental to the purpose set forth above.
The payment of periodic cash distributions on the trust preferred
securities and payments on liquidation and redemption with respect to the trust
preferred securities, in each case to the extent each Trust has funds legally
and immediately available, will be guaranteed by us to the extent set forth
under "Description of the Guarantees."
Each Trust's business and affairs will be conducted by the following
securities trustees, who will be appointed by us as the holder of the common
securities:
- two officers of our company as administrative trustees;
- The Chase Manhattan Bank as property trustee; and
- Chase Manhattan Bank Delaware as Delaware trustee.
We, as holder of all of the outstanding common securities of each Trust,
will have the right to appoint, remove or replace any trustee and to increase or
decrease the number of trustees, provided that each Trust always will have at
least one trustee. Furthermore, we, as issuer of the junior subordinated notes,
will pay all fees and expenses related to the Trust's ongoing affairs and
operations, including any taxes, duties, assessments or governmental charges of
whatever nature, other than withholding taxes, including the offering of the
trust preferred securities.
The principal place of business of each Trust will be:
c/o The MONY Group Inc.
1740 Broadway
New York, New York 10019
Attention: David Weigel
Telephone (212) 708-2000
Please read the prospectus supplement relating to the trust preferred
securities for further information concerning the trust preferred securities.
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<PAGE> 21
ACCOUNTING TREATMENT OF TRUSTS
For financial reporting purposes,
- the Trusts will be treated as subsidiaries of our company, and
- the accounts of the Trusts will be included in our consolidated financial
statements.
The trust preferred securities will be presented as a separate line item in
our consolidated balance sheet, and appropriate disclosures concerning the trust
preferred securities, the junior subordinated notes and the guarantees will be
included in the notes to the consolidated financial statements. For financial
reporting purposes, we will record distributions payable on the trust preferred
securities as an expense.
USE OF PROCEEDS
Each Trust will invest the proceeds received from the sale of its trust
preferred securities in junior subordinated notes. Unless the applicable
prospectus supplement states otherwise, the net proceeds received by us from
this investment and any proceeds received from the sale of our senior notes,
junior subordinated notes, preferred stock or common stock will be added to our
general funds and may be used for general corporate purposes, including, without
limitation, for acquisitions.
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DESCRIPTION OF THE SENIOR NOTES
This section describes the general terms and provisions of our senior notes
that may be offered by this prospectus. When we offer to sell a particular
series of senior notes, we will describe the specific terms of the series in a
supplement to this prospectus. We will also indicate in the supplement whether
the general terms and provisions described in this section apply to that
particular series of senior notes.
The senior notes offered hereby will be issued under the Senior Note
Indenture, dated as of January 11, 2000, between us and The Chase Manhattan
Bank, as trustee. The senior note indenture is subject to, and governed by, the
Trust Indenture Act. We have filed a copy of the senior note indenture as an
exhibit to the registration statement. We have summarized selected portions of
the senior note indenture below. The summary is not complete. You should read
this description of the senior notes, the senior note indenture and the
prospectus supplement that relates to the applicable series of the senior notes
before you buy any senior notes.
GENERAL
The senior notes will be direct, unsecured obligations of our company. The
indebtedness represented by the senior notes will rank equal to all other
unsecured and unsubordinated senior indebtedness of our company. The senior
notes will be effectively subordinated to all secured debt, if any, of our
company. As of today, we have no secured debt outstanding. The senior note
indenture does not limit the total principal amount of senior notes that we may
issue under the senior note indenture and permits us to issue senior notes from
time to time. Senior notes issued under the prospectus supplement will be issued
as part of a series that has been established pursuant to the senior note
indenture.
A prospectus supplement relating to a series of senior notes being offered
will include specific terms relating to the offering. These terms will include
some or all of the following:
- the title;
- any limit on the total principal amount;
- to whom interest is payable if other than the person to whom the senior
note is registered;
- the date or dates on which the principal is payable and the right, if
any, to extend or advance maturity;
- if interest bearing:
- the interest rate;
- the method by which the interest rate will be determined;
- the date from which interest will accrue;
- interest payment dates;
- the regular record date for the interest payable on any interest
payment date;
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<PAGE> 23
- the basis on which interest will be calculated if other than that of a
360-day year consisting of twelve 30-day months; and
- the first interest payment date;
- the place or places where the principal of, premium, if any, and
interest, if any, will be payable;
- the period or periods during which the price or prices at which and the
terms and conditions on which the senior notes may be redeemed, in whole
or in part, at the option of our company;
- the obligation, if any, of our company to redeem or purchase the senior
notes under any sinking fund or similar provision or at the option of a
holder and the details of that obligation;
- the denominations in which the senior notes will be issuable;
- if other than the principal amount, the portion of the principal amount
of the senior notes which will be payable upon declaration of
acceleration of the maturity;
- any deletions from, modifications of or additions to the events of
default or covenants of our company as provided in the senior note
indenture pertaining to the senior notes;
- any restrictions or conditions on transferability;
- whether the senior notes will be issued in whole or in part in the form
of a senior global security (a senior note that we may issue in
accordance with the senior note indenture to represent all or part of a
series of senior notes); and
- any other terms of the senior notes.
The senior note indenture does not contain provisions that afford holders
of senior notes protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving our
company or our subsidiaries that may adversely affect holders of the senior
notes or that would limit our ability or our subsidiaries' ability to incur
indebtedness.
EVENTS OF DEFAULT
The senior note indenture provides that with respect to any series of
senior notes, an event of default includes:
- failure to pay interest on any senior note of that series after the
payment is due and payable on an interest payment date other than at
maturity and this default continues for 30 days;
- failure to pay the principal of or any premium on any senior note of that
series when due;
- failure to deposit any sinking fund payment when due and this default
continues for 3 business days;
- failure to perform or breach of any covenant or warranty of our company
in the senior note indenture, other than a covenant or warranty which has
expressly been
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<PAGE> 24
included in the senior note indenture solely for the benefit of one or
more series of senior notes other than such series, for 90 days after we
have received written notice from the senior note indenture trustee or
the holders of 25% or more in total principal amount of the outstanding
senior notes of that series;
- specified events of bankruptcy, insolvency, or reorganization of our
company; and
- any other event of default provided with respect to senior notes of that
series in the supplemental indenture authorizing such series.
The holders of 25% or more in total principal amount of the outstanding
senior notes of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the senior note indenture trustee
with respect to the senior notes of that series.
If a senior note indenture event of default occurs and is continuing with
respect to the senior notes of any series, then the senior note indenture
trustee or the holders of 25% or more in total outstanding principal amount of
the senior notes of the series may declare the principal amount due and payable
immediately by notice in writing to us, and to the senior note indenture trustee
if given by the holders, and upon any such declaration the principal amount or
specified amount will become immediately due and payable.
At any time after a declaration of acceleration with respect to the senior
notes of any series has been made and before a judgment or decree for payment of
the money due has been obtained as provided in Article Five of the senior note
indenture, the holders of 50% or more in total outstanding principal amount of
the senior notes of the series may rescind and annul the declaration and its
consequences if each of the following has occurred:
- the default has been cured or waived; and
- we have paid or deposited with the senior note indenture trustee
- a sum sufficient to pay all matured installments of interest,
including any additional interest, and principal, or premium, if any,
due otherwise than by acceleration, and
- all sums paid or advanced by the senior note indenture trustee,
including reasonable compensation and expenses of the senior note
indenture trustee.
The holders of 50% or more in total outstanding principal amount of the
senior notes of any series may, on behalf of the holders of all the senior notes
of the series, waive any past default with respect to the series, except:
- a default in the payment of principal, or premium, if any, or interest on
any senior notes of the series; or
- a default in respect of a covenant or provision which under Article Nine
of the senior note indenture cannot be modified or amended without the
consent of the holder of each outstanding senior note of the series
affected by it.
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REGISTRATION AND TRANSFER
We will not be required to do the following:
- issue, register the transfer of or exchange senior notes of any series
during a period of 15 days immediately prior to the date notice is given
identifying the senior notes of the series called for redemption; or
- issue, register the transfer of or exchange any senior notes selected for
redemption, in whole or in part, except the unredeemed portion of any
senior note being redeemed in part.
PAYMENT AND PAYING AGENT
Unless otherwise described in the prospectus supplement, we will pay the
principal of any senior notes only against surrender to the paying agent of the
senior notes. We will pay the principal of, premium, if any, and interest on
senior notes, subject to any applicable laws and regulations, at the office of
the paying agent or paying agents as we designate, except that at our option, we
will pay any interest by wire transfer or by check mailed to the address of the
person entitled to that payment at the address of that person which appears in
the security register with respect to the senior notes.
We will pay interest on senior notes on any interest payment date only to
the person in whose name the senior notes, or predecessor security, are
registered at the close of business on the record date for the interest payment
which is the fifteenth day before that interest payment date.
Unless otherwise indicated in the prospectus supplement, the senior
indenture trustee will be the paying agent with respect to the senior notes. We
may at any time designate additional paying agents or rescind the designation of
any paying agents or approve a change in the office through which any paying
agent acts.
All moneys paid by us to a paying agent for the payment of the principal
of, premium, if any, or interest on the senior notes of any series which remain
unclaimed at the end of two years after such principal, premium, if any, or
interest has become due and payable will be repaid to us, and after the
repayment, the holder of the senior notes may look only to us for payment of
principal of, premium, if any, or interest on the senior notes.
MODIFICATION
The senior note indenture provides that we may modify or amend our rights
and obligations and the rights and obligations of the holders of the senior
notes with the consent of the holders of 50% or more of the total principal
amount of the outstanding senior notes of each series affected by the
modification. However, we may not modify or amend the senior note indenture for
any of the following purposes without prior consent of each holder of the series
of senior notes:
- to change the stated maturity of the principal of or any installment of
principal of, premium, if any, or interest on or any premium payable upon
any senior note;
- to reduce the principal amount of or the rate of interest of or any
premium payable upon any redemption of, any senior notes;
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- to change the method of calculating the rate of interest of, or impair
the right to institute suit for the enforcement of any payment on or
after the stated maturity of, any senior note, or, in the case of
redemption, on or after the redemption date;
- to reduce the percentage in principal amount of the outstanding senior
notes of any series, the consent of whose holders is required for
- any supplemental indenture;
- any waiver of compliance with specified provisions of the senior note
indenture; or
- any waiver of specified defaults under the senior note indenture and
their consequences provided for in the senior note indenture; or
- to modify any of the provisions of the sections of the senior note
indenture relating to
- supplemental indentures,
- the waiver of past defaults, or
- the waiver of specified covenants,
except to increase any such percentage or to provide that specified other
provisions of the senior note indenture cannot be modified or waived
without the consent of the holder of each outstanding senior note affected
by that modification or waiver.
CONSOLIDATION, MERGER AND SALE
The senior note indenture provides that we may not merge or consolidate or
sell, convey, transfer or lease all or substantially all of our properties and
assets unless:
- we are the successor corporation or the successor corporation is a
domestic corporation which assumes our company's obligations on the
senior notes and under the senior note indenture;
- after giving effect to the merger, consolidation, sale, conveyance,
transfer or lease of all or substantially all of our properties and
assets, no event of default, and no event which, after notice or lapse of
time or both, would become an event of default, will have happened and be
continuing; and
- we have delivered to the senior note indenture trustee an officer's
certificate and an opinion of counsel, each stating that the merger,
consolidation, sale, conveyance, transfer or lease of all or
substantially all of our properties and assets complies with the
provisions of the senior note indenture governing consolidation, merger,
conveyance, transfer or lease and that all conditions precedent have been
complied with.
INFORMATION CONCERNING THE SENIOR NOTE INDENTURE TRUSTEE
Prior to an event of default with respect to senior notes of any series and
after the curing or waiving of all events of default with respect to the senior
notes of any series, the senior note indenture trustee is to perform, with
respect to senior notes of the series, only the duties that are specifically set
forth in the senior note indenture.
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Once a senior note event of default has occurred and is continuing, the
senior note indenture trustee is to exercise, with respect to senior notes of
the series, the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Unless the senior note indenture trustee
is offered reasonable indemnity by a holder of senior notes of any series
against the costs, expenses and liabilities incurred by the senior indenture
trustee, the senior indenture trustee is not required to exercise any of the
powers under the senior indenture at the request of the holder. Additionally,
the senior note indenture trustee is not required to expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties if it reasonably believes that it is not assured repayment or adequate
indemnity.
The Chase Manhattan Bank, the senior note indenture trustee, and its
affiliates also serve as subordinated note indenture trustee, as property
trustee, as Delaware trustee and as guarantee trustee. We and some of our
affiliates maintain deposit accounts and banking relationships with The Chase
Manhattan Bank.
GOVERNING LAW
The senior note indenture and the senior notes are governed by, and
construed in accordance with, the internal laws of the State of New York.
MISCELLANEOUS
We have the right at all times to assign any of our rights or obligations
under the senior note indenture to one of our direct or indirect wholly-owned
subsidiaries. However, in the event of an assignment to one of our direct or
indirect wholly-owned subsidiaries, we will remain primarily responsible for all
of those obligations under the senior note indenture.
DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES
This section describes the general terms and provisions of our junior
subordinated notes that may be offered by this prospectus. When we offer to sell
a particular series of junior subordinated notes, we will describe the specific
terms of the series in a supplement to this prospectus. We will also indicate in
the supplement whether the general terms and provisions described in this
section apply to a particular series of junior subordinated notes.
The junior subordinated notes offered hereby will be issued under the
Subordinated Note Indenture, dated January 11, 2000, between us and The Chase
Manhattan Bank, as trustee. The subordinated note indenture is subject to, and
governed by, the Trust Indenture Act. We have filed a copy of the subordinated
note indenture as an exhibit to the registration statement. We have summarized
selected portions of the subordinated note indenture below. The summary is not
complete. You should read this description of the junior subordinated notes, the
subordinated note indenture and the prospectus supplement relating to the
applicable series of the junior subordinated notes before you buy any junior
subordinated notes.
GENERAL
The junior subordinated notes will be direct, unsecured obligations of our
company. The junior subordinated notes will be subordinated to all senior
indebtedness (as defined in
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the subordinated note indenture) of our company, including, without limitation,
any series of senior notes that have been issued, and effectively subordinated
to all secured debt of our company. The subordinated note indenture does not
limit the amount of junior subordinated notes that we may issue and permits us
to issue junior subordinated notes from time to time. The junior subordinated
notes issued under the prospectus supplement will be issued as part of a series
that has been established pursuant to the subordinated note indenture.
A prospectus supplement relating to a series of junior subordinated notes
being offered will include specific terms relating to the offering. These terms
will include some or all of the following:
- the title;
- any limit on the total principal amount;
- to whom interest is payable if other than the person to whom the junior
subordinated note is registered;
- the date or dates on which the principal is payable and the right, if
any, to extend or advance maturity;
- if interest bearing:
- the interest rate;
- the method by which the interest rate will be determined;
- the date from which interest will accrue;
- interest payment dates;
- the regular record date for the interest payable on any interest
payment date;
- the basis on which interest will be calculated if other than that of a
360-day year consisting of twelve 30-day months; and
- the first interest payment date;
- the place or places where the principal of, premium, if any, and
interest, if any, will be payable;
- the period or periods during which the price or prices at which and the
terms and conditions on which the junior subordinated notes may be
redeemed, in whole or in part, at the option of our company;
- the obligation, if any, of our company to redeem or purchase the junior
subordinated notes under any sinking fund or similar provision or at the
option of a holder and the details of that obligation;
- the denominations in which the junior subordinated notes will be
issuable;
- if other than the principal amount, the portion of the principal amount
which will be payable upon declaration of acceleration of maturity;
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- any deletions from, modifications of or additions to the events of
default or covenants of our company as provided in the subordinated note
indenture pertaining to the junior subordinated notes;
- whether the junior subordinated notes will be issued in whole or in part
in the form of a junior global security (a junior subordinated note that
we may issue in accordance with the subordinated note indenture to
represent all or part of a series of the junior subordinated notes);
- the right, if any, of our company to extend the interest payment periods;
- any restrictions or conditions on transferability; and
- any other terms.
The terms of each series of junior subordinated notes issued to a Trust
will correspond to those of the related trust preferred securities as described
in the prospectus supplement relating to the trust preferred securities.
The subordinated note indenture does not contain provisions that would
afford holders of junior subordinated notes protection in the event of a highly
leveraged transaction, reorganization, restructuring, merger or similar
transaction involving our company or our subsidiaries that may adversely affect
holders of the junior subordinated notes or, except as described in "Covenants
of Junior Subordinated Notes," that would limit our ability or our subsidiaries'
ability to incur indebtedness.
SUBORDINATION
The junior subordinated notes are subordinated and junior in right of
payment to all senior indebtedness of our company. No payment of principal of,
including redemption payments, if any, or premium, if any, or interest on,
including additional interest, the junior subordinated notes may be made if any
of the following occur:
- any senior indebtedness is not paid when due and any applicable grace
period with respect to the default has ended with such default not being
cured or waived or otherwise ceasing to exist;
- the maturity of any senior indebtedness has been accelerated because of a
default; or
- notice has been given of the exercise of an option to require repayment,
mandatory payment or prepayment or otherwise on any senior indebtedness.
If we make any payments to the subordinated note indenture trustee or
holders of the junior subordinated notes which are not permitted under the terms
of the subordinated note indenture, then such payments must be held in trust and
immediately paid over to the holders of the senior indebtedness.
The holders of senior indebtedness will be entitled to receive payment in
full of all amounts due or to become due on or in respect of all senior
indebtedness before the holders of the junior subordinated notes are entitled to
receive or retain any payment or
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distribution if there is any payment or distribution of assets of our company to
creditors pursuant to any of the following events:
- liquidation;
- dissolution;
- winding-up;
- reorganization;
- assignment for the benefit of creditors;
- marshalling of assets or liabilities; or
- any bankruptcy, insolvency or similar proceedings of our company.
Subject to the prior payment of all senior indebtedness, the rights of the
holders of the junior subordinated notes will be subrogated to the rights of the
holders of senior indebtedness to receive payments and distributions applicable
to such senior indebtedness until all amounts owing on the junior subordinated
notes are paid in full.
As defined in the subordinated note indenture, senior indebtedness means:
(1) any payment due in respect of our indebtedness, whether outstanding at
the date of execution of the subordinated note indenture or incurred,
created or assumed afterwards
- in respect of money borrowed, including any financial derivative,
hedging or futures contract or similar instrument; and
- evidenced by securities, debentures, bonds, notes or other similar
instruments issued by our company that, by their terms, are senior or
senior subordinated debt securities, including all obligations under
our indentures with various trustees;
(2) all capital lease obligations;
(3) all obligations issued or assumed by us as the deferred purchase price
of property, all conditional sale obligations and all of our
obligations under any title retention agreement, excluding trade
accounts payable arising in the ordinary course of business and
long-term purchase obligations;
(4) all obligations for the reimbursement of any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction;
(5) all obligations of the type referred to in clauses (1) through (4)
above of other persons, the payment of which we are responsible or
liable for as obligor, guarantor or otherwise; and
(6) all obligations of the type referred to in clauses (1) through (5)
above of other persons secured by any lien on any of our property or
asset of ours, whether or not such obligation is assumed by us,
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except for:
- any such indebtedness that is by its terms subordinated to or equal to
the junior subordinated notes; and
- any unsecured indebtedness between or among us or our affiliates.
This senior indebtedness will continue to be senior indebtedness and be
entitled to the benefits of the subordination provisions contained in the
subordinated note indenture irrespective of any amendment, modification or
waiver of any term of the senior indebtedness.
We are a non-operating holding company with no significant business
operations of our own. Most of our assets are owned by our subsidiaries.
Therefore, the junior subordinated notes will be effectively subordinated to all
existing and future liabilities of our subsidiaries, including the liabilities
of our subsidiaries under contracts of insurance and annuities written by our
subsidiaries. Holders of the junior subordinated notes should look only to the
assets of our company, and not our subsidiaries, for payment of interest and
principal and premium, if any.
The subordinated note indenture does not limit the total amount of senior
indebtedness that may be issued by us. We expect from time to time to incur
additional indebtedness constituting senior indebtedness.
ADDITIONAL INTEREST
As defined in the subordinated note indenture, additional interest means:
- additional amounts as may be required so that the net amounts received
and retained by a holder of junior subordinated notes, if the holder is a
Trust, after paying taxes, duties, assessments or governmental charges of
whatever nature, other than withholding taxes, imposed by the United
States or any other taxing authority will not be less than the amounts
the holder would have received had no such taxes, duties, assessments, or
other governmental charges been imposed; and
- any interest due and not paid on an interest payment date, together with
interest on those amounts from that interest payment date to the date of
payment, compounded quarterly, on each interest payment date.
COVENANTS OF THE MONY GROUP INC.
We covenant in the subordinated note indenture, for the benefit of the
holders of each series of junior subordinated notes, that (1) we will not
declare or pay any dividend or make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
our capital stock, and (2) we will not make any payment of interest, principal
or premium on, or repay, repurchase or redeem any debt securities, including
guarantees other than the guarantees referred to in this prospectus, issued by
us which rank equal to or junior to the junior subordinated notes, if at such
time:
- we will have given notice of our election to extend an interest payment
period for a series of junior subordinated notes and such extension is
continuing; or
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- we will be in default with respect to our payment or other obligations
under the guarantee with respect to the trust preferred securities, if
any, related to such series of junior subordinated notes;
None of the foregoing, however, will restrict:
- any of the actions described in the preceding sentence resulting from any
reclassification of our capital stock or the exchange or conversion of
one class or series of our capital stock for another class or series of
our capital stock;
- the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital stock or
the security being converted or exchanged; or
- repurchases, redemptions or other acquisitions of our capital stock in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or
consultants.
The subordinated note indenture also provides that, for so long as the
trust preferred securities of any Trust remain outstanding, we covenant:
- to directly or indirectly maintain 100% ownership of the common
securities of that Trust. However, any permitted successor of our company
under the subordinated note indenture may succeed to our ownership of the
common securities, and
- to use our reasonable efforts to cause the Trust:
- to remain a statutory business trust, except in connection with the
distribution of junior subordinated notes to the holders of trust
preferred securities in liquidation of the Trust, the redemption of
all of the trust preferred securities of the Trust, or specified
mergers, consolidations or amalgamations, permitted by the related
trust agreement; and
- to otherwise continue to be classified as a grantor trust for United
States federal income tax purposes.
EVENTS OF DEFAULT
The subordinated note indenture provides that with respect to any series of
junior subordinated notes, an event of default includes:
- failure to pay interest on the junior subordinated notes of the series
when due on an interest payment date other than at maturity including any
additional interest in respect of that failure to pay and continuance of
this default for 30 days. However, a valid extension of the interest
payment period by us will not constitute a default in the payment of
interest for this purpose;
- failure to pay other additional interest and this default continues for
30 days;
- failure to pay principal or premium, if any, or interest on the junior
subordinated notes of the series when due at maturity or upon earlier
redemption, including additional interest in respect of that failure to
pay;
- failure to deposit any sinking fund payment when due and this default
continues for 3 business days;
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- failure to perform or breach of any of our covenants or warranties in the
subordinated note indenture, other than a covenant or warranty which has
expressly been included in the subordinated note indenture solely for the
benefit of one or more series of junior subordinated notes other than
such series, for 90 days after we receive written notice from the
subordinated note indenture trustee or the holders of 25% or more in
total principal amount of the outstanding junior subordinated notes of
the series;
- specified events of bankruptcy, insolvency, or reorganization of our
company; and
- any other event of default provided with respect to junior subordinated
notes of that series in the supplemental indenture authorizing that
series.
The holders of 25% or more in total principal amount of the outstanding
junior subordinated notes of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the subordinated note
indenture trustee with respect to the junior subordinated notes of that series.
If a subordinated note indenture event of default occurs and is continuing
with respect to the junior subordinated notes of any series, then the
subordinated note indenture trustee or the holders of 25% or more in total
outstanding principal amount of the junior subordinated notes of the series may
declare the principal amount due and payable immediately by notice in writing to
us, and to the subordinated note indenture trustee if given by the holders, and
upon any such declaration the principal amount will become immediately due and
payable.
At any time after a declaration of acceleration with respect to the junior
subordinated notes of any series has been made and before a judgment or decree
for payment of the money due has been obtained as provided in Article Five of
the subordinated note indenture, the holders of 50% or more in total outstanding
principal amount of the junior subordinated notes of the series may rescind and
annul the declaration and its consequences if each of the following has
occurred:
- the default has been cured or waived; and
- we have paid or deposited with the subordinated note indenture trustee
- a sum sufficient to pay overdue interest, including any additional
interest, and principal, or premium, if any, due otherwise than by
acceleration, and
- all sums paid or advanced by the subordinated note indenture trustee,
including reasonable compensation and expenses of the subordinated
note indenture trustee.
A holder of trust preferred securities may institute a legal proceeding
directly against us, without first instituting a legal proceeding against the
property trustee or any other person or entity, for enforcement of payment to
the holder of principal of, premium, if any, or interest on the junior
subordinated notes of the related series having a principal amount equal to the
total stated liquidation amount of the trust preferred securities of the holder
on or after the due dates specified in the junior subordinated notes of the
series.
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The holders of 50% or more in total outstanding principal amount of the
junior subordinated notes of any series may, on behalf of the holders of all the
junior subordinated notes of the series, waive any past default with respect to
the series, except:
- a default in the payment of principal, or premium, if any, or interest on
any junior subordinated notes of the series; or
- a default in respect of a covenant or provision which under Article Nine
of the subordinated note indenture cannot be modified or amended without
the consent of the holder of each outstanding junior subordinated note of
the series affected by it.
REGISTRATION AND TRANSFER
We are not required to do the following:
- issue, register the transfer of or exchange junior subordinated notes of
any series during a period of 15 days immediately prior to the date
notice is given identifying the junior subordinated notes of the series
called for redemption; or
- issue, register the transfer of or exchange any junior subordinated notes
selected for redemption, in whole or in part, except the unredeemed
portion of any junior subordinated note being redeemed in part.
PAYMENT AND PAYING AGENT
Unless otherwise described in the prospectus supplement, we will pay the
principal of any junior subordinated notes only against surrender to the paying
agent of the junior subordinated notes. We will pay the principal of, premium,
if any, and interest on junior subordinated notes, subject to any applicable
laws and regulations, at the office of the paying agent or paying agents as we
designate, except that at our option, we may pay any interest by wire transfer
or by check mailed to the address of the person entitled thereto as the address
appears in the security register with respect to the junior subordinated notes.
We will pay interest on junior subordinated notes on any interest payment
date only to the person in whose name the junior subordinated notes, or
predecessor security, are registered at the close of business on the record date
for such interest payment, which is the fifteenth day before that interest
payment date.
Unless otherwise described in the prospectus supplement, the subordinated
note indenture trustee will be the paying agent with respect to the junior
subordinated notes. We may at any time designate additional paying agents or
rescind the designation of any paying agents or approve a change in the office
through which any paying agent acts.
All moneys paid by us to a paying agent for the payment of the principal
of, premium, if any, or interest on the junior subordinated notes of any series
that remain unclaimed at the end of two years after the principal, premium, if
any, or interest became due and payable will be repaid to us, and after a
repayment, the holder of the junior subordinated notes may look only to us for
payment of that principal of, premium, if any or interest.
MODIFICATION
The subordinated note indenture provides that we may modify or amend our
rights and obligations and the rights of holders of the junior subordinated
notes with the consent
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of the holders of 50% or more of the total principal amount of the outstanding
junior subordinated notes of each series affected by the modification. However,
we may not, modify or amend the subordinated note indenture for any of the
following purposes without prior consent of each holder of the series of junior
subordinated notes:
- to change the stated maturity of the principal of or any installment of
principal of, premium, if any, or interest on, any junior subordinated
note;
- to reduce the principal amount of or the rate of interest of or any
premium payable upon any redemption of, any junior subordinated notes;
- to change the method of calculating the rate of interest of, or impair
the right to institute suit for the enforcement of any payment on or
after the stated maturity of, any junior subordinated note, or, in the
case of redemption, on or after the redemption date;
- to reduce the percentage in principal amount of the outstanding junior
subordinated notes of any series, the consent of whose holders is
required for
- any supplemental indenture,
- any waiver of compliance with specified provisions of the subordinated
note indenture, or
- any waiver of specified defaults thereunder and their consequences
provided for in the subordinated note indenture; or
- to modify any of the provisions of the sections of the subordinated note
indenture relating to
- supplemental indentures,
- the waiver of past defaults, or
- the waiver of specified covenants,
except to increase any such percentage or to provide that additional
provisions of the subordinated note indenture cannot be modified or waived
without the consent of the holder of each outstanding junior subordinated
note affected thereby; or
- to modify the provisions of the subordinated note indenture with respect
to the subordination of the junior subordinated notes in a manner
materially adverse to the holder of the junior subordinated notes.
CONSOLIDATION, MERGER AND SALE
The subordinated note indenture provides that we may not merge or
consolidate or sell, convey, transfer or lease all or substantially all of our
properties and assets unless:
- we are the successor corporation or the successor corporation is a
domestic corporation which assumes our company's obligations on the
junior subordinated notes and under the subordinated note indenture;
- after giving effect to the merger, consolidation, sale, conveyance,
transfer or lease of all or substantially all of our properties and
assets, no event of default, and no event
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which, after notice or lapse of time or both, would become an event of
default, will have happened and be continuing; and
- we have delivered to the subordinated note indenture trustee an officer's
certificate and an opinion of counsel, each stating that the merger,
consolidation, sale, conveyance, transfer or lease of all or
substantially all of our properties and assets, complies with the
provisions of the subordinated note indenture governing consolidation,
merger, conveyance, transfer or lease and that all conditions precedent
have been complied with.
INFORMATION CONCERNING THE SUBORDINATED NOTE INDENTURE TRUSTEE
Prior to an event of default with respect to junior subordinated notes of
any series and after the curing or waiving of all events of default with respect
to the junior subordinated notes of any series, the subordinated note indenture
trustee is to perform, with respect to junior subordinated notes of the series,
only the duties that are specifically set forth in the subordinated note
indenture.
Once a junior subordinated note event of default has occurred and is
continuing, the subordinated note indenture trustee is to exercise, with respect
to junior subordinated notes of the series, the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Unless the
subordinated note indenture trustee is offered reasonable indemnity by a holder
of junior subordinated notes of any series against the costs, expenses and
liabilities incurred by the subordinated indenture trustee, the subordinated
note indenture trustee is not required to exercise any of its powers under the
subordinated note indenture at the request of the holder. Additionally, the
subordinated note indenture trustee is not required to expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties if the subordinated note indenture trustee reasonably believes that it is
not assured repayment or adequate indemnity.
The Chase Manhattan Bank, the subordinated note indenture trustee, and its
affiliates also serve as senior note indenture trustee, as property trustee, as
Delaware trustee and as guarantee trustee. Our company and some of our
affiliates maintain deposit accounts and banking relationships with The Chase
Manhattan Bank.
GOVERNING LAW
The subordinated note indenture and the junior subordinated notes will be
governed by, and construed in accordance with, the internal laws of the State of
New York.
MISCELLANEOUS
We will have the right at all times to assign any of our rights or
obligations under the subordinated note indenture to one of our direct or
indirect wholly-owned subsidiaries. However, in the event of an assignment to
one of our direct or indirect wholly-owned subsidiaries, we will remain
primarily liable for all such obligations under the subordinated note indenture.
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DESCRIPTION OF THE TRUST PREFERRED SECURITIES
This section describes the general terms and provisions of the trust
preferred securities that may be offered by this prospectus. When the Trusts
offer to sell a particular series of the trust preferred securities, we will
describe the specific terms of the series in a supplement to this prospectus. We
will also indicate in the supplement whether the general terms described in this
section apply to that particular series of trust preferred securities.
We have summarized specified terms and provisions of the trust preferred
securities in this section. The summary is not complete. We refer you to the
amended and restated trust agreement, the form of which is filed as an exhibit
to the registration statement. You should read this description of the trust
preferred securities and the amended and restated trust agreement and prospectus
supplement relating to the applicable series of the trust preferred securities
before you buy any trust preferred securities.
GENERAL
Each Trust may issue only one series of trust preferred securities having
terms described in the prospectus supplement. The trust agreement of each Trust
will authorize the administrative trustees, on behalf of the Trust, to issue the
trust preferred securities of the Trust. The trust preferred securities of each
Trust will have such terms, including as relates to distributions, redemption,
voting, liquidation rights and the other preferred, deferral and special rights
and restrictions as is set forth in the trust agreement of the Trust.
A prospectus supplement relating to the trust preferred securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- the distinctive designation of the trust preferred securities;
- the number of trust preferred securities issued by the Trust;
- the annual distribution rate, or method of determining such rate, for
trust preferred securities of the Trust;
- the date or dates on which distributions will be payable;
- whether distributions on the trust preferred securities will be
cumulative;
- if the trust preferred securities have cumulative distribution rights,
the date or dates, or method of determining the date or dates, from which
distributions on the trust preferred securities will be cumulative;
- the amount or amounts that will be paid out of the assets of the Trust to
the holders of the trust preferred securities of the Trust upon voluntary
or involuntary dissolution, winding-up or termination of the Trust;
- the obligation, if any, of the Trust to purchase or redeem the trust
preferred securities;
- if the Trust is to purchase or redeem the trust preferred securities:
- the price or prices at which the trust preferred securities will be
purchased or redeemed in whole or in part;
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- the period or periods within which the trust preferred securities will
be purchased or redeemed, in whole or in part; and
- the terms and conditions upon which the trust preferred securities
will be purchased or redeemed, in whole or in part;
- the voting rights, if any, of the trust preferred securities in addition
to those required by law, including:
- the number of votes per trust preferred security; and
- any requirement for the approval by the holders of trust preferred
securities as a condition to specified action or amendments to the
trust agreement of the Trust;
- the rights, if any, to defer distributions on the trust preferred
securities by extending the interest payment period on the related junior
subordinated notes; and
- any other relative rights, preferences, privileges, limitations or
restrictions of the trust preferred securities not inconsistent with the
trust agreement of the Trust or applicable law.
The prospectus supplement relating to the trust preferred securities being
offered may specify that the trust preferred securities may be converted into
our common stock upon the terms set forth in the prospectus supplement.
All trust preferred securities offered will be guaranteed by us to the
extent set forth under "Description of the Guarantees." Any material United
States federal income tax considerations applicable to an offering of trust
preferred securities will be described in the applicable prospectus supplement.
DESCRIPTION OF THE GUARANTEES
This section describes the general terms and provisions of the guarantees.
We will execute and deliver the guarantees for the benefit of the holders of the
trust preferred securities. The prospectus supplement will describe the specific
terms of the guarantees offered through that prospectus supplement and any
general terms outlined in this section that will not apply to those guarantees.
Each guarantee will be qualified as an indenture under the Trust Indenture
Act. The Chase Manhattan Bank will act as indenture trustee under each guarantee
for purposes of the Trust Indenture Act.
We have summarized specified terms and provisions of the guarantees in this
section. The summary is not complete. We refer you to the form of the guarantees
which is filed as an exhibit to the registration statement and the Trust
Indenture Act. Each guarantee will be held by the guarantee trustee for the
benefit of holders of the trust preferred securities to which it relates.
GENERAL
Pursuant to each guarantee, we will irrevocably and unconditionally agree,
to the extent set forth in the guarantee, to pay in full, to the holders of the
related trust preferred
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securities, the guarantee payments, to the extent these guarantee payments are
not paid by, or on behalf of, the related Trust. These payments will be made by
us regardless of any defense, right of set-off or counterclaim that we may have
or assert against any person.
The following payments or distributions relating to the trust preferred
securities of any Trust to the extent not paid or made by, or on behalf of, the
Trust are guaranteed payments which will be subject to the guarantee related to
it:
- any accrued and unpaid distributions required to be paid on the trust
preferred securities of the Trust, but if and only if and to the extent
that the Trust has funds legally and immediately available to make those
payments;
- the redemption price, including all accrued and unpaid distributions to
the date of redemption, with respect to any trust preferred securities
called for redemption by the Trust, but if and only to the extent the
Trust has funds legally and immediately available to make that payment;
and
- upon a dissolution, winding-up or termination of the Trust, other than in
connection with the distribution of junior subordinated notes to the
holders of trust preferred securities of the Trust or the redemption of
all of the trust preferred securities of the Trust, the lesser of:
- the total of the liquidation amount and all accrued and unpaid
distributions on the trust preferred securities of the Trust to the
date of payment, to the extent the Trust has funds legally and
immediately available to make that payment; and
- the amount of assets of the Trust remaining available for distribution
to holders of trust preferred securities of the Trust in liquidation
of the Trust.
We may satisfy our obligation to make a guarantee payment by our company
directly paying the required amounts to the holders of the related trust
preferred securities or by causing the related Trust to pay such amounts to such
holders.
Each guarantee will be a guarantee of the guarantee payments with respect
to the related trust preferred securities from the time of issuance of the trust
preferred securities. The guarantees will not apply to the payment of
distributions and other payments on the trust preferred securities when the
related Trust does not have sufficient funds legally and immediately available
to make the distributions or other payments. IF WE DO NOT MAKE INTEREST PAYMENTS
ON THE JUNIOR SUBORDINATED NOTES HELD BY THE PROPERTY TRUSTEE UNDER ANY TRUST,
THE TRUST WILL NOT MAKE DISTRIBUTIONS ON ITS TRUST PREFERRED SECURITIES.
SUBORDINATION
Our obligation under each guarantee to make the guarantee payments will be
an unsecured obligation of our company and will rank:
- subordinate and junior in right of payment to all other liabilities of
our company, including the junior subordinated notes, except those
obligations or liabilities ranking equal to or subordinate by their
terms;
- equal with the most senior preferred or preference stock now outstanding
or issued by us after the date of this prospectus and with any guarantee
entered into by us
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now or after the date of this prospectus in respect of any preferred or
preference securities of any of our affiliates; and
- senior to all of our common stock.
The terms of the trust preferred securities will provide that each holder
of trust preferred securities by accepting the trust preferred securities agrees
to the subordination provisions and other terms of the guarantee related to
subordination.
Each guarantee will constitute a guarantee of payment and not of
collection. This means that the holder of trust preferred securities may
institute a legal proceeding directly against us to enforce its rights under the
guarantee without first instituting a legal proceeding against any other person
or entity.
AMENDMENTS AND ASSIGNMENT
For any changes that materially and adversely affect the rights of holders
of the related trust preferred securities, each guarantee may be amended only if
there is prior approval of the holders of more than 50% in liquidation amount of
the outstanding trust preferred securities. All guarantees and agreements
contained in each guarantee will bind the successors, assigns, receivers,
trustees and representatives of our company and will inure to the benefit of the
holders of the related trust preferred securities then outstanding. We may only
assign our obligations under a guarantee in connection with a consolidation,
merger, conveyance, transfer or lease that is permitted under the applicable
subordinated note indenture.
TERMINATION
Each guarantee will terminate and will have no further force and effect as
to the related trust preferred securities upon:
- full payment of the redemption price of all trust preferred securities;
- distribution of junior subordinated notes to the holders of all trust
preferred securities; or
- full payment of the amounts payable upon liquidation of the related
Trust.
Each guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the related trust preferred securities
must restore payment of any sums paid with respect to the trust preferred
securities or under the guarantee.
EVENTS OF DEFAULT
Each guarantee provides that an event of default under a guarantee occurs
upon our failure to perform any of our payment obligations under the applicable
guarantee.
The holders of 50% or more in liquidation amount of the trust preferred
securities to which any guarantee relates may direct the time, method and place
of conducting any proceeding for any remedy available to the guarantee trustee
with respect to the guarantee or may direct the exercise of any trust or power
conferred upon the guarantee trustee in respect of the guarantee.
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Any holder of the related trust preferred securities may institute a legal
proceeding directly against our company to enforce its rights under such
guarantee without first instituting a legal proceeding against the guarantee
trustee or any other person or entity.
The holders of 50% or more in liquidation amount of trust preferred
securities of any series may, by vote, on behalf of the holders of all the trust
preferred securities of the series, waive any past event of default and its
consequences.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
Prior to an event of default with respect to any guarantee and after the
curing or waiving of all events of default with respect to the guarantee, the
guarantee trustee may perform only the duties that are specifically set forth in
the guarantee.
Once a guarantee event of default has occurred and is continuing, the
guarantee trustee is to exercise, with respect to the holder of the trust
preferred securities of the series, the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Unless the
guarantee trustee is offered reasonable indemnity against the costs, expenses
and liabilities which may be incurred by the guarantee trustee by a holder of
the related trust preferred securities, the guarantee trustee is not required to
exercise any of its powers under any guarantee at the request of the holder.
Additionally, the guarantee trustee is not required to expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties if the guarantee trustee reasonably believes that it is not assured
repayment or adequate indemnity.
The Chase Manhattan Bank, the guarantee trustee, and its affiliates also
serve as property trustee, as senior note indenture trustee, as Delaware trustee
and as subordinated note indenture trustee. Our company and some of our
affiliates maintain deposit accounts and banking relationships with The Chase
Manhattan Bank.
GOVERNING LAW
Each guarantee will be governed by, and construed in accordance with, the
internal laws of the State of New York.
THE AGREEMENTS AS TO EXPENSES AND LIABILITIES
Under an agreement as to expenses and liabilities to be entered into by us
under each trust agreement, we will irrevocably and unconditionally guarantee to
each person or entity to whom each Trust becomes indebted or liable the full
payment of any indebtedness, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to the holders of the related trust preferred
securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of such trust preferred securities or such other similar
interests, as the case may be.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE JUNIOR SUBORDINATED NOTES AND THE GUARANTEES
As long as payments of interest and other payments are made when due on
each series of junior subordinated notes issued to a Trust, these payments will
be sufficient to
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cover distributions and payments due on the related trust preferred securities
of each Trust primarily because of the following factors:
- the total principal amount of each series of junior subordinated notes
will be equal to the sum of the total stated liquidation amount of the
related trust preferred securities;
- the interest rate and interest and other payment dates on each series of
junior subordinated notes will match the distribution rate and
distribution and other payment dates for the related trust preferred
securities;
- based on the agreements as to expenses and liabilities, we, as issuer of
the junior subordinated notes, will pay, directly or indirectly, all
costs, expenses, debts and obligations of each Trust other than with
respect to the trust preferred securities; and
- each trust agreement provides that the securities trustees thereunder
will not cause or permit the Trust to, among other things, engage in any
activity that is not consistent with the purposes of the Trust.
Payments of distributions and other payments due on the trust preferred
securities, to the extent funds are legally and immediately available, will be
guaranteed by us as to the extent set forth under "Description of the
Guarantees."
If we do not make interest payments on any series of junior subordinated
notes, the related Trust will not have sufficient funds to pay distributions on
its trust preferred securities. Each guarantee is a guarantee from the time of
its issuance, but does not apply to any payment of distributions unless and
until the related Trust has sufficient funds legally and immediately available
for the payment of such distributions.
If we fail to make interest or other payments on any series of junior
subordinated notes when due (taking into account any extension period as
described in the applicable prospectus supplement), the holders of the related
trust preferred securities may direct the property trustee to enforce its rights
under the junior subordinated notes of the series.
If the property trustee fails to enforce its rights under any series of
junior subordinated notes, to the fullest extent permitted by applicable law,
any holder of related trust preferred securities may institute a legal
proceeding directly against us to enforce the property trustee's rights under
such series of junior subordinated notes without first instituting any legal
proceeding against the property trustee or any other person or entity.
Notwithstanding the foregoing, a holder of trust preferred securities may
institute a legal proceeding directly against us, without first instituting a
legal proceeding against the property trustee or any other person or entity, for
enforcement of payment to the holder of principal of premium, if any, or
interest on junior subordinated notes of the related series having a principal
amount equal to the total stated liquidation amount of the trust preferred
securities of such holder on or after the due dates specified in the junior
subordinated notes of such series.
If we fail to make interest or other payments under any guarantee, the
guarantee provides that the holders of the trust preferred securities to which
the guarantee relates may direct the guarantee trustee to enforce its rights
thereunder. In addition, any holder of trust preferred securities may institute
a legal proceeding directly against us to enforce the
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guarantee trustee's rights under the related guarantee without first instituting
a legal proceeding against the guarantee trustee or any other person or entity.
Each guarantee, the subordinated note indenture, the junior subordinated
notes of the related series, the related trust agreement and the related
agreement as to expenses and liabilities, constitute a full and unconditional
guarantee by our company of the payments due on the related series of trust
preferred securities.
Upon any voluntary or involuntary dissolution, winding-up or termination of
any Trust, unless junior subordinated notes of the related series are
distributed in connection therewith, the holders of trust preferred securities
will be entitled to receive, out of assets legally available for distribution to
holders, a liquidation distribution in cash as described in the applicable
prospectus supplement.
Upon any voluntary or involuntary liquidation or bankruptcy of our company,
the property trustee, as holder of the related series of junior subordinated
notes, would be a subordinated creditor of our company, subordinated in right of
payment to all senior indebtedness, but entitled to receive payment in full of
principal premium, if any, and interest, before any of our stockholders receive
payments or distributions. Because we are guarantor under each guarantee and
have agreed to pay for all costs, expenses and liabilities of each Trust, other
than the Trust's obligations to holders of the trust preferred securities,
pursuant to the related agreement as to expenses and liabilities, the positions
of a holder of trust preferred securities and a holder of junior subordinated
notes of the related series relative to other creditors and to our stockholders
in the event of liquidation or bankruptcy of our company would be substantially
the same.
A default or event of default under any senior indebtedness would not
constitute a default or event of default under the subordinated note indenture.
In the event of payment defaults under, or acceleration of, senior indebtedness,
the subordination provisions of the junior subordinated notes provide that no
payments may be made in respect of the junior subordinated notes until such
senior indebtedness has been paid in full or any payment default has been cured
or waived. Failure to make required payments on the junior subordinated notes of
any series would constitute an event of default under the subordinated note
indenture with respect to the junior subordinated notes of such series, except
that failure to make interest payments on the junior subordinated notes of such
series will not be an event of default during an extension period as described
in the applicable prospectus supplement.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
This section describes the general terms and provisions of our stock
purchase contracts and stock purchase units that may be offered by this
prospectus. When we offer to sell a particular series of the stock purchase
contracts or stock purchase units, we will describe the specific terms of the
series in a supplement to this prospectus. The description in the applicable
supplement to this prospectus will be a summary and reference will be made to
the stock purchase contracts, and, if applicable, collateral arrangements and
depositary arrangements, relating to the stock purchase contracts or stock
purchase units.
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GENERAL
We may issue and sell, from time to time, stock purchase contracts,
representing contracts obligating holders to purchase from us, and for us to
sell to the holders, a specified number of shares of our common stock at a
future date or dates. The price per share of our common stock may be fixed at
the time the stock purchase contracts are issued or may be determined by
reference to a specified formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately or as part of units. The stock
purchase units will consist of the following:
- a stock purchase contract; and
- one or more of the following, each of which secures the holders'
obligations to purchase the common stock under the stock purchase
contracts:
- senior notes;
- junior subordinated notes;
- trust preferred securities; or
- debt obligations of third parties, including U.S. treasury securities.
The stock purchase contracts may require (1) us to make periodic payments
to holders of the stock purchase units or (2) the holders of the stock purchase
units to make periodic payments to us. The stock purchase contracts may require
holders to secure their obligations under the stock purchase contracts in a
specified manner.
DESCRIPTION OF THE PREFERRED STOCK
We are authorized by our Amended and Restated Certificate of Incorporation
to issue 100 million shares of preferred stock having a par value of $0.01 per
share.
As of today, we have not issued any shares of preferred stock. Subject to
limitations prescribed by the Delaware General Corporation Law, our Amended and
Restated Certificate of Incorporation and our Amended and Restated Bylaws, our
board of directors is authorized to fix the number of shares constituting each
class or series of preferred stock and the designations and powers, preferences
and relative, participating, optional or other special rights, including those
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution of our board of
directors or a committee authorized by our board of directors. The preferred
stock when offered by this prospectus will, when issued, be fully paid and
nonassessable and will not have, or be subject to, any preemptive or similar
rights. The board of directors can authorize the issuance of shares of preferred
stock with terms and conditions which could have the effect of discouraging a
takeover or other transaction which holders of some, or a majority, of such
shares might believe to be in their best interest or in which holders of some,
or a majority, of such shares might receive a premium for their shares over the
then-market price of such shares.
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We will describe in a prospectus supplement some or all of the following
terms of the class or series of preferred stock being offered:
- title;
- stated value;
- the number of shares offered;
- the liquidation preference per share;
- the purchase price;
- the dividend rates, periods and/or payment dates or methods of
calculation of the dividend rates;
- whether dividends will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will accumulate;
- the procedures for any auction or remarketing, if any;
- the provisions for a sinking fund, if any;
- the provisions for redemption, if applicable;
- any listing of the preferred stock on any securities exchange or market;
- the terms and conditions, if applicable, upon which the preferred stock
will be convertible into our common stock, including the conversion
price, or manner of calculation of the conversion price, and conversion
period;
- the terms and conditions, if applicable, upon which preferred stock will
be exchanged into debt securities, including the exchange price, or
manner of calculating the exchange price, and the exchange period;
- voting rights, if any;
- any material and/or special United States federal income tax
considerations;
- the relative ranking and preferences of the preferred stock as to
dividend rights upon liquidation, dissolution or winding up of our
affairs;
- any limitations on issuance of any class or series of preferred stock
ranking senior to or equal to the series of preferred stock as to
dividend rights upon liquidation, dissolution or winding up of our
affairs; and
- any other specific terms, preferences, rights, limitations or
restrictions.
Unless otherwise specified in the prospectus supplement, the preferred
stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of our company, rank:
- senior to all classes or series of our common stock, and to all equity
securities issued by us the terms of which specifically provide that such
equity securities rank junior to the preferred stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of
our company;
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- equal to all equity securities issued by us, the terms of which
specifically provide that those equity securities will rank equal to the
preferred stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of our company; and
- junior to all equity securities issued by us, the terms of which
specifically provide that those equity securities rank senior to the
preferred stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of our company.
DESCRIPTION OF THE COMMON STOCK
GENERAL
Pursuant to our Amended and Restated Certificate of Incorporation, we are
authorized to issue 400 million shares of common stock having a par value of
$0.01 per share. Our common stock is listed on the New York Stock Exchange under
the trading symbol "MNY." The transfer agent and registrar for our common stock
is EquiServe Trust Company.
DIVIDENDS
Subject to the preferential rights of any holders of any outstanding series
of our preferred stock, each holder of common stock is entitled to receive
dividends, if declared by our board of directors, out of funds that we can
legally use to pay dividends. Dividends may be paid in cash, property or shares
of our capital stock.
Our board of directors adopted a resolution expressing our intention to
declare in lieu of quarterly dividends, an annual cash dividend of $0.40 per
share, plus an enhancement to fairly compensate shareholders from a cash-flow
perspective, on the common stock commencing in 2000. The declaration of
dividends will be reviewed periodically by our board of directors in light of
our earnings, financial condition and capital requirements. A dividend may be
adjusted or eliminated at the discretion of our board of directors on the basis
of these or other considerations. We can not promise you that our board of
directors will declare dividends in the future and if dividends are declared by
our board of directors, the amount of those dividends.
As a holding company, our ability to meet our cash requirements and pay
dividends on the common stock will depend in large part upon the receipt of
dividends and other payments from our subsidiaries. The payment of dividends by
our subsidiaries to us is regulated under state insurance law.
VOTING RIGHTS
The holders of common stock will possess exclusive voting rights in our
company, except to the extent that our board of directors will have designated
voting power with respect to any preferred stock issued. Each holder of common
stock is entitled to one vote for each share of stock registered in that
holder's name on our books on each matter submitted for a vote of holders of
common stock.
Generally, the presence in person or by proxy of the holders of record
entitled to exercise at least one-third of the voting power of our company at a
meeting of stockholders
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constitutes a quorum for the transaction of business of that meeting. Generally,
all matters to be voted on by stockholders must be approved by a majority vote,
or, in the case of the election of directors, by a plurality. Stockholders will
not have any right to cumulate votes in the election of directors.
LIQUIDATION RIGHTS
In the event of liquidation, dissolution or winding-up of our company, the
holders of the common stock will be entitled to share proportionately in the
distribution of all assets of our company remaining after payment of all of our
company's debts and liabilities and of all sums to which holders of any
preferred stock may be entitled.
PREEMPTIVE RIGHTS
Holders of the common stock will not generally be entitled to preemptive
rights with respect to any shares of capital stock which may be issued by us.
RIGHTS AGREEMENT
Each share of our common stock, including those that may be issued in an
offering under this prospectus, carries with it one preferred share purchase
right. If these rights become exercisable, each right entitles the registered
holder to purchase one one-hundredth of a share of our Series A Junior Preferred
Stock (subject to a proportionate decrease in the fractional number of shares of
Series A Junior Preferred Stock that may be purchased if a stock split, stock
dividend or similar transaction occurs with respect to the common stock and a
proportionate increase in the event of a reverse stock split). Until a right is
exercised, the holder of the right has no right to vote or receive dividends or
any other rights as a shareholder as a result of holding the right. The
description and terms of the rights are described in the Rights Agreement, dated
as of November 10, 1998, between us and First Chicago Trust Company of New York,
as rights agent. The Rights Agreement is filed as an exhibit to the registration
statement.
The rights trade automatically with shares of our common stock. A holder of
common stock may exercise the rights only under the circumstances described
below. The rights are designed to protect the interests of our company and
shareholders against coercive takeover tactics. The rights are also designed to
encourage potential acquirors to negotiate with our board of directors before
attempting a takeover and to increase the ability of our board of director to
negotiate terms of any proposed takeover that benefit our shareholders. The
rights may, but are not intended to, deter takeover proposals that may be in the
interests of our shareholders.
Shares of Series A Junior Preferred Stock will rank junior to all other
series of our preferred stock, including any preferred shares offered under this
prospectus, if our board of directors, in creating such preferred stock,
provides that they will rank senior to the Series A Junior Preferred Stock.
The purchase price for each one one-hundredth of a share of Series A Junior
Preferred Stock is $96. We must adjust the purchase price if specified events
occur, such as:
- if we pay stock dividends on the Series A Junior Preferred Stock or
effect a stock split or reverse stock split with respect to the Series A
Junior Preferred Stock; or
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- if we issue any shares of our capital stock in a reclassification of the
Series A Junior Preferred Stock.
Holders may exercise their rights only following a distribution date. A
distribution date will occur on the earlier of the following: (1) a person or
group acquires 15% or more of the outstanding shares of our common stock or (2)
a person or group makes or announces an offer to purchase our common stock,
which, if successful, would result in the acquisition of 15% or more of the
outstanding shares of our common stock. However, a distribution date will not
occur, and the rights cannot be exercised, as long as our board of directors has
the ability to redeem the rights, as described below.
The rights have some additional features that will be triggered upon the
occurrence of specified events, including:
- if a person or group acquires 15% or more of the outstanding shares of
our common stock, holders of the rights, other than such person or group,
may purchase our common stock (instead of our Series A Junior Preferred
Stock) at 50% of the market value of the purchased common stock;
- if a person or group acquires 15% or more of the outstanding shares of
our common stock, our board of directors may, at any time before the
person or group acquires 50% or more of the outstanding shares of common
stock, exchange all or part of the rights (other than rights held or
previously held by the 15% or greater shareholder) for common stock at an
exchange ratio equal to one common share per right, subject to
adjustment; and
- if our company is involved in specified business combinations or the sale
of 50% or more of our assets or earning power, the holders of the rights
may purchase common stock of the acquiror or an affiliated company at 50%
of market value.
Any time before a person or group acquires 15% or more of the outstanding
shares of common stock, our board of directors may redeem the rights in whole,
but not in part, at a rights redemption price of $0.01 per right, subject to
adjustment for stock dividends, stock splits and similar transactions. Our board
of directors in its sole discretion may establish the effective time, basis and
conditions of the redemption. Immediately upon redemption of the rights, the
holder (1) can no longer exercise such rights and (2) can only receive the
redemption price.
The rights will expire on November 10, 2008, unless we redeem them before
then. Our board of directors may amend the terms of the rights without the
consent of the holders of the rights at any time before the distribution date in
any manner our board of directors deems desirable. Our board of directors may
amend the terms of the rights without the consent of the holders of the rights
after the distribution date only if the amendment does not adversely affect the
interests of the holders of the rights.
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PLAN OF DISTRIBUTION
We and each Trust may sell the senior notes, junior subordinated notes,
trust preferred securities, preferred stock or common stock offered pursuant to
this prospectus in one or more of the following ways from time to time:
- through underwriters or dealers;
- directly to institutional purchasers or to a single purchaser; or
- through agents.
The prospectus supplement with respect to each series of securities will
set forth the terms of the offering of the securities, including:
- the name or names of any underwriters or agents;
- the purchase price of the securities and the proceeds to us or the
applicable Trust from the sale;
- any underwriting discounts or agency fees and other items constituting
underwriters' or agents' compensation,
- any initial public offering price; and
- any discounts or concessions allowed or realized or paid to dealers and
any securities exchange on which the securities may be listed.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by one or more underwriters
acting alone.
Unless otherwise set forth in the applicable prospectus supplement, the
obligations of the underwriters to purchase any series of securities described
in the applicable prospectus supplement will be subject to conditions precedent
and the underwriters will be obligated to purchase all of the series of the
securities, if any are so purchased by them. Any public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Underwriters, dealers, agents and remarketing firms may be entitled, under
agreements entered into with us and/or the applicable Trust, or both, to
indemnification against specified civil liabilities, including liabilities under
the Securities Act. Underwriters, dealers, agents and remarketing agents may
engage in transactions with, or perform services for, us and/or any Trust in the
ordinary course of business.
Each series of securities, except for the common stock which is traded on
the New York Stock Exchange, will be a new issue of securities and will have no
established trading market. Any underwriters to whom those securities are sold
for public offering and sale may make a market in them, but the underwriters
will not be obligated to do so and may discontinue any market making at any time
without notice. The securities, except for the common stock which are traded on
the New York Stock Exchange, may or may not be listed on a national securities
exchange.
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LEGAL MATTERS
Richards, Layton & Finger, P.A., Wilmington, Delaware, will issue an
opinion to the Trusts regarding specified matters of Delaware law in connection
with this offering including the validity of the trust preferred securities.
Dewey Ballantine LLP, New York, New York, will issue an opinion to us regarding
specified matters relating to the senior notes, the junior subordinated notes,
the guarantees, the common stock and the preferred stock. Specified legal
matters will be passed on behalf of the underwriters by a law firm to be chosen
by the underwriters at the time of the offering.
EXPERTS
The consolidated financial statements of The MONY Group Inc. and our
subsidiaries, included in our report on Form 10-K for the fiscal year ended
December 31, 1998 referred to above have been audited by PricewaterhouseCoopers
LLP, independent accountants, as set forth in their report dated February 15,
1999, except for Note 18(b), as to which the date is March 22, 1999,
accompanying such financial statements, and are incorporated herein by reference
in reliance upon the report of such firm, which report is given upon their
authority as experts in accounting and auditing.
Any financial statements and schedules hereafter incorporated by reference
in the registration statement of which this prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Securities and Exchange Commission.
49
<PAGE> 51
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of issuance and distribution, other than
underwriting discounts and commissions, to be borne by our company are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 264,000
Fees and expenses of trustees and/or Transfer Agent and
Registrar............................................. 60,000
Listing fees of New York Stock Exchange................ 115,000
Printing and engraving expenses........................ 150,000
Rating Agency fees..................................... 370,000
Fees and expenses of counsel........................... 150,000
Blue sky fees and expenses............................. 25,000
Fees of accountants.................................... 50,000
Miscellaneous expenses................................. 26,000
----------
Total............................................. $1,210,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of our company may be indemnified against
liabilities, fines, penalties and claims imposed upon or asserted against them
as provided in the Delaware General Corporation Law and our Amended and Restated
Certificate of Incorporation. Such indemnification covers all costs and expenses
incurred by a director or officer. The Board of Directors, by a majority vote of
a quorum of disinterested directors or, under specified circumstances,
independent counsel appointed by the Board of Directors, must determine that the
director or officer seeking indemnification was not guilty of willful misconduct
or a knowing violation of the criminal law. In addition, the Delaware General
Corporation Law and our Amended and Restated Certificate of Incorporation may
under specified circumstances eliminate the liability of directors and officers
in a stockholder or derivative proceeding.
If the person involved is not a director or officer of our company, the
Board of Directors may cause us to indemnify to the same extent allowed for
directors and officers of our company such person who was or is a party to a
proceeding, by reason of the fact that he is or was an employee or agent of our
company, or is or was serving at the request of our company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
We have in force and effect a policy insuring the directors and officers of
our company against losses which they or any of them shall become legally
obligated to pay for by reason of any actual or alleged error or misstatement or
misleading statement or act or omission or neglect or breach of duty by the
directors and officers in the discharge of their duties, individually or
collectively, or any matter claimed against them solely by reason of their being
directors or officers, such coverage being limited by the specific terms and
provisions of the insurance policy.
Pursuant to the underwriting agreements, in the forms filed or to be filed
or incorporated by reference as exhibits to the registration statement, any
underwriters under
II-1
<PAGE> 52
the underwriting agreements will agree to indemnify the registrant's directors
and officers and persons controlling the registrant, within the meaning of the
1933 Act, against specified liabilities that might arise out of or are based
upon specified information furnished to the registrant by any such indemnifying
party.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C> <C>
1.1 -- Form of Underwriting Agreement relating to Senior Notes.*
1.2 -- Form of Underwriting Agreement relating to Junior
Subordinated Notes.*
1.3 -- Form of Underwriting Agreement relating to Trust Preferred
Securities.*
1.4 -- Form of Underwriting Agreement relating to Preferred
Securities.*
1.5 -- Form of Underwriting Agreement relating to Common Stock.*
1.6 -- Form of Underwriting Agreement relating to Stock Purchase
Contracts and Stock Purchase Units.*
3.1 -- Amended and Restated Certificate of Incorporation of The
MONY Group Inc., dated November 3, 1998 (incorporated by
reference to Exhibit 3.1 of the Company's Registration
Statement on Form S-1, File No. 333-63835).
3.2-A -- Amended and Restated Bylaws of The MONY Group Inc.
(incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1, File No. 333-63835).
3.2-B -- Amendment to the Bylaws of The MONY Group Inc., dated March
29, 1999 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998,
filed with the Commission on March 30, 1999).
4.1 -- Senior Note Indenture between The MONY Group Inc. and The
Chase Manhattan Bank, as Trustee.
4.2 -- Form of Supplemental Indenture to Senior Note Indenture to
be used in connection with the issuance of Senior Notes.*
4.3 -- Subordinated Note Indenture between The MONY Group Inc. and
The Chase Manhattan Bank, as Trustee.
4.4 -- Form of Supplemental Indenture to Subordinated Note
Indenture to be used in connection with the issuance of
Junior Subordinated Notes.*
4.5-A -- Certificate of Trust of MONY Capital Trust I.
4.5-B -- Certificate of Trust of MONY Capital Trust II.
4.6-A -- Trust Agreement of MONY Capital Trust I.
4.6-B -- Trust Agreement of MONY Capital Trust II.
4.7-A -- Form of Amended and Restated Trust Agreement of MONY Capital
Trust I.
4.7-B -- Form of Amended and Restated Trust Agreement of MONY Capital
Trust II.
4.8-A -- Form of Trust Preferred Security of MONY Capital Trust I
(included in Exhibit 4.7-A above).
4.8-B -- Form of Trust Preferred Security of MONY Capital Trust II
(included in Exhibit 4.7-B above).
4.9 -- Form of Senior Note (included in Exhibit 4.2 above).
</TABLE>
II-2
<PAGE> 53
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C> <C>
4.10 -- Form of Junior Subordinated Note (included in Exhibit 4.4
above).
4.11-A -- Form of Guarantee relating to MONY Capital Trust I.
4.11-B -- Form of Guarantee relating to MONY Capital Trust II.
4.12-A -- Form of Agreement as to Expenses and Liabilities relating to
MONY Capital Trust I (included in Exhibit 4.7-A above).
4.12-B -- Form of Agreement as to Expenses and Liabilities relating to
MONY Capital Trust II (included in Exhibit 4.7-B above).
4.13 -- Form of Purchase Contract.*
4.14 -- Form of Pledge Agreement.*
5.1 -- Opinion of Dewey Ballantine LLP.
5.2-A -- Opinion of Richards, Layton & Finger, P.A. relating to MONY
Capital Trust I.
5.2-B -- Opinion of Richards, Layton & Finger, P.A. relating to MONY
Capital Trust II.
10.1 -- Rights Agreement, dated as of November 10, 1998, between The
MONY Group Inc. and First Chicago Trust Company of New York,
as rights agents (incorporated by reference to Exhibit 4.1.
of the Company's Form 8-A/A Amended Registration Statement
filed on November 17, 1998).
12.1 -- Computation of ratio of earnings to fixed charges.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Dewey Ballantine LLP (included in Exhibit 5.1
above).
23.3 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2-A and 5.2-B above).
24.1 -- Powers of Attorney (included on the signature page).
25.1 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Senior Note
Indenture Trustee.
25.2 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Subordinated
Note Indenture Trustee.
25.3 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Property
Trustee, relating to MONY Capital Trust I.
25.4 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Guarantee
Trustee, relating to MONY Capital Trust I.
25.5 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Property
Trustee, relating to MONY Capital Trust II.
25.6 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Guarantee
Trustee, relating to MONY Capital Trust II.
</TABLE>
- -------------------------
* To be subsequently filed or incorporated by reference.
II-3
<PAGE> 54
ITEM 17. UNDERTAKINGS.
(a) Undertaking related to Rule 415 offering:
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment to the registration statement)
which, individually or in total, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in total, the
changes in volume and price represent no more than 20% change in
the maximum total offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, S-8 or F-3, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering of such securities.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Undertaking related to filings incorporating subsequent Securities
Exchange Act of 1934 documents by reference:
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
our company's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
II-4
<PAGE> 55
offering of such securities at that time shall be deemed to be the initial
bona fide offering such securities.
(c) Undertaking related to acceleration of effectiveness:
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing
provisions, or otherwise, the registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrants of expenses incurred
or paid by a director, officer or controlling person of the registrants in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering of such
securities.
II-5
<PAGE> 56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The MONY Group
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 11th day of
January, 2000.
The MONY Group Inc.
By: /s/ MICHAEL ISOR ROTH
-----------------------------------
Michael Isor Roth
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, MONY Capital
Trust I certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 11th day of
January, 2000.
MONY Capital Trust I
By: The MONY Group Inc.,
depositor
By: /s/ MICHAEL ISOR ROTH
-----------------------------------
Michael Isor Roth
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, MONY Capital
Trust II certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 11th day of
January, 2000.
MONY Capital Trust II
By: The MONY Group Inc.,
depositor
By: /s/ MICHAEL ISOR ROTH
-----------------------------------
Michael Isor Roth
Chairman of the Board and
Chief Executive Officer
II-6
<PAGE> 57
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below hereby constitutes and appoints Richard Daddario, Lee Smith and John R.
McFeely, Esq. or any one of them, his true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments or post-effective amendments to this registration statement
(including without limitation any post-effective amendment pursuant to Rule 462
under the Securities Act of 1933), and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission, granting unto attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that said attorneys-in-fact and agents, each acting alone, or their
substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following directors and officers
of The MONY Group Inc. in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ MICHAEL ISOR ROTH Chairman of the Board, January 11, 2000
- --------------------------------------------- Chief Executive Officer
MICHAEL ISOR ROTH and Director
(Principal Executive
officer)
/s/ RICHARD DADDARIO Executive Vice President January 11, 2000
- --------------------------------------------- and Chief Financial
RICHARD DADDARIO Officer
(Principal Financial
Officer)
/s/ LARRY COHEN Vice President and January 11, 2000
- --------------------------------------------- Controller
LARRY COHEN (Principal Accounting
Officer)
/s/ SAMUEL JOSEPH FOTI President, Chief Operating January 11, 2000
- --------------------------------------------- Officer and Director
SAMUEL JOSEPH FOTI
/s/ KENNETH MARC LEVINE Executive Vice President, January 11, 2000
- --------------------------------------------- Chief Investment Officer
KENNETH MARC LEVINE and Director
/s/ TOM HANS BARRETT Director January 11, 2000
- ---------------------------------------------
TOM HANS BARRETT
/s/ DAVID LINCOLN CALL Director January 11, 2000
- ---------------------------------------------
DAVID LINCOLN CALL
</TABLE>
II-7
<PAGE> 58
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Director
- ---------------------------------------------
GLEN ROBERT DURHAM
/s/ JAMES BERNARD FARLEY Director January 11, 2000
- ---------------------------------------------
JAMES BERNARD FARLEY
/s/ ROBERT HOLLAND, JR. Director January 11, 2000
- ---------------------------------------------
ROBERT HOLLAND, JR.
Director
- ---------------------------------------------
JAMES LAWRENCE JOHNSON
/s/ ROBERT RAYMOND KILEY Director January 11, 2000
- ---------------------------------------------
ROBERT RAYMOND KILEY
/s/ JOHN ROBERT MEYER Director January 11, 2000
- ---------------------------------------------
JOHN ROBERT MEYER
Director
- ---------------------------------------------
JANE CAHILL PFEIFFER
/s/ THOMAS CHARLES THEOBALD Director January 11, 2000
- ---------------------------------------------
THOMAS CHARLES THEOBALD
</TABLE>
II-8
<PAGE> 59
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------- DESCRIPTION
<S> <C> <C>
1.1 -- Form of Underwriting Agreement relating to Senior Notes.*
1.2 -- Form of Underwriting Agreement relating to Junior
Subordinated Notes.*
1.3 -- Form of Underwriting Agreement relating to Trust Preferred
Securities.*
1.4 -- Form of Underwriting Agreement relating to Preferred
Securities.*
1.5 -- Form of Underwriting Agreement relating to Common Stock.*
1.6 -- Form of Underwriting Agreement relating to Stock Purchase
Contracts and Stock Purchase Units.*
3.1 -- Amended and Restated Certificate of Incorporation of The
MONY Group Inc., dated November 3, 1998 (incorporated by
reference to Exhibit 3.1 of the Company's Registration
Statement on Form S-1, File No. 333-63835).
3.2-A -- Amended and Restated Bylaws of The MONY Group Inc.
(incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1, File No. 333-63835).
3.2-B -- Amendment to the Bylaws of The MONY Group Inc., dated March
29, 1999 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998,
filed with the Commission on March 30, 1999).
4.1 -- Senior Note Indenture between The MONY Group Inc. and The
Chase Manhattan Bank, as Trustee.
4.2 -- Form of Supplemental Indenture to Senior Note Indenture to
be used in connection with the issuance of Senior Notes.*
4.3 -- Subordinated Note Indenture between The MONY Group Inc. and
The Chase Manhattan Bank, as Trustee.
4.4 -- Form of Supplemental Indenture to Subordinated Note
Indenture to be used in connection with the issuance of
Junior Subordinated Notes.*
4.5-A -- Certificate of Trust of MONY Capital Trust I.
4.5-B -- Certificate of Trust of MONY Capital Trust II.
4.6-A -- Trust Agreement of MONY Capital Trust I.
4.6-B -- Trust Agreement of MONY Capital Trust II.
4.7-A -- Form of Amended and Restated Trust Agreement of MONY Capital
Trust I.
4.7-B -- Form of Amended and Restated Trust Agreement of MONY Capital
Trust II.
4.8-A -- Form of Trust Preferred Security of MONY Capital Trust I
(included in Exhibit 4.7-A above).
4.8-B -- Form of Trust Preferred Security of MONY Capital Trust II
(included in Exhibit 4.7-B above).
4.9 -- Form of Senior Note (included in Exhibit 4.2 above).
4.10 -- Form of Junior Subordinated Note (included in Exhibit 4.4
above).
4.11-A -- Form of Guarantee relating to MONY Capital Trust I.
</TABLE>
<PAGE> 60
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------- DESCRIPTION
<S> <C> <C>
4.11-B -- Form of Guarantee relating to MONY Capital Trust II.
4.12-A -- Form of Agreement as to Expenses and Liabilities relating to
MONY Capital Trust I (included in Exhibit 4.7-A above).
4.12-B -- Form of Agreement as to Expenses and Liabilities relating to
MONY Capital Trust II (included in Exhibit 4.7-B above).
4.13 -- Form of Purchase Contract.*
4.14 -- Form of Pledge Agreement.*
5.1 -- Opinion of Dewey Ballantine LLP.
5.2-A -- Opinion of Richards, Layton & Finger, P.A. relating to MONY
Capital Trust I.
5.2-B -- Opinion of Richards, Layton & Finger, P.A. relating to MONY
Capital Trust II.
10.1 -- Rights Agreement, dated as of November 10, 1998, between The
MONY Group Inc. and First Chicago Trust Company of New York,
as rights agents (incorporated by reference to Exhibit 4.1.
of the Company's Form 8-A/A Amended Registration Statement
filed on November 17, 1998).
12.1 -- Computation of ratio of earnings to fixed charges.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Dewey Ballantine LLP (included in Exhibit 5.1
above).
23.3 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2-A and 5.2-B above).
24.1 -- Powers of Attorney (included on the signature page).
25.1 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Senior Note
Indenture Trustee.
25.2 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Subordinated
Note Indenture Trustee.
25.3 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Property
Trustee, relating to MONY Capital Trust I.
25.4 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Guarantee
Trustee, relating to MONY Capital Trust I.
25.5 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Property
Trustee, relating to MONY Capital Trust II.
25.6 -- Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The Chase Manhattan Bank, as Guarantee
Trustee, relating to MONY Capital Trust II.
</TABLE>
- -------------------------
* To be subsequently filed or incorporated by reference.
<PAGE> 1
EXHIBIT 4.1
THE MONY GROUP INC.
TO
THE CHASE MANHATTAN BANK,
TRUSTEE.
SENIOR NOTE INDENTURE
DATED AS OF JANUARY 11, 2000
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Certificate of a Firm of Independent Public Accountants" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.04 ACTS OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.05 NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.06 NOTICE TO HOLDERS OF SENIOR NOTES; WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.07 CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.09 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.10 SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.11 BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.13 LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.01 FORMS GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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SECTION 2.03 SENIOR NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY . . . . . . . . . . . . . . . . . 11
ARTICLE THREE THE SENIOR NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02 EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.03 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . . . . 16
SECTION 3.04 MUTILATED, DESTROYED, LOST AND STOLEN SENIOR NOTES . . . . . . . . . . . . . . . . . . . 17
SECTION 3.05 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.06 PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.07 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.08 COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE FOUR SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.01 SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.02 APPLICATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.01 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT . . . . . . . . . . . . . . . . . . . 22
SECTION 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE . . . . . . . . . . . . . 23
SECTION 5.04 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SENIOR NOTES . . . . . . . . . . . . . . 25
SECTION 5.06 APPLICATION OF MONEY COLLECTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.07 LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . 26
SECTION 5.09 RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.11 DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.12 CONTROL BY HOLDERS OF SENIOR NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.13 WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.14 UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.01 CERTAIN DUTIES AND RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.02 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
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SECTION 6.03 CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SENIOR NOTES . . . . . . . . . . . . . . . . 31
SECTION 6.05 MAY HOLD SENIOR NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.06 MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.07 COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.08 DISQUALIFICATION; CONFLICTING INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS . . . . . . . . . . . . . . . 35
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS . . . . . . . . . . . . . . . . 38
SECTION 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS . . . . . . . . . . . . . . . . . 38
SECTION 7.03 REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.04 REPORTS BY COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.01 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS . . . . . . . . . . . . . . . . . . 39
SECTION 8.02 SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . 40
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . . . 41
SECTION 9.03 GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE . . . . . . . . . . . . . . . . . . . 42
SECTION 9.04 EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9.05 EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.07 REFERENCE IN SENIOR NOTES TO SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . 43
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
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SECTION 10.01 PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 10.02 MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 10.03 MONEY FOR SENIOR NOTES PAYMENTS TO BE HELD IN TRUST . . . . . . . . . . . . . . . . . . . 44
SECTION 10.04 CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.05 [RESERVED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.06 STATEMENT AS TO COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.07 WAIVER OF CERTAIN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE ELEVEN REDEMPTION OF SENIOR NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.01 APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.03 SELECTION BY TRUSTEE OF SENIOR NOTES TO BE REDEEMED . . . . . . . . . . . . . . . . . . . 47
SECTION 11.04 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.05 DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.06 SENIOR NOTES PAYABLE ON REDEMPTION DATE . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.07 SENIOR NOTES REDEEMED IN PART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 12.01 APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SENIOR NOTES . . . . . . . . . . . . . . . . . 49
SECTION 12.03 REDEMPTION OF SENIOR NOTES FOR SINKING FUND . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 13.01 NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 13.02 ASSIGNMENT; BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
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SENIOR NOTE INDENTURE
THIS SENIOR NOTE INDENTURE is made as of January 11, 2000, between THE
MONY GROUP INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
1740 Broadway, New York, New York 10019, and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York,
having its principal corporate trust office at 450 West 33rd Street, New York,
New York 10001, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the "Senior
Notes"), to be issued in one or more series as in this Indenture provided; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase
of the Senior Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Senior
Notes or of series thereof, 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 Trust Indenture
Act, 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 generally accepted accounting principles in
the United States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the date
of such computation; and
<PAGE> 7
(4) 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.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder of a Senior Note, has the
meaning specified in Section 1.04.
"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.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to authenticate one or more series of Senior Notes.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of the officers and/or directors of the Company
appointed by that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a
day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed, or (iii) a day on which the Trustee's
Corporate Trust Office is closed for business.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by an independent public accountant or a firm of independent
public accountants who may be the independent public accountants regularly
retained by the Company or who may be other independent public accountants. Such
accountant or firm shall be entitled to rely upon an Opinion of Counsel as to
the interpretation of any legal matters relating to such certificate.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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<PAGE> 8
"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 Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee in the Borough of
Manhattan, New York City, at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
execution of this Indenture is located at 450 West 33rd Street, New York, New
York 10001.
"Corporation" includes corporations, partnerships, limited liability
companies, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 3.05.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 2.03 or 3.01, with respect to Senior Notes of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
"Event of Default" has the meaning specified in Section 5.01.
"Global Security" means, with respect to any series of Senior Notes issued
hereunder, a Senior Note that is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with Section 2.03 of this Indenture and any
indenture supplemental hereto.
"Holder", when used with respect to any Senior Note, means the Person in
whose name the Senior Note is registered in the Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of the particular series of Senior Notes established as
contemplated by Section 3.01.
"Interest Payment Date", when used with respect to any series of Senior
Notes, means the dates established for the payment of interest thereon, as
provided in the supplemental indenture for such series.
"Maturity" when used with respect to any Senior Note, means the date on
which the principal of such Senior Note or an installment of principal becomes
due and
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<PAGE> 9
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Senior Notes, means, as of the
date of determination, all Senior Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Senior Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Senior Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or 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 Senior Notes; provided that if such Senior Notes are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Senior Notes that have been paid or in exchange for or in lieu of
which other Senior Notes have been authenticated and delivered pursuant to this
Indenture, other than any such Senior Notes in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Senior Notes
are held by a protected purchaser in whose hands such Senior Notes are valid
obligations of the Company; and
(iv) Senior Notes, or portions thereof, converted into or exchanged for
another security if the terms of such Senior Notes provide for such conversion
or exchange;
provided, however, that in determining, during any period in which
any Senior Notes of a series are owned by any Person other than the Company or
any Affiliate thereof, whether the Holders of the requisite principal amount of
Outstanding Senior Notes of such series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Senior Notes of
such series owned by the Company or any Affiliate thereof shall be disregarded
and deemed not to be Outstanding. In determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Senior Notes that a Responsible Officer of the
Trustee knows to be so owned by the Company or an Affiliate of the Company in
the above circumstances shall be so disregarded. Senior Notes so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the
4
<PAGE> 10
satisfaction of the Trustee the pledgee's right so to act with respect to such
Senior Notes and that the pledgee is not the Company or any Affiliate of the
Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Senior Notes on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Senior Note means every previous
Senior Note evidencing all or a portion of the same debt as that evidenced by
such particular Senior Note; and, for the purposes of this definition, any
Senior Note authenticated and delivered under Section 3.04 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Senior Note.
"Redemption Date" , when used with respect to any Senior Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" , when used with respect to any Senior Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Senior Notes of any series means the date specified for that purpose as
contemplated by Section 3.01, whether or not a Business Day.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.03.
"Senior Note" has the meaning stated in the first recital of this Indenture
and more particularly means any Senior Notes authenticated and delivered under
this Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Senior Notes of any series means a date fixed by the Trustee pursuant to Section
3.05.
"Stated Maturity" , when used with respect to any Senior Note or any
installment of principal thereof or interest thereon, means the date specified
in such Senior Note as the fixed date on which the principal of such Senior Note
or such installment of principal or interest is due and payable.
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<PAGE> 11
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Trust Indenture Act or provision, as the case may be, as
amended or replaced from time to time. "
Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Senior Notes pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Senior Notes of any series shall mean the
Trustee with respect to Senior Notes of that series.
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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SECTION 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
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 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 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.
SECTION 1.04 ACTS OF HOLDERS
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given 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.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders 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 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) 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 the execution thereof. Where such
execution is by a signer in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
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(c) The principal amount and serial numbers of Senior Notes held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of any Senior Note shall bind every
future Holder of the same Senior Note and the Holder of every Senior 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 or the Company in reliance thereon, whether or not notation of such
action is made upon such Senior Note.
(e) The fact and date of execution of any such instrument or writing and
the authority of the Person executing the same may also be proved in any other
manner which the Trustee deems sufficient; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in this
Section.
(f) If the Company shall solicit from the Holders of Senior Notes of any
series any Act, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Holders of Senior Notes entitled
to take such Act, but the Company shall have no obligation to do so. Any such
record date shall be fixed at the Company's discretion. If such a record date is
fixed, such Act may be sought or given before or after the record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders of Senior Notes for the purpose of determining whether
Holders of the requisite proportion of Senior Notes of such series Outstanding
have authorized or agreed or consented to such Act, and for that purpose the
Senior Notes of such series Outstanding shall be computed as of such record
date.
SECTION 1.05 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, election,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of a Senior Note or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention: Capital
Markets Fiduciary Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Secretary, at 1740 Broadway, New York, New York 10019, or at
any other address previously furnished in writing to the Trustee by the Company,
with a copy to the attention of Jonathan L. Freedman, Esq., at Dewey Ballantine
LLP, 1301 Avenue of the Americas, New York, New York 10019.
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SECTION 1.06 NOTICE TO HOLDERS OF SENIOR NOTES; WAIVER
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Senior Notes of any event, such notice shall
be sufficiently given if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In case 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 shall constitute
a sufficient notification for every purpose hereunder. 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.
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 of Senior Notes 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 TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act 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 herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE
In case any provision in this Indenture or the Senior Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 BENEFITS OF INDENTURE
Nothing in this Indenture or the Senior Notes, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the
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Holders of Senior Notes any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12 GOVERNING LAW
This Indenture and the Senior Notes shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
SECTION 1.13 LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Senior Note shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Senior Notes) payment of
interest or principal (and premium, if any) need not be made on such date, but
may be made on the next succeeding Business Day, except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECTION 2.01 FORMS GENERALLY
The Senior Notes of each series shall be in substantially the form appended
to the supplemental indenture authorizing such series, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and 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 as may,
consistently herewith, be determined by the officers executing such Senior
Notes, as evidenced by their execution of the Senior Notes.
The Senior Notes of each series shall be issuable in registered form
without coupons.
The definitive Senior Notes may be printed, typewritten, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Senior Notes, as evidenced by their
execution of such Senior Notes.
SECTION 2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The form of the Trustee's Certificate of Authentication for a series of
Senior Notes shall be in substantially the form appended to the Supplemental
Indenture authorizing such series.
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SECTION 2.03 SENIOR NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY
(a) If the Company shall establish pursuant to Section 3.01 that the
Senior Notes of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 3.02 and the Company Order delivered
to the Trustee thereunder, authenticate and deliver such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Senior Notes of such
series to be represented by such Global Security or Securities, (ii) may provide
that the aggregate amount of Outstanding Senior Notes represented thereby may
from time to time be increased or reduced to reflect exchanges, (iii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iv) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (v) shall bear a legend in
accordance with the requirements of the Depositary.
(b) Notwithstanding any other provision of this Section 2.03 or of
Section 3.03, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Senior Notes, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section
3.03, only to a nominee of the Depositary for such Global Security, or to the
Depositary, or to a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Senior Notes
for such series shall no longer be eligible or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security. If a successor Depositary for such Global Security is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Senior Notes of such series in exchange for such Global Security,
will authenticate and deliver individual Senior Notes of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
(2) The Company may at any time and in its sole discretion determine
that the Senior Notes of any series issued or issuable in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of individual
Senior Notes of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Senior Notes of such series
of like tenor and terms in definitive form in an aggregate principal
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amount equal to the principal amount of such Global Security or Securities
representing such series in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 3.01 with respect
to Senior Notes issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Senior Notes of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (A) to each
Person specified by such Depositary a new Senior Note or Notes of the same
series of like tenor and terms and of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (B) to such Depositary
a new Global Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Senior Notes delivered to
Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Senior Notes in definitive form in authorized denominations.
Upon the exchange of the entire principal amount of a Global Security for
individual Senior Notes, such Global Security shall be cancelled by the Trustee.
Except as provided in the preceding paragraph, Senior Notes issued in exchange
for a Global Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. Provided that the Company and the Trustee have so
agreed, the Trustee shall deliver such Senior Notes to the Persons in whose
names the Senior Notes are registered.
(5) Any endorsement of a Global Security to reflect the amount, or
any increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Senior Notes represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered pursuant to Section 3.02 with respect thereto. Subject to the
provisions of Section 3.02, the Trustee shall deliver and redeliver any such
Global Security in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 3.02 has been, or simultaneously is, delivered, any
instructions by the Company with respect to such Global Security shall be in
writing but need not be accompanied by or contained in an Officers' Certificate
and need not be accompanied by an Opinion of Counsel.
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ARTICLE THREE
THE SENIOR NOTES
SECTION 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Senior Notes which may be authenticated
and delivered under this Indenture is unlimited.
The Senior Notes may be issued in one or more series. There may be
established, pursuant to one or more indentures supplemental hereto, prior to
the issuance of Senior Notes of any series,
(1) the title of the Senior Notes of the series (which shall
distinguish the Senior Notes of the series from Senior Notes of all other
series);
(2) any limit upon the aggregate principal amount of the Senior Notes
of the series which may be authenticated and delivered under this Indenture
(except for Senior Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Senior Notes of the series
pursuant to Sections 2.03, 3.03, 3.04, 9.07 or 11.07);
(3) the Person to whom interest on a Senior Note of the series shall
be payable if other than the Person in whose name that Senior Note (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Senior Notes of
the series is payable;
(5) the rate or rates at which the Senior Notes of the series shall
bear interest, if any, or any method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the Regular
Record Date for the interest payable on Senior Notes on any Interest Payment
Date and the basis upon which interest shall be calculated if other than that of
a 360-day year consisting of twelve 30-day months;
(6) the place or places where the principal of (and premium, if any)
and interest, if any, on Senior Notes of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Senior Notes of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Senior Notes of the series pursuant to any sinking fund or analogous provision
or at the option of a Holder thereof and the period or periods within which, the
price or prices at
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which, and the terms and conditions upon which, Senior Notes of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the denominations in which Senior Notes of the series shall be
issuable;
(10) if the amount of payments of principal of (and premium, if any)
or interest on the Senior Notes of the series may be determined with reference
to an index or formula, the manner in which such amounts shall be determined;
(11) if other than the principal amount thereof, the portion of the
principal amount of Senior Notes of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(12) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company as provided herein pertaining to the
Senior Notes of the series, and any change in the rights of the Trustee or
Holders of such series pursuant to Section 9.01 or 9.02;
(13) any additions to the definitions currently set forth in this
Indenture with respect to such series;
(14) whether the Senior Notes of the series shall be issued in whole
or in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for certificated Senior Notes of such series and
of like tenor of any authorized denomination and the circumstances under which
such exchange may occur, if other than in the manner provided for in Section
2.03; the Depositary for such Global Security or Securities; and the form of any
legend or legends to be borne by any such Global Security in addition to or in
lieu of the legend referred to in Section 2.03;
(15) any restriction or condition on the transferability of such
Senior Notes; and
(16) any other terms of the series.
All Senior Notes of any one series shall be substantially identical except as to
the date or dates from which interest, if any, shall accrue and denomination and
except as may otherwise be provided in the terms of such Senior Notes determined
or established as provided above. All Senior Notes of any one series need not be
issued at the same time and, unless otherwise provided, a series may be reopened
for issuances of additional Senior Notes of such series.
SECTION 3.02 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Senior Notes shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal
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reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Senior Notes may be
manual or facsimile.
Senior Notes bearing the manual or facsimile signatures of individuals who
were at the time relevant to the authorization thereof the proper 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 Senior Notes or did not hold such offices at the date of such
Senior Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Senior Notes of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Senior Notes, and the Trustee, in accordance
with the Company Order, shall authenticate and deliver such Senior Notes. If all
of the Senior Notes of any series are not to be issued at one time and if the
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Senior Notes and determining the terms of particular Senior Notes of such
series, such as interest rate, maturity date, date of issuance and date from
which interest shall accrue. In authenticating Senior Notes hereunder, and
accepting the additional responsibilities under this Indenture in relation to
such Senior Notes, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon:
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Senior Notes or the manner of
determining such terms have been established in conformity with the provisions
of this Indenture; and
(b) such Senior Notes, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles; and
(2) an Officers' Certificate stating, to the best knowledge of each
signer of such certificate, that no event which is, or after notice or lapse of
time would become, an Event of Default with respect to any of the Senior Notes
shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Senior Notes if
the issue of such Senior Notes pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Senior Notes and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
If all the Senior Notes of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and Officers'
Certificate at the time of
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issuance of each such Senior Note, but such opinion and certificate shall be
delivered at or before the time of issuance of the first Senior Note of such
series to be issued.
Each Senior Note shall be dated the date of its authentication.
No Senior Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Senior
Note a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Senior Note shall be conclusive evidence, and the only evidence, that such
Senior Note has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture.
SECTION 3.03 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at the office of the security
registrar designated pursuant to this Section 3.03 or Section 10.02 (the
"Securities Registrar") a register (referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Senior Notes and of transfers and
exchanges of Senior Notes. The Trustee is hereby initially appointed as Security
Registrar for the purpose of registering Senior Notes and transfers and
exchanges of Senior Notes as herein provided.
Subject to Section 2.03, upon surrender for registration of transfer
of any Senior Note of any series at the office or agency maintained for such
purpose for such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Senior Notes of the same series, Stated Maturity
and original issue date, of any authorized denominations and of like tenor and
aggregate principal amount.
Subject to Section 2.03, Senior Notes of any series may be exchanged,
at the option of the Holder, for Senior Notes of the same series, Stated
Maturity and original issue date, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Senior Notes to be
exchanged at any such office or agency.
Whenever any Senior Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Senior Notes
that the Holder making the exchange is entitled to receive.
All Senior Notes issued upon any registration of transfer or exchange
of Senior Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Senior
Notes surrendered upon such registration of transfer or exchange.
Every Senior Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and
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the Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Senior 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 Senior Notes, other
than exchanges pursuant to Section 3.04, 9.07 or 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Senior Notes of any series during a period of 15 days
immediately preceding the date notice is given identifying the serial numbers of
the Senior Notes of that series called for redemption, or (ii) to issue, to
register the transfer of or to exchange any Senior Notes so selected for
redemption in whole or in part, except the unredeemed portion of any Senior Note
being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.04 MUTILATED, DESTROYED, LOST AND STOLEN SENIOR NOTES
If any mutilated Senior Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Senior Note of the same series, Stated Maturity and original
issue date, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Senior
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 Senior Note has been acquired by a
protected purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Senior Note, a new Senior Note of the same series, Stated Maturity and original
issue date, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Senior Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Senior Note, pay such Senior Note.
Upon the issuance of any new Senior Note under this Section, the
Company 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.
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Every new Senior Note of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Senior Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Senior Note shall be at any time enforceable by anyone, and any
such new Senior Note shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Senior Notes of that series
duly issued hereunder.
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 Senior Notes.
SECTION 3.05 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Senior Notes, interest on any Senior Note that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Senior Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Senior Note of any series that is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Senior Notes of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Senior Note of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Senior Notes of such
series at the address of such Holder as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such
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Defaulted Interest shall be paid to the Persons in whose names the Senior
Notes of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Senior Notes of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Senior Notes may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Senior Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Senior Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Senior Note.
SECTION 3.06 PERSONS DEEMED OWNERS
Prior to due presentment of a Senior 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 Senior Note is registered as the
absolute owner of such Senior Note for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.05) interest on
such Senior Note and for all other purposes whatsoever, whether or not such
Senior Note be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.07 CANCELLATION
All Senior Notes surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Senior Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Senior Notes so delivered shall be cancelled by the
Trustee. No Senior Notes shall be authenticated in lieu of or in exchange for
any Senior Notes canceled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Senior Notes held by the Trustee
shall be disposed of by the Trustee in accordance with its customary procedures
unless the Company by Company Order shall otherwise direct.
SECTION 3.08 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 3.01 for
Senior Notes of any series, interest on the Senior Notes of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 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 Senior Notes herein 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 Senior Notes theretofore authenticated and delivered (other
than (i) Senior Notes that have been destroyed, lost or stolen and that have
been replaced as provided for in Section 3.04 and (ii) Senior 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, as provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Senior Notes not theretofore delivered to the Trustee
for cancellation have become due and payable, or have been called for
redemption,
and the Company, in the case of (B) above, has deposited or caused to
be deposited with the Trustee as funds in trust for the purpose described above
an amount sufficient to pay and discharge the entire indebtedness on such Senior
Notes not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of the Stated Maturity or
Redemption Date, as the case may be, or if later, the date of payment;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
In the event there are Senior Notes of two or more series hereunder,
the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Senior Notes of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there are two or more Trustees
hereunder, then the effectiveness of any such instrument shall be conditioned
upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been
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deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02 APPLICATION OF TRUST
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Senior Notes, and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company or an Affiliate acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01 EVENTS OF DEFAULT
"Event of Default", wherever used herein with respect to Senior Notes
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
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):
(1) default in the payment of any interest upon any Senior Note of
that series when it becomes due and payable on an Interest Payment Date other
than at Maturity and continuance of such default for a period of thirty (30)
days; or
(2) default in the payment of the principal of, (or premium, if any)
or interest on any Senior Note of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Senior Note of that series and continuance of such default
for a period of three Business Days; or
(4) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of one or more series of Senior Notes other than that series), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Senior Notes of that series, 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
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(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition by
one or more Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for 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 for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company 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 the Company in furtherance of any such action;
or
(7) any other Event of Default provided with respect to Senior Notes
of that series in the supplemental indenture authorizing such series.
SECTION 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default with respect to Senior Notes of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Senior Notes of that series may declare the principal amount (or
such portion of the principal amount as may be specified in the terms of that
series) of all of the Senior Notes of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Senior Notes of any series 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 provided, the Holders of not less than a majority in principal amount of
the Outstanding Senior Notes
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of that series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Senior Notes of that series,
(B) the principal of (and premium, if any) any Senior Notes of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
such Senior Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Senior Notes, and
(D) 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 any other amounts due to the Trustee under Section
6.07; and
(2) all Events of Default with respect to Senior Notes of that
series, other than the non-payment of the principal of Senior Notes of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
The Company covenants that if an Event of Default occurs under Section
5.01(1), (2) or (3) with respect to any Senior Notes the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Senior
Notes, the whole amount then due and payable on such Senior Notes for principal
(and premium, if any) and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate or rates prescribed
therefor in such Senior Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
6.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Senior Notes and collect the
moneys adjudged or decreed to
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be payable in the manner provided by law out of the property of the Company or
any other obligor upon such Senior Notes, wherever situated.
If an Event of Default with respect to Senior Notes of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Senior Notes of such
series by such appropriate judicial proceedings as the Trustee 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 herein, or to enforce any other proper remedy.
SECTION 5.04 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Senior
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Senior
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Senior Notes
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 6.07) and of
the Holders of Senior Notes allowed in such judicial proceeding, and
(2) 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 of Senior Notes to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of Senior Notes, 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
6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Senior
Note any plan of reorganization, arrangement, adjustment or composition
affecting the Senior Notes or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder of a Senior Note in
any such proceeding.
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SECTION 5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SENIOR NOTES
All rights of action and claims under this Indenture or the Senior
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Senior 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 counsel, be for the
ratable benefit of the Holders of the Senior Notes in respect of which such
judgment has been recovered.
SECTION 5.06 APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Senior Notes, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under Section
6.07; and
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Senior Notes in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Senior Notes for principal (and premium, if any) and interest,
respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.07 LIMITATION ON SUITS
No Holder of any Senior Note of any series 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 has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Senior Notes of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Senior Notes of that series 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 have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Senior Notes of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever 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 to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST
Notwithstanding any other provision in this Indenture, the Holder of
any Senior Notes shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.05) interest on such Senior Note on the due dates expressed in such
Senior Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder of a Senior Note 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 or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Senior Notes shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Senior Notes in the last
paragraph of Section 3.04, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Senior Notes is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 5.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Senior
Note to exercise any right or remedy upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders of Senior Notes may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Senior Notes.
SECTION 5.12 CONTROL BY HOLDERS OF SENIOR NOTES
The Holders of not less than a majority in principal amount of the
Outstanding Senior Notes of any series 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 Senior Notes of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer of the
Trustee shall, in good faith, determine that such proceeding so directed would
be unjustly prejudicial to the Holders not joining in any such direction or
would involve the Trustee in personal liability.
SECTION 5.13 WAIVER OF PAST DEFAULTS
Subject to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Senior Notes of any series may, on behalf of
the Holders of all the Senior Notes of such series, waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Senior Note of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Senior Note of such series affected.
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.
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SECTION 5.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Senior
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, 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, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Senior Notes of any series, or to any suit instituted
by any Holder of any Senior Note for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Senior Note on or after the
Stated Maturity or Maturities expressed in such Senior Note (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15 WAIVER OF 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 stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this 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 herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01 CERTAIN DUTIES AND RESPONSIBILITIES
(a) Except during the continuance of an Event of Default with respect to
Senior Notes of any series,
(1) the Trustee undertakes to perform, with respect to Senior Notes
of such series, 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; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Senior Notes of such series, 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 conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default with respect to Senior Notes of any series
has occurred and is continuing, the Trustee shall exercise, with respect to
Senior Notes of such series, such of 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Senior Notes of
any series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Senior
Notes of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial 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.
(d) 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.
SECTION 6.02 NOTICE OF DEFAULTS
Within 90 days after the occurrence of any default hereunder with
respect to the Senior Notes of any series, the Trustee shall transmit by mail to
all Holders of Senior Notes of such series entitled to receive reports pursuant
to Section 3.13(c) of the Trust Indenture Act, notice of all defaults hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Senior Note of such series
or in the payment of any sinking fund installment with respect to Senior Notes
of such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of
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directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Senior Notes
of such series; and provided, further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Senior Notes of such
series, no such notice to Holders shall be given until at least 45 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Senior Notes of such series.
SECTION 6.03 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 6.01:
(a) 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;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and a resolution of
the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) 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 herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) 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;
(e) 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 of Senior Notes of any series pursuant to this Indenture, unless
such Holders 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;
(f) 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;
(g) 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; and
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(h) the Trustee shall not be charged with knowledge of any Event of
Default with respect to the Senior Notes of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of such Event of Default
shall have been given to the Trustee by the Company, any other obligor on such
Senior Notes or by any Holder of such Senior Notes.
(i) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SENIOR NOTES
The recitals contained herein and in the Senior Notes (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Senior Notes. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Senior Notes or the proceeds thereof.
SECTION 6.05 MAY HOLD SENIOR NOTES
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Senior Notes and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06 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. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.07 COMPENSATION AND REIMBURSEMENT
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, 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
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and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith; 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.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Senior Notes upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on particular Senior Notes.
This indemnification shall survive the resignation or removal of the
Trustee and the termination of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.08 DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, 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 Trust Indenture Act and this Indenture.
SECTION 6.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a 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 Trust Indenture Act to act as Trustee under an Indenture
qualified under the Trust Indenture Act. 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, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital 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, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
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SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Senior Notes of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 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 with respect to the
Senior Notes of such series.
(c) The Trustee may be removed at any time with respect to the Senior Notes
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Senior Notes of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder of a Senior Note who has been a
Holder of a Senior Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) 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 Board Resolution, may remove the
Trustee with respect to all Senior Notes, or (ii) subject to Section 5.14, any
Holder of a Senior Note who has been a bona fide Holder of a Senior Note for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Senior Notes and the appointment of a successor Trustee or
Trustees.
(e) 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, with
respect to the Senior Notes of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Senior Notes of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Senior Notes of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Senior Notes of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
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resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Senior Notes of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Senior Notes of such series 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 6.11, become the successor Trustee with respect to the Senior Notes of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Senior Notes of any series
shall have been so appointed by the Company or the Holders of Senior Notes and
accepted appointment in the manner required by Section 6.11, any Holder of a
Senior Note who has been a bona fide Holder of a Senior Note of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Senior Notes of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Senior Notes of any series and each appointment
of a successor Trustee with respect to the Senior Notes of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of such series of Senior Notes as their names and addresses appear in
the Security Register.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Senior Notes, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company 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 the 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Senior Notes of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Senior Notes
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Senior Notes of
that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Senior Notes,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Senior Notes of that or those series as to which the
retiring Trustee is not retiring shall continue to be
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vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each 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 with respect to the Senior Notes of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Senior Notes
of that or those series to which the appointment of such successor Trustee
relates.
(c) 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 referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) 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.
(e) Notwithstanding the replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.07 shall continue for the
benefit of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
SECTION 6.12 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. In case any Senior 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 Senior Notes so authenticated with the same
effect as if such successor Trustee had itself authenticated such Senior Notes.
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SECTION 6.13 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 Senior Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "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
(b) "self-liquidating paper" means any draft, bill 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, bill of exchange, acceptance or obligation.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT
At any time when any of the Senior Notes remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Senior Notes that shall be authorized to act on behalf of the
Trustee to authenticate Senior Notes of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.04, and Senior 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 delivery of Senior 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
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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.
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, 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 in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Senior
Notes, if any, of the series with respect to which such Authenticating Agent
will serve, as their names and addresses appear in the Security Register. 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.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 3.06, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Senior Notes of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Senior Notes of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By: As Authenticating Agent
By: Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than June 1 and December 1, in each year, a
list, in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
Senior Notes as of the preceding May 15 or November 15, as the case may be, and
(b) at such other times as the Trustee may 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 the most recent Regular Record Date;
provided, however, that no such list need be provided so long as the Trustee is
the Security Registrar.
SECTION 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
(a) The Trustee shall comply with the obligations imposed on it pursuant to
Section 312 of the Trust Indenture Act.
(b) Every Holder of Senior Notes, 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 the
disclosure of any such information as to the names and addresses of the Holders
of Senior Notes in accordance with Section 312(b) of the Trust Indenture Act,
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 Trust Indenture Act.
SECTION 7.03 REPORTS BY TRUSTEE
(a) Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Senior Notes pursuant to this Indenture, if
required by Section 313(a) of the Trust Indenture Act, 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.
(b) The Trustee shall transmit the reports required by Section 313(b) of
the Trust Indenture Act at the times specified therein.
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(c) Reports pursuant to this Section shall be transmitted in the manner and
to the Persons required by Sections 313(c) and (d) of the Trust Indenture Act.
SECTION 7.04 REPORTS BY COMPANY
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, 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 Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; 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 Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, 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;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, 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;
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Senior Notes, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (1) and (2) of this Section 7.04 as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) notify the Trustee when and as the Senior Notes of any series
become admitted to trading on any national securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01 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, unless
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(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Senior Notes and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transactions, 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; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION 8.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation by the Company with or merger by the
Company into any corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Senior Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders of Senior Notes, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Senior Notes; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Senior Notes (and if such covenants are to be
for the benefit of less than all series of Senior Notes, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture, to
change or eliminate any restrictions on the payment of principal (or premium, if
any) on Senior Notes or to permit the issuance of Senior Notes in uncertificated
form, provided any such action shall not adversely affect the interests of the
Holders of Senior Notes of any series in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture
with respect to any series of Senior Notes theretofore unissued; or
(6) to secure the Senior Notes; or
(7) to establish the form or terms of Senior Notes of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Senior Notes of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
provisions with respect to matters or questions arising under this indenture,
provided such action shall not adversely affect the interests of the Holders of
Senior Notes of any series in any material respect; or
(10) 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 Trust Indenture Act or under any similar federal statute
hereafter enacted, and to add to this Indenture such other provisions as may be
expressly required by the Trust Indenture Act.
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Senior Notes of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of
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modifying in any manner the rights of the Holders of Senior Notes of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Senior Note
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Senior Note, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the method of calculating the rate of
interest thereon, or 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), or
(2) reduce the percentage in principal amount of the Outstanding
Senior Notes of any series, 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, or
(3) modify any of the provisions of this Section 9.02, Section 5.13
or Section 10.07, 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 Outstanding Senior Note affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder of a Senior Note with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 10.07, or the
deletion of this proviso, in accordance with the requirements of Sections
6.11(b) and 9.01(8).
SECTION 9.03 GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE
(a) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Senior Notes, or which
modifies the rights of the Holders of Senior Notes of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Senior Notes of any other series.
(b) It shall not be necessary for any Act of Holders of Senior Notes
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act or action shall approve the
substance thereof.
SECTION 9.04 EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, in
addition to the documents required by Section 1.02, 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
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obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 9.05 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article,
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 Senior Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.07 REFERENCE IN SENIOR NOTES TO SUPPLEMENTAL INDENTURES
Senior Notes of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article 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 Senior 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 Senior Notes of such series.
ARTICLE TEN
COVENANTS
SECTION 10.01 PAYMENT OF PRINCIPAL AND INTEREST
The Company covenants and agrees for the benefit of each series of
Senior Notes that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Senior Notes of that series in accordance with the
terms of the Senior Notes and this Indenture.
SECTION 10.02 MAINTENANCE OF OFFICE OR AGENCY
The Company or its Affiliate will maintain an office or agency where
Senior Notes of each series may be presented or surrendered for payment, where
Senior Notes of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Senior Notes of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and 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 in respect of any series of Senior
Notes or shall fail to furnish the Trustee with the address thereof,
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such presentations and surrenders of Senior Notes of that series may be made and
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
such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 10.03 MONEY FOR SENIOR NOTES PAYMENTS TO BE HELD IN TRUST
If the Company or one of its Affiliates shall at any time act as its
own Paying Agent with respect to any series of Senior Notes, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Senior Notes of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Senior Notes, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Senior Notes of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Senior
Notes 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Senior Notes of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Senior Notes of that series) in the making of any payment
of principal of (and premium, if any) or interest on the Senior Notes of that
series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
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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.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Senior Note of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable 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 Senior
Note shall thereafter, as an unsecured general 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 of general
circulation in New York City 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.
SECTION 10.04 CORPORATE EXISTENCE
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors 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.
SECTION 10.05 [RESERVED]
SECTION 10.06 STATEMENT AS TO COMPLIANCE
(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with Section
1.02, signed by the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to his or her knowledge
of the Company's compliance with all conditions and covenants under this
Indenture. For purposes of this Section 10.06, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
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(b) The Company shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any Event of Default and any event which
after notice or lapse of time or both would become an Event of Default pursuant
to Section 5.01.
SECTION 10.07 WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.04 with respect to the
Senior Notes of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Senior Notes of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision 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 term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SENIOR NOTES
SECTION 11.01 APPLICABILITY OF ARTICLE
Senior Notes of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Senior Notes of any
series) in accordance with this Article.
SECTION 11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Senior Notes shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of all of the Senior Notes of any series, 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 in
writing of such Redemption Date. In case of any redemption at the election of
the Company of less than all the Senior Notes of any series, 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 in
writing of such Redemption Date and of the principal amount of Senior Notes of
such series to be redeemed. In the case of any redemption of Senior Notes (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Senior Notes or elsewhere in this Indenture, or (ii) pursuant to
an election of the Company which is subject to a condition specified in the
terms of such Senior Notes, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
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SECTION 11.03 SELECTION BY TRUSTEE OF SENIOR NOTES TO BE REDEEMED
If the Senior Notes are registered in the name of only one Holder, any
partial redemptions shall be pro rata. If the Senior Notes are held in
definitive form by more than one Holder and if less than all the Senior Notes of
any series are to be redeemed, the particular Senior Notes to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Senior Notes of such series not previously called for
redemption, by lot or other such method as the Trustee shall deem fair and
appropriate.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Senior Notes shall
relate, in the case of any Senior Notes redeemed or to be redeemed only in part,
to the portion of the principal amount of such Senior Notes which has been or is
to be redeemed.
SECTION 11.04 NOTICE OF REDEMPTION
Notice of redemption shall be given in the manner provided in
Section 1.06 to the Holders of Senior Notes to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Senior Notes of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Senior Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Senior Note to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Senior Notes are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Senior Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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SECTION 11.05 DEPOSIT OF REDEMPTION PRICE
Except as otherwise provided in a supplemental indenture pursuant to
Section 3.01, prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or its Affiliate is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 10.03)
an amount of money sufficient to pay the Redemption Price of and accrued and
unpaid interest, if any, on all the Senior Notes which are to be redeemed on
that date.
SECTION 11.06 SENIOR NOTES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, the Senior Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified together with any accrued and unpaid interest
thereon, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued and unpaid interest) such Senior
Notes shall cease to bear interest. Upon surrender of any such Senior Note for
redemption in accordance with such notice, such Senior Note shall be paid by the
Company at the Redemption Price, together with accrued and unpaid interest, if
any; provided, however, that, except as otherwise provided in a supplemental
indenture pursuant to Section 3.01, installments of interest on Senior Notes
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Senior Notes, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.05.
If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Senior Note.
SECTION 11.07 SENIOR NOTES REDEEMED IN PART
Any Senior Note that is to be redeemed only in part shall be
surrendered at an office or agency of the Company therefor (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 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 Senior Note without service charge, a new Senior Note of the same series,
Stated Maturity and original issue date of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Senior Note so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01 APPLICABILITY OF ARTICLE
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Senior Notes of a series except as otherwise specified as
contemplated by Section 3.01 for Senior Notes of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Senior Notes of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Senior Notes of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Senior Notes of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Senior Notes of any series as provided for by the
terms of Senior Notes of such series.
SECTION 12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SENIOR NOTES
The Company (1) may deliver Outstanding Senior Notes of a series
(other than any previously called for redemption), and (2) may apply as a credit
Senior Notes of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Senior Notes or through the application of
permitted optional sinking fund payments pursuant to the terms of such Senior
Notes, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Senior Notes of such series required to be made
pursuant to the terms of such Senior Notes as provided for by the terms of such
series; provided that such Senior Notes have not been previously so credited.
Such Senior Notes shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Senior Notes for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 12.03 REDEMPTION OF SENIOR NOTES FOR SINKING FUND
Not less than 60 days prior to each sinking fund payment date for any
series of Senior Notes, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Senior Notes of that series
pursuant to Section 12.02 and stating the basis for such credit and that such
Senior Notes have not previously been so credited and will also deliver to the
Trustee any Senior Notes to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Senior Notes to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.03 and cause notice
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of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Senior Notes shall be made upon the terms and in
the manner stated in Sections 11.06 and 11.07.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 NO RECOURSE AGAINST OTHERS
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Senior Notes or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Senior Note, each Holder shall waive and release all
such liability. Such waiver and release shall be part of the consideration for
the issue of the Senior Notes.
SECTION 13.02 ASSIGNMENT; BINDING EFFECT
The Company shall have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
subsidiary of the Company, provided that, in the event of any such assignment,
the Company shall remain primarily liable for the performance of all such
obligations. This Indenture may also be assigned by the Company in connection
with a transaction described in Article Eight. This Indenture shall be binding
upon and inure to the benefit of the Company, the Trustee, the Holders, any
Security Registrar, Paying Agent, and Authenticating Agent and their respective
successors and assigns.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
THE MONY GROUP INC.
By: /s/ Richard Daddario
-------------------------------------
Name: Richard Daddario
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
Trustee
By: /s/ Gemmel Richards
-------------------------------------
Name: Gemmel Richards
Title: Assistant Vice President
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EXHIBIT 4.3
THE MONY GROUP INC.
TO
THE CHASE MANHATTAN BANK,
TRUSTEE.
SUBORDINATED NOTE INDENTURE
DATED AS OF JANUARY 11, 2000
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TABLE OF CONTENTS
<TABLE>
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Page
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Parties..................................................................................................1
Recitals of the Company..................................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................1
SECTION 1.01. DEFINITIONS...............................................................................1
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS......................................................7
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE....................................................8
SECTION 1.04. ACTS OF HOLDERS...........................................................................9
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY....................................................10
SECTION 1.06. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES; WAIVER...................................10
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT........................................................11
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS.................................................11
SECTION 1.09. SUCCESSORS AND ASSIGNS...................................................................11
SECTION 1.10. SEPARABILITY CLAUSE......................................................................11
SECTION 1.11. BENEFITS OF INDENTURE....................................................................11
SECTION 1.12. GOVERNING LAW............................................................................11
SECTION 1.13. LEGAL HOLIDAYS...........................................................................11
ARTICLE TWO FORMS OF JUNIOR SUBORDINATED NOTES..........................................................12
SECTION 2.01. FORMS GENERALLY..........................................................................12
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..........................................12
</TABLE>
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<TABLE>
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SECTION 2.03. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY......................12
ARTICLE THREE THE JUNIOR SUBORDINATED NOTES.............................................................14
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.....................................................14
SECTION 3.02. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...........................................16
SECTION 3.03. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE......................................18
SECTION 3.04. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR SUBORDINATED NOTES..........................19
SECTION 3.05. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...........................................20
SECTION 3.06. PERSONS DEEMED OWNERS....................................................................21
SECTION 3.07. CANCELLATION.............................................................................22
SECTION 3.08. COMPUTATION OF INTEREST..................................................................22
ARTICLE FOUR SATISFACTION AND DISCHARGE.................................................................22
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE..................................................22
SECTION 4.02. APPLICATION OF TRUST MONEY...............................................................23
ARTICLE FIVE REMEDIES...................................................................................24
SECTION 5.01. EVENTS OF DEFAULT........................................................................24
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.......................................25
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE..........................26
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.........................................................27
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR SUBORDINATED NOTES...............28
</TABLE>
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<TABLE>
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SECTION 5.06. APPLICATION OF MONEY COLLECTED...........................................................28
SECTION 5.07. LIMITATION ON SUITS......................................................................29
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST................29
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.......................................................30
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE...........................................................30
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.............................................................30
SECTION 5.12. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES..........................................31
SECTION 5.13. WAIVER OF PAST DEFAULTS..................................................................31
SECTION 5.14. UNDERTAKING FOR COSTS....................................................................31
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS.........................................................32
ARTICLE SIX THE TRUSTEE.................................................................................32
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES......................................................32
SECTION 6.02. NOTICE OF DEFAULTS.......................................................................33
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE................................................................34
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR SUBORDINATED NOTES....................35
SECTION 6.05. MAY HOLD JUNIOR SUBORDINATED NOTES.......................................................35
SECTION 6.06. MONEY HELD IN TRUST......................................................................35
SECTION 6.07. COMPENSATION AND REIMBURSEMENT...........................................................36
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS..................................................37
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..................................................37
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........................................37
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...................................................39
</TABLE>
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SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS..............................40
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........................................40
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT......................................................41
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.........................................42
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS................................42
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS...................................43
SECTION 7.03. REPORTS BY TRUSTEE.......................................................................43
SECTION 7.04. REPORTS BY COMPANY.......................................................................43
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE......................................44
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.....................................44
SECTION 8.02. SUCCESSOR CORPORATION SUBSTITUTED........................................................45
ARTICLE NINE SUPPLEMENTAL INDENTURES....................................................................45
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.......................................45
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS..........................................46
SECTION 9.03. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE......................................47
SECTION 9.04. EXECUTION OF SUPPLEMENTAL INDENTURES.....................................................48
SECTION 9.05. EFFECT OF SUPPLEMENTAL INDENTURES........................................................48
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT......................................................48
</TABLE>
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<TABLE>
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SECTION 9.07. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL INDENTURES........................48
ARTICLE TEN COVENANTS ..................................................................................49
SECTION 10.01. PAYMENT OF PRINCIPAL AND INTEREST.......................................................49
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.........................................................49
SECTION 10.03. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD IN TRUST........................49
SECTION 10.04. ADDITIONAL INTEREST.....................................................................51
SECTION 10.05. CORPORATE EXISTENCE.....................................................................51
SECTION 10.06. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS......................................51
SECTION 10.07. STATEMENT AS TO COMPLIANCE..............................................................52
SECTION 10.08. WAIVER OF CERTAIN COVENANTS.............................................................52
SECTION 10.09. COVENANTS REGARDING TRUST...............................................................53
ARTICLE ELEVEN REDEMPTION OF JUNIOR SUBORDINATED NOTES..................................................53
SECTION 11.01. APPLICABILITY OF ARTICLE................................................................53
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE...................................................53
SECTION 11.03. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE REDEEMED........................54
SECTION 11.04. NOTICE OF REDEMPTION....................................................................54
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.............................................................55
SECTION 11.06. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE....................................55
SECTION 11.07. JUNIOR SUBORDINATED NOTES REDEEMED IN PART..............................................55
ARTICLE TWELVE SINKING FUNDS............................................................................56
</TABLE>
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<TABLE>
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SECTION 12.01. APPLICABILITY OF ARTICLE................................................................56
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR SUBORDINATED NOTES....................56
SECTION 12.03. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND................................56
ARTICLE THIRTEEN SUBORDINATION..........................................................................57
SECTION 13.01. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS............................57
SECTION 13.02. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC...............................................57
SECTION 13.03. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT..........................................58
SECTION 13.04. PAYMENT PERMITTED IF NO DEFAULT.........................................................59
SECTION 13.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.................................59
SECTION 13.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.............................................59
SECTION 13.07. TRUSTEE TO EFFECTUATE SUBORDINATION.....................................................60
SECTION 13.08. NO WAIVER OF SUBORDINATION PROVISIONS...................................................60
SECTION 13.09. TRUST MONEYS NOT SUBORDINATED...........................................................61
SECTION 13.10. NOTICE TO THE TRUSTEE...................................................................61
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT..........................62
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS................................62
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS....62
SECTION 13.14. ARTICLE APPLICABLE TO PAYING AGENTS.....................................................62
SECTION 13.15. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION PROVISIONS..................63
</TABLE>
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<TABLE>
<S> <C>
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS...............................................................63
SECTION 14.01. NO RECOURSE AGAINST OTHERS..............................................................63
SECTION 14.02. SET-OFF.................................................................................63
SECTION 14.03. ASSIGNMENT; BINDING EFFECT..............................................................64
SECTION 14.04. ADDITIONAL INTEREST.....................................................................64
</TABLE>
vii
<PAGE> 9
SUBORDINATED NOTE INDENTURE
THIS INDENTURE is made as of January 11, 2000, between THE
MONY GROUP INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 1740 Broadway, New York, New York 10019, and THE CHASE MANHATTAN
BANK, a banking corporation duly organized and existing under the laws of the
State of New York, having its principal corporate trust office at 450 West 33rd
Street, New York, New York 10001, as Trustee (herein called the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(herein called the "Junior Subordinated Notes"), to be issued in one or more
series as in this Indenture provided; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and
the purchase of the Junior Subordinated Notes by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Junior Subordinated Notes or of series thereof, 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 Trust Indenture Act, 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 generally accepted
accounting principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required
<PAGE> 10
or permitted hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such computation;
(4) 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; and
(5) Trust Securities related to a particular
series of Junior Subordinated Notes means the series of Trust Securities the
proceeds of the sale of which were loaned to the Company in exchange for such
series of Junior Subordinated Notes, and the guarantee related to such series
of Trust Securities means the guarantee pursuant to which the Company has
guaranteed, to the extent stated therein, the payment of distributions and
certain other amounts with respect to such series of Trust Securities.
Certain terms, used principally in Article Six, are defined
in that Article.
"Act", when used with respect to any Holder of a Junior
Subordinated Note, has the meaning specified in Section 1.04.
"Additional Interest" means (i) such additional amounts as
may be required so that the net amounts received and retained by the Holder (if
the Holder is a Securities Trust) after paying taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority will not be less than the
amounts the Holder would have received had no such taxes, duties, assessments
or other governmental charges been imposed; and (ii) any interest due and not
paid on an Interest Payment Date, together with interest thereon from such
Interest Payment Date to the date of payment, compounded quarterly, on each
Interest Payment Date.
"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. Notwithstanding the foregoing, any Securities Trust organized by the
Company shall not be deemed to be an Affiliate of the Company.
"Authenticating Agent" means any Person or Persons authorized
by the Trustee to authenticate one or more series of Junior Subordinated Notes.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of the officers and/or directors
of the Company appointed by that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of
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<PAGE> 11
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed, or (iii) a day on which
the Trustee's Corporate Trust Office or Property Trustee's principal corporate
trust office is closed for business.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by an independent public accountant or a firm of
independent public accountants who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants. Such accountant or firm shall be entitled to rely upon an Opinion
of Counsel as to the interpretation of any legal matters relating to such
certificate.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"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 Request" means a written request or order signed in
the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee in
the Borough of Manhattan, New York City, at which at any particular time its
corporate trust business shall be principally administered, which office at the
date of execution of this Indenture is located at 450 West 33rd Street, New
York, New York 10001.
"corporation" includes corporations, partnerships, limited
liability companies, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section
3.05.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 2.03 or 3.01, with respect to Junior Subordinated
Notes of any series issuable or issued as a Global Security, The Depository
Trust Company, New York, New York, or any successor thereto registered as a
clearing agency under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation.
"Event of Default" has the meaning specified in Section 5.01.
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<PAGE> 12
"Global Security" means, with respect to any series of Junior
Subordinated Notes issued hereunder, a Junior Subordinated Note that is
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
Section 2.03 of this Indenture and any indenture supplemental hereto.
"Guarantee" means a Guarantee Agreement, if any, executed and
delivered by the Company for the benefit of the holders from time to time of
all or a portion of the Trust Securities of a Securities Trust.
"Holder", when used with respect to any Junior Subordinated
Note, means the Person in whose name the Junior Subordinated Note is registered
in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the particular series of
Junior Subordinated Notes established as contemplated by Section 3.01.
"Interest Payment Date", when used with respect to any series
of Junior Subordinated Notes, means the dates established for the payment of
interest thereon, as provided in the supplemental indenture for such series.
"Junior Subordinated Note" has the meaning stated in the
first recital of this Indenture and more particularly means any Junior
Subordinated Notes authenticated and delivered under this Indenture.
"Maturity", when used with respect to any Junior Subordinated
Note, means the date on which the principal of such Junior Subordinated Note or
an installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Outstanding", when used with respect to Junior Subordinated
Notes, means, as of the date of determination, all Junior Subordinated Notes
theretofore authenticated and delivered under this Indenture, except:
(i) Junior Subordinated Notes theretofore
canceled by the Trustee or delivered to the Trustee for cancellation;
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<PAGE> 13
(ii) Junior Subordinated Notes for whose payment
or redemption money in the necessary amount has been theretofore deposited with
the Trustee or 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 Junior Subordinated Notes; provided that
if such Junior Subordinated Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Junior Subordinated Notes that have been
paid or in exchange for or in lieu of which other Junior Subordinated Notes
have been authenticated and delivered pursuant to this Indenture, other than
any such Junior Subordinated Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Junior Subordinated
Notes are held by a protected purchaser in whose hands such Junior Subordinated
Notes are valid obligations of the Company; and
(iv) Junior Subordinated Notes, or portions
thereof, converted into or exchanged for another security if the terms of such
Junior Subordinated Notes provide for such conversion or exchange;
provided, however, that in determining, during any period in which any Junior
Subordinated Notes of a series are owned by any Person other than the Company
or any Affiliate thereof, whether the Holders of the requisite principal amount
of Outstanding Junior Subordinated Notes of such series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Junior
Subordinated Notes of such series owned by the Company or any Affiliate thereof
shall be disregarded and deemed not to be Outstanding. In determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Junior Subordinated
Notes that a Responsible Officer of the Trustee knows to be so owned by the
Company or an Affiliate of the Company in the above circumstances shall be so
disregarded. Junior Subordinated 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
Junior Subordinated Notes and that the pledgee is not the Company or any
Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Junior
Subordinated Notes on behalf of the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Junior Subordinated
Note means every previous Junior Subordinated Note evidencing all or a portion
of the same debt as that evidenced by such particular Junior Subordinated Note;
and, for the purposes of this definition, any Junior Subordinated Note
authenticated and delivered under Section 3.04 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Junior Subordinated
5
<PAGE> 14
Note shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Junior Subordinated Note.
"Property Trustee", when used with respect to the Junior
Subordinated Notes of any series, means the Person designated as such in the
related Trust Agreement.
"Redemption Date", when used with respect to any Junior
Subordinated Note to be redeemed, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price", when used with respect to any Junior
Subordinated Note to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Junior Subordinated Notes of any series means the
date specified for that purpose as contemplated by Section 3.01, whether or not
a Business Day.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Trust" means any statutory business trust formed
by the Company or an Affiliate to issue Trust Securities, the proceeds of which
will be used to purchase Junior Subordinated Notes of one or more series.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.03.
"Senior Indebtedness" means, with respect to the Company, (i)
any payment due in respect of indebtedness of the Company, whether outstanding
at the date of execution of this Indenture or thereafter incurred, created or
assumed, (a) in respect of money borrowed (including any financial derivative,
hedging or futures contract or similar instrument) and (b) evidenced by
securities, debentures, bonds, notes or other similar instruments issued by the
Company which, by their terms, are senior or senior subordinated debt
securities, including, without limitation, all obligations under its indentures
with various trustees; (ii) all capital lease obligations; (iii) all
obligations issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business and long-term purchase obligations); (iv) all
obligations for the reimbursement of any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction; (v) all obligations
of the type referred to in clauses (i) through (iv) above of other Persons the
payment of which the Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other Persons secured by any lien on any property or asset
of the Company (whether or
6
<PAGE> 15
not such obligation is assumed by the Company), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the Junior
Subordinated Notes and (2) any unsecured indebtedness between or among the
Company or its Affiliates. Such Senior Indebtedness shall continue to be
entitled to the benefits of the subordination provisions contained in Article
Thirteen irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest on the Junior Subordinated Notes of any series means a date fixed by
the Trustee pursuant to Section 3.05.
"Stated Maturity", when used with respect to any Junior
Subordinated Note or any installment of principal thereof or interest or
premium, if any, thereon, means the date specified in such Junior Subordinated
Note as the fixed date on which the principal of or premium, if any, on such
Junior Subordinated Note or such installment of principal or interest or
premium, if any, thereon, is due and payable.
"Trust Agreement", when used with respect to a Securities
Trust, means the agreement or instrument that governs the affairs of such
Securities Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Trust Indenture Act or provision, as the case
may be, as amended or replaced from time to time.
"Trust Securities" means the securities issued by a
Securities Trust evidencing the entire beneficial interest therein.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Junior Subordinated Notes pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Junior Subordinated Notes of any series shall mean the Trustee with respect to
Junior Subordinated Notes of that series.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request
7
<PAGE> 16
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
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 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 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.
8
<PAGE> 17
SECTION 1.04. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
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. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders 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 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) 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 the execution
thereof. Where such execution is by a signer in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount and serial numbers of Junior
Subordinated Notes held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of the Holder of any Junior
Subordinated Note shall bind every future Holder of the same Junior
Subordinated Note and the Holder of every Junior Subordinated 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 or
the Company in reliance thereon, whether or not notation of such action is made
upon such Junior Subordinated Note.
(e) The fact and date of execution of any such
instrument or writing and the authority of the Person executing the same may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(f) If the Company shall solicit from the Holders of
Junior Subordinated Notes of any series any Act, the Company may, at its
option, by Board Resolution, fix in advance a record date for the determination
of Holders of Junior Subordinated Notes entitled to take such Act, but the
Company shall have no obligation to do so. Any such record date shall be fixed
at the Company's discretion. If such a record date is fixed, such Act may be
sought or given before or after the record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders of
Junior
9
<PAGE> 18
Subordinated Notes for the purpose of determining whether Holders of the
requisite proportion of Junior Subordinated Notes of such series Outstanding
have authorized or agreed or consented to such Act, and for that purpose the
Junior Subordinated Notes of such series Outstanding shall be computed as of
such record date.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder of a Junior Subordinated
Note or by the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Capital Markets Fiduciary Services, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary, at 1740 Broadway, New York, New
York 10019, with a copy to Dewey Ballantine LLP, 1301 Avenue of the Americas,
New York, New York 10019, Attention: Jonathan L. Freedman, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED
NOTES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Junior Subordinated Notes of any
event, such notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
In case 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 shall constitute a sufficient notification for every purpose hereunder.
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.
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 of Junior Subordinated Notes 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.
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<PAGE> 19
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act 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 herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Junior
Subordinated Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Junior Subordinated Notes,
express or implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders of Junior Subordinated Notes and, to
the extent provided in Section 14.03, the holders of Senior Indebtedness or
Trust Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. GOVERNING LAW.
This Indenture and the Junior Subordinated Notes shall be
governed by, and construed in accordance with, the internal laws of the State
of New York.
SECTION 1.13. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Junior Subordinated Note shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the Junior
Subordinated Notes) payment of interest or principal (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day,
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue on the amount so payable for the period from and
11
<PAGE> 20
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
FORMS OF JUNIOR SUBORDINATED NOTES
SECTION 2.01. FORMS GENERALLY.
The Junior Subordinated Notes of each series shall be in
substantially the form appended to the supplemental indenture authorizing such
series, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and 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 as may, consistently herewith, be determined by the
officers executing such Junior Subordinated Notes, as evidenced by their
execution of the Junior Subordinated Notes.
The Junior Subordinated Notes of each series shall be
issuable in registered form without coupons.
The definitive Junior Subordinated Notes may be printed,
typewritten, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Junior Subordinated Notes, as evidenced by their execution of such Junior
Subordinated Notes.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The form of the Trustee's Certificate of Authentication for a
series of Junior Subordinated Notes shall be in substantially the form appended
to the Supplemental Indenture authorizing such series.
SECTION 2.03. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE
FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section
3.01 that the Junior Subordinated Notes of a particular series are to be issued
in whole or in part in the form of one or more Global Securities, then the
Company shall execute and the Trustee shall, in accordance with Section 3.02
and the Company Order delivered to the Trustee thereunder, authenticate and
deliver such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Junior Subordinated Notes of such series to be represented by
such Global Security or Securities, (ii) may provide that the aggregate amount
of Outstanding Junior Subordinated Notes represented thereby may from time to
time be increased or reduced to reflect exchanges, (iii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iv) shall be delivered by the Trustee to
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the Depositary or pursuant to the Depositary's instruction and (v) shall bear a
legend in accordance with the requirements of the Depositary.
(b) Notwithstanding any other provision of this Section
2.03 or of Section 3.03, subject to the provisions of paragraph (c) below,
unless the terms of a Global Security expressly permit such Global Security to
be exchanged in whole or in part for individual Junior Subordinated Notes, a
Global Security may be transferred, in whole but not in part and in the manner
provided in Section 3.03, only to a nominee of the Depositary for such Global
Security, or to the Depositary, or to a successor Depositary for such Global
Security selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (1) If at any time the Depositary for a Global
Security notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the Depositary for the
Junior Subordinated Notes for such series shall no longer be eligible or in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Junior Subordinated Notes of such
series in exchange for such Global Security, will authenticate and deliver
individual Junior Subordinated Notes of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security in exchange for such Global Security.
(2) The Company may at any time and in its sole
discretion determine that the Junior Subordinated Notes of any series issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of individual Junior Subordinated Notes of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Junior Subordinated Notes of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Securities representing such
series in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to
Section 3.01 with respect to Junior Subordinated Notes issued or issuable in
the form of a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for individual
Junior Subordinated Notes of such series of like tenor and terms in definitive
form on such terms as are acceptable to the Company and such Depositary.
Thereupon the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge, (A) to each Person specified by such
Depositary a new Junior Subordinated Note or Notes of the same series of like
tenor and terms and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
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(B) to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Junior Subordinated Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the
preceding three paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual Junior Subordinated Notes in definitive
form in authorized denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Junior Subordinated Notes, such
Global Security shall be cancelled by the Trustee. Except as provided in the
preceding section, Junior Subordinated Notes issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Provided that the Company and the Trustee have so agreed,
the Trustee shall deliver such Junior Subordinated Notes to the Persons in
whose names the Junior Subordinated Notes are registered.
(5) Any endorsement of a Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in
the rights of Holders, of Outstanding Junior Subordinated Notes represented
thereby shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered pursuant to Section
3.02 with respect thereto. Subject to the provisions of Section 3.02, the
Trustee shall deliver and redeliver any such Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.02 has been,
or simultaneously is, delivered, any instructions by the Company with respect
to such Global Security shall be in writing but need not be accompanied by or
contained in an Officers' Certificate and need not be accompanied by an Opinion
of Counsel.
ARTICLE THREE
THE JUNIOR SUBORDINATED NOTES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Junior Subordinated Notes
which may be authenticated and delivered under this Indenture is unlimited.
The Junior Subordinated Notes may be issued in one or more
series. There may be established, pursuant to one or more indentures
supplemental hereto, prior to the issuance of Junior Subordinated Notes of any
series,
(1) the title of the Junior Subordinated Notes of the
series (which shall distinguish the Junior Subordinated Notes of the series
from Junior Subordinated Notes of all other series);
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(2) any limit upon the aggregate principal amount of the
Junior Subordinated Notes of the series which may be authenticated and
delivered under this Indenture (except for Junior Subordinated Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Junior Subordinated Notes of the series pursuant to
Sections 2.03, 3.03, 3.04, 9.07 or 11.07);
(3) the Person to whom interest on a Junior Subordinated
Note of the series shall be payable if other than the Person in whose name that
Junior Subordinated Note (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the
Junior Subordinated Notes of the series is payable, and the right, if any, to
extend or advance the Stated Maturity of the Junior Subordinated Notes and the
conditions to such extension or advancement;
(5) the rate or rates at which the Junior Subordinated
Notes of the series shall bear interest, if any, or any method by which such
rate or rates shall be determined, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on Junior
Subordinated Notes on any Interest Payment Date and the basis upon which
interest shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(6) the place or places where the principal of (and
premium, if any) and interest, if any, on Junior Subordinated Notes of the
series shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which Junior Subordinated
Notes of the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Junior Subordinated Notes of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof and the period or
periods within which, the price or prices at which, and the terms and
conditions upon which, Junior Subordinated Notes of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the denominations in which Junior Subordinated Notes
of the series shall be issuable;
(10) if the amount of payments of principal of (and
premium, if any) or interest (including Additional Interest) on the Junior
Subordinated Notes of the series may be determined with reference to an index
or formula, the manner in which such amounts shall be determined;
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(11) if other than the principal amount thereof, the
portion of the principal amount of Junior Subordinated Notes of the series
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(12) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company as provided herein pertaining
to the Junior Subordinated Notes of the series, and any change in the rights of
the Trustee or Holders of such series pursuant to Section 9.01 or 9.02;
(13) any additions to the definitions currently set forth
in this Indenture with respect to such series;
(14) whether the Junior Subordinated Notes of the series
shall be issued in whole or in part in the form of a Global Security or
Securities; the terms and conditions, if any, upon which such Global Security
or Securities may be exchanged in whole or in part for certificated Junior
Subordinated Notes of such series and of like tenor of any authorized
denomination and the circumstances under which such exchange may occur, if
other than in the manner provided for in Section 2.03; the Depositary for such
Global Security or Securities; and the form of any legend or legends to be
borne by any such Global Security in addition to or in lieu of the legend
referred to in Section 2.03;
(15) the right, if any, of the Company to extend the
interest payment periods of such series of Junior Subordinated Notes, including
the maximum duration of any such extension or extensions, the Additional
Interest, if any, payable on such Junior Subordinated Notes during any
extension of the interest payment period and any notice (which shall include
notice to the Trustee) that must be given upon the exercise of such right to
extend interest payment periods;
(16) any restriction or condition on the
transferability of such Junior Subordinated Notes; and
(17) any other terms of the series.
All Junior Subordinated Notes of any one series shall be
substantially identical except as to the date or dates from which interest, if
any, shall accrue and denomination and except as may otherwise be provided in
the terms of such Junior Subordinated Notes determined or established as
provided above. All Junior Subordinated Notes of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened for issuances of additional Junior Subordinated Notes of such series.
SECTION 3.02. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The Junior Subordinated Notes shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant
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Secretaries. The signature of any of these officers on the Junior Subordinated
Notes may be manual or facsimile.
Junior Subordinated Notes bearing the manual or facsimile
signatures of individuals who were at the time relevant to the authorization
thereof the proper 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 Junior Subordinated
Notes or did not hold such offices at the date of such Junior Subordinated
Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Junior Subordinated Notes
of any series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Junior Subordinated Notes, and the Trustee, in accordance with the Company
Order, shall authenticate and deliver such Junior Subordinated Notes. If all of
the Junior Subordinated Notes of any series are not to be issued at one time
and if the supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Junior Subordinated Notes and determining the terms of
particular Junior Subordinated Notes of such series, such as interest rate,
maturity date, date of issuance and date from which interest shall accrue. In
authenticating Junior Subordinated Notes hereunder, and accepting the
additional responsibilities under this Indenture in relation to such Junior
Subordinated Notes, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon:
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Junior Subordinated Notes or
the manner of determining such terms have been established in conformity with
the provisions of this Indenture; and
(b) such Junior Subordinated Notes, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general equity principles; and
(2) an Officers' Certificate stating, to the best
knowledge of each signer of such certificate, that no event which is, or after
notice or lapse of time would become, an Event of Default with respect to any
of the Junior Subordinated Notes shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Junior
Subordinated Notes if the issue of such Junior Subordinated Notes pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Junior Subordinated Notes and
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this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee. If all the Junior Subordinated Notes of any series are not to be
issued at one time, it shall not be necessary to deliver an Opinion of Counsel
and Officers' Certificate at the time of issuance of each such Junior
Subordinated Note, but such opinion and certificate shall be delivered at or
before the time of issuance of the first Junior Subordinated Note of such
series to be issued.
Each Junior Subordinated Note shall be dated the date of its
authentication.
No Junior Subordinated Note shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Junior Subordinated Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Junior Subordinated Note shall be
conclusive evidence, and the only evidence, that such Junior Subordinated Note
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
SECTION 3.03. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the office of the
security registrar designated pursuant to this Section 3.03 or Section 10.02
(the "Securities Registrar") a register (referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Junior
Subordinated Notes and of transfers and exchanges of Junior Subordinated Notes.
The Trustee is hereby initially appointed as Security Registrar for the purpose
of registering Junior Subordinated Notes and transfers and exchanges of Junior
Subordinated Notes as herein provided.
Subject to Section 2.03, upon surrender for registration of
transfer of any Junior Subordinated Note of any series at the office or agency
maintained for such purpose for such series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Junior Subordinated Notes of the
same series, Stated Maturity and original issue date, of any authorized
denominations and of like tenor and aggregate principal amount.
Subject to Section 2.03, Junior Subordinated Notes of any
series may be exchanged, at the option of the Holder, for Junior Subordinated
Notes of the same series, Stated Maturity and original issue date, of any
authorized denominations and of like tenor and aggregate principal amount, upon
surrender of the Junior Subordinated Notes to be exchanged at any such office
or agency.
Whenever any Junior Subordinated Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Junior Subordinated Notes that the Holder making the exchange is
entitled to receive.
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All Junior Subordinated Notes issued upon any registration of
transfer or exchange of Junior Subordinated Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Junior Subordinated Notes surrendered
upon such registration of transfer or exchange.
Every Junior Subordinated Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Junior Subordinated 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
Junior Subordinated Notes, other than exchanges pursuant to Section 3.04, 9.07
or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, to register
the transfer of or to exchange Junior Subordinated Notes of any series during a
period of 15 days immediately preceding the date notice is given identifying
the serial numbers of the Junior Subordinated Notes of that series called for
redemption, or (ii) to issue, to register the transfer of or to exchange any
Junior Subordinated Notes so selected for redemption in whole or in part,
except the unredeemed portion of any Junior Subordinated Note being redeemed in
part.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.04. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED NOTES.
If any mutilated Junior Subordinated Note is surrendered to
the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Junior Subordinated Note of the same series,
Stated Maturity and original issue date, and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Junior Subordinated 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 Junior
Subordinated Note has been acquired by a protected purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Junior Subordinated Note, a new
Junior
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Subordinated Note of the same series, Stated Maturity and original issue date,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Note has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Junior Subordinated Note, pay
such Junior Subordinated Note.
Upon the issuance of any new Junior Subordinated Note under
this Section, the Company 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.
Every new Junior Subordinated Note of any series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Junior
Subordinated Note shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Junior
Subordinated Note shall be at any time enforceable by anyone, and any such new
Junior Subordinated Note shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Junior
Subordinated Notes of that series duly issued hereunder.
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 Junior
Subordinated Notes.
SECTION 3.05. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Unless otherwise provided as contemplated by Section 3.01
with respect to any series of Junior Subordinated Notes, interest (including
Additional Interest) on any Junior Subordinated Note that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Junior Subordinated Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest (including Additional Interest) on any Junior
Subordinated Note of any series that is payable, but is not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Junior Subordinated Notes
of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Junior Subordinated Note of such series
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and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Junior
Subordinated Notes of such series at the address of such Holder as it appears
in the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Junior Subordinated Notes of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest (including Additional Interest, if any) on the Junior Subordinated
Notes of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Junior Subordinated Notes
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each
Junior Subordinated Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Junior Subordinated Note
shall carry the rights to interest accrued (including Additional Interest, if
any) and unpaid, and to accrue (including Additional Interest, if any), which
were carried by such other Junior Subordinated Note.
SECTION 3.06. PERSONS DEEMED OWNERS.
Prior to due presentment of a Junior Subordinated 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 Junior Subordinated Note
is registered as the absolute owner of such Junior Subordinated Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 3.05) interest (including Additional Interest, if any) on such
Junior Subordinated Note and for all other purposes whatsoever, whether or not
such Junior Subordinated Note be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
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SECTION 3.07. CANCELLATION.
All Junior Subordinated Notes surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation
any Junior Subordinated Notes previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Junior
Subordinated Notes so delivered shall be canceled by the Trustee. No Junior
Subordinated Notes shall be authenticated in lieu of or in exchange for any
Junior Subordinated Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Junior Subordinated Notes
held by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures unless the Company by Company Order shall otherwise
direct.
SECTION 3.08. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01
for Junior Subordinated Notes of any series, interest on the Junior
Subordinated Notes of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. 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 Junior Subordinated Notes herein 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 Junior Subordinated Notes theretofore
authenticated and delivered (other than (i) Junior Subordinated Notes
that have been destroyed, lost or stolen and that have been replaced
as provided for in Section 3.04 and (ii) Junior Subordinated 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, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or
(B) all such Junior Subordinated Notes not theretofore
delivered to the Trustee for cancellation have become due and payable,
or have been called for redemption, and the Company, in the case of
(B) above, has deposited or caused
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to be deposited with the Trustee as funds in trust for the purpose
described above an amount sufficient to pay and discharge the entire
indebtedness on such Junior Subordinated Notes not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of the Stated Maturity or Redemption
Date, as the case may be, or if later, the date of payment;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
In the event there are Junior Subordinated Notes of two or
more series hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Junior Subordinated Notes of all series as to which it is
Trustee and if the other conditions thereto are met. In the event there are two
or more Trustees hereunder, then the effectiveness of any such instrument shall
be conditioned upon receipt of such instruments from all Trustees hereunder.
If, subsequent to the date a discharge is effected pursuant
to this Section 4.01, Additional Interest (in excess of that established as of
the date such discharge is effected) becomes payable in respect of the series
of Junior Subordinated Notes discharged, in order to preserve the benefits of
the discharge established hereunder, the Company shall irrevocably deposit or
cause to be irrevocably deposited in accordance with the provisions of this
Section 4.01, within 10 Business Days prior to the date the first payment in
respect of any portion of such excess Additional Interest becomes due, such
additional funds as are necessary to satisfy the provisions of this Section
4.01 as if a discharge were being effected as of the date of such subsequent
deposit. Failure to comply with the requirements of this paragraph shall result
in the termination of the benefits of the discharge established by this Section
4.01.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Junior Subordinated Notes, and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company or an Affiliate acting as
its own Paying Agent) as the Trustee may determine, to the Persons
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entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Junior Subordinated Notes of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be 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 or occasioned by the operation of Article
Thirteen):
(1) default in the payment of any interest upon any
Junior Subordinated Note of that series when it becomes due and payable on an
Interest Payment Date other than at Maturity, including Additional Interest (as
defined in clause (ii) of the definition thereof) in respect thereof, and
continuance of such default for a period of 10 days; provided, however, that
(i) a valid extension of the interest payment period by the Company pursuant to
the terms of a supplemental indenture authorizing the Junior Subordinated Notes
of that series shall not constitute a default in the payment of interest for
this purpose and (ii) no such default shall be deemed to exist if, on or prior
to the date on which such interest became due, the Company shall have made a
payment sufficient to pay such interest pursuant to the Guarantee related to
the Trust Securities of the Securities Trust owning such series of Junior
Subordinated Notes, and shall have delivered a notice to the Trustee to that
effect; or
(2) default in payment of Additional Interest (as
defined in clause (i) of the definition thereof) and the continuance of such
default for a period of 10 days; or
(3) default in the payment of the principal of, (or
premium, if any) or interest (including Additional Interest as defined in
clause (ii) of the definition thereof) on any Junior Subordinated Note of that
series at its Maturity; provided, however, that no such default in the payment
of principal (or premium, if any) or interest (including Additional Interest as
defined in clause (ii) of the definition thereof) shall be deemed to exist if,
on or prior to the date such principal (and premium, if any) or interest
(including Additional Interest as defined in clause (ii) of the definition
thereof) became due, the Company shall have made a payment sufficient to pay
such principal (and premium, if any) or interest (including Additional Interest
as defined in clause (ii) of the definition thereof) pursuant to the Guarantee
related to the Trust Securities of the Securities Trust owning such series of
Junior Subordinated Notes, and shall have delivered a notice to the Trustee to
that effect; or
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(4) default in the deposit of any sinking fund payment,
when and as due by the terms of a Junior Subordinated Note of that series and
continuance of such default for a period of three Business Days; or
(5) default in the performance or breach of any covenant
or warranty of the Company in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of one or more series of Junior Subordinated Notes other
than that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Junior Subordinated Notes of
that series, 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
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
for the Company or for 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 for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days; or
(7) the commencement by the Company of a case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in a case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company 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 the Company
in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Junior Subordinated Notes of that series in the supplemental indenture
authorizing such series.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
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If an Event of Default with respect to Junior Subordinated
Notes of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Junior Subordinated Notes of that series may declare
the principal amount (or such portion of the principal amount as may be
specified in the terms of that series) of all of the Junior Subordinated Notes
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with
respect to Junior Subordinated Notes of any series 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 provided, the Holders of not less than a
majority in principal amount of the Outstanding Junior Subordinated Notes of
that series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest (including any Additional
Interest) on all Junior Subordinated Notes of that series,
(B) the principal of (and premium, if any, on) any
Junior Subordinated Notes of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Junior
Subordinated Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest (including any Additional
Interest) at the rate or rates prescribed therefor in such Junior
Subordinated Notes, and
(D) 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 any other amounts due to
the Trustee under Section 6.07; and
(2) all Events of Default with respect to Junior
Subordinated Notes of that series, other than the non-payment of the principal
of Junior Subordinated Notes of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
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The Company covenants that if an Event of Default occurs
under Section 5.01(1), (2), (3) or (4) with respect to any Junior Subordinated
Notes the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Junior Subordinated Notes, the whole amount then due and
payable on such Junior Subordinated Notes for principal (and premium, if any)
and interest (including Additional Interest, if any) and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest (including
Additional Interest, if any), at the rate or rates prescribed therefor in such
Junior Subordinated Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 6.07.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Junior
Subordinated Notes and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Junior Subordinated Notes, wherever situated.
If an Event of Default with respect to Junior Subordinated
Notes of any series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Junior Subordinated Notes of such series by such appropriate judicial
proceedings as the Trustee 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 herein, or to
enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Junior Subordinated Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Junior Subordinated Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Junior Subordinated Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and
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counsel, and any other amounts due to the Trustee under Section 6.07) and of
the Holders of Junior Subordinated Notes allowed in such judicial proceeding,
and
(2) 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 of Junior Subordinated Notes to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Junior Subordinated Notes, 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 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Junior Subordinated Note any plan of reorganization, arrangement,
adjustment or composition affecting the Junior Subordinated Notes or the rights
of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder of a Junior Subordinated Note in any such proceeding.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF JUNIOR SUBORDINATED NOTES.
All rights of action and claims under this Indenture or the
Junior Subordinated Notes may be prosecuted and enforced by the Trustee without
the possession of any of the Junior Subordinated 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 counsel, be for the ratable benefit of the Holders of the Junior
Subordinated Notes in respect of which such judgment has been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Junior Subordinated
Notes, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.07; and
Second: Subject to Article Thirteen, to the payment of the
amounts then due and unpaid for principal of (and premium, if any) and interest
(including Additional Interest, if any) on the Junior Subordinated Notes in
respect of which or for the benefit of
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which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Junior Subordinated
Notes for principal (and premium, if any) and interest (including Additional
Interest, if any), respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Junior Subordinated Note of any series 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 has previously given written notice to
the Trustee of a continuing Event of Default with respect to the Junior
Subordinated Notes of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Junior Subordinated Notes of that series 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 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 indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Junior Subordinated Notes of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever 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 to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture but
subject to Article Thirteen, (1) the Holder of any Junior Subordinated Notes
shall have the right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to Section 3.05)
interest (including any Additional Interest) on such Junior Subordinated Note
on the due dates expressed in such Junior Subordinated Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
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enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder; and (2) so long as the Junior Subordinated Notes of
any series are held by a Securities Trust, a registered holder of preferred
securities issued by such Securities Trust may institute a legal proceeding
directly against the Company, without first instituting a legal proceeding
directly against or requesting or directing that action be taken by the
Property Trustee of such Securities Trust or any other Person, for enforcement
of payment to such registered holder of principal of or interest on Junior
Subordinated Notes of such series having a principal amount equal to the
aggregate stated liquidation amount of such preferred securities of such
registered holder on or after the due dates therefor specified or provided for
in the Junior Subordinated Notes of such series.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Junior Subordinated Note
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 or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders of Junior Subordinated Notes shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Junior Subordinated Notes in
the last paragraph of Section 3.04, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Junior Subordinated Notes is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Junior Subordinated Note to exercise any right or remedy upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders of Junior
Subordinated Notes may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Junior Subordinated
Notes.
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SECTION 5.12. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED
NOTES.
The Holders of not less than a majority in principal amount
of the Outstanding Junior Subordinated Notes of any series 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 Junior Subordinated Notes of such series,
provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve the Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.01, the
Trustee shall have the right to decline to follow such direction if a
Responsible Officer of the Trustee shall, in good faith, determine that such
proceeding so directed would be unjustly prejudicial to the Holders not joining
in any such direction or would involve the Trustee in personal liability.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
Subject to Section 5.02, the Holders of not less than a
majority in principal amount of the Outstanding Junior Subordinated Notes of
any series may, on behalf of the Holders of all the Junior Subordinated Notes
of such series, waive any past default hereunder with respect to such series
and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest (including Additional Interest) on any Junior Subordinated
Note of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Junior Subordinated Note of such series affected.
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 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Junior Subordinated Note by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, 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
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omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Junior Subordinated Notes of any series, or
to any suit instituted by any Holder of any Junior Subordinated Note for the
enforcement of the payment of the principal of (or premium, if any) or interest
(including Additional Interest) on any Junior Subordinated Note on or after the
Stated Maturity or Maturities expressed in such Junior Subordinated Note (or,
in the case of redemption, on or after the Redemption Date).
SECTION 5.15. WAIVER OF 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 stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this 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 herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Junior Subordinated Notes of any series,
(1) the Trustee undertakes to perform, with
respect to Junior Subordinated Notes of such series, 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;
and
(2) in the absence of bad faith on its part,
the Trustee may, with respect to Junior Subordinated Notes of such series,
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 conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
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(b) In case an Event of Default with respect to Junior
Subordinated Notes of any series has occurred and is continuing, the Trustee
shall exercise, with respect to Junior Subordinated Notes of such series, such
of 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 man would exercise or
use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Junior Subordinated Notes of any series relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Junior Subordinated Notes of such series;
and
(4) no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial 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.
(d) 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.
SECTION 6.02. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder
with respect to the Junior Subordinated Notes of any series, the Trustee shall
transmit by mail to all Holders of Junior Subordinated Notes of such series
entitled to receive reports pursuant to Section 313(c) of the Trust Indenture
Act, notice of all defaults hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including Additional Interest) on any Junior Subordinated Note of such series
or in the payment of any sinking fund installment with respect to Junior
Subordinated Notes of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or
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Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Junior
Subordinated Notes of such series; and provided, further, that in the case of
any default of the character specified in Section 5.01(5) with respect to
Junior Subordinated Notes of such series, no such notice to Holders shall be
given until at least 45 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to Junior
Subordinated Notes of such series.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.01:
(a) 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;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and a resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) 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 herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) 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;
(e) 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 of Junior Subordinated Notes of any series
pursuant to this Indenture, unless such Holders 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;
(f) 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;
(g) 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
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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;
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Junior Subordinated Notes of any
series for which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge of the Event of Default or
(2) written notice of such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such Junior Subordinated Notes or
by any Holder of such Junior Subordinated Notes; and
(i) the Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
JUNIOR SUBORDINATED NOTES.
The recitals contained herein and in the Junior Subordinated
Notes (except the Trustee's certificates of authentication) shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Junior Subordinated Notes. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Junior Subordinated
Notes or the proceeds thereof.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Trust Securities and shall be entitled to rely on the delivery
to it of a written notice by a Person representing himself to be a holder of a
Trust Security to establish that such Person is such a holder. The Trustee may
conclusively rely on an Officers' Certificate as evidence that the holders of
the necessary percentage of liquidation preference of Trust Securities have
taken any action contemplated hereunder and shall have no duty to investigate
the truth or accuracy of any statement contained therein.
SECTION 6.05. MAY HOLD JUNIOR SUBORDINATED NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Junior Subordinated Notes
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. 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. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
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SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, 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, willful
misconduct or bad faith; 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 reasonable 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.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the Junior
Subordinated Notes upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of, premium,
if any, or interest, if any, on particular Junior Subordinated Notes.
This indemnification shall survive the resignation or removal
of the Trustee and the termination of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(6) or (7) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor
statute.
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SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest,
within the meaning of the Trust Indenture Act, 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 Trust Indenture Act and this Indenture.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a 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 Trust Indenture Act to act as Trustee under an
Indenture qualified under the Trust Indenture Act. 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, 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, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to
the Junior Subordinated Notes of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 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 with respect to the Junior Subordinated Notes of such series.
(c) The Trustee may be removed at any time with respect
to the Junior Subordinated Notes of any series by Act of the Holders of a
majority in principal amount of the Outstanding Junior Subordinated Notes of
such series delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with
Section 6.08 after written request therefor by the Company or by any Holder of
a Junior Subordinated Note who has been a Holder of a Junior Subordinated Note
for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 6.09 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) 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 Board Resolution, may remove the
Trustee with respect to all Junior Subordinated Notes, or (ii) subject to
Section 5.14, any Holder of a Junior Subordinated Note who has been a bona fide
Holder of a Junior Subordinated Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Junior
Subordinated Notes and the appointment of a successor Trustee or Trustees.
(e) 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, with respect to the Junior Subordinated Notes of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Junior Subordinated Notes of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Junior Subordinated Notes of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Junior Subordinated Notes of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Junior Subordinated Notes of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Junior Subordinated Notes of such series 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 6.11, become the successor Trustee with
respect to the Junior Subordinated Notes of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Junior Subordinated Notes of any series shall have
been so appointed by the Company or the Holders of Junior Subordinated Notes
and accepted appointment in the manner required by Section 6.11, any Holder of
a Junior Subordinated Note who has been a bona fide Holder of a Junior
Subordinated Note of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Junior Subordinated Notes of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Junior Subordinated Notes
of any series and each
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appointment of a successor Trustee with respect to the Junior Subordinated
Notes of any series by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of such series of Junior Subordinated
Notes as their names and addresses appear in the Security Register.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Junior Subordinated Notes, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company 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 the 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.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Junior Subordinated Notes of one or more (but not
all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Junior Subordinated Notes of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Junior Subordinated Notes of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Junior Subordinated Notes,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Junior Subordinated Notes of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each 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 with respect
to the Junior Subordinated Notes of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and
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money held by such retiring Trustee hereunder with respect to the Junior
Subordinated Notes of that or those series to which the appointment of such
successor Trustee relates.
(c) 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 referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) 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.
(e) Notwithstanding the replacement of the Trustee
pursuant to Section 6.10, the Company's obligations under Section 6.07 shall
continue for the benefit of the retiring Trustee with respect to expenses,
losses and liabilities incurred by it prior to such replacement.
SECTION 6.12. 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. In case any Junior Subordinated 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 Junior Subordinated Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Junior Subordinated Notes.
SECTION 6.13. 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 Junior Subordinated Notes), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor). For
purposes of Section 311(b)(4) and (6) of the Trust Indenture Act:
(a) "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
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(b) "self-liquidating paper" means any draft, bill 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, bill of exchange, acceptance or obligation.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Junior Subordinated Notes remain
Outstanding the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Junior Subordinated Notes that shall be
authorized to act on behalf of the Trustee to authenticate Junior Subordinated
Notes of such series issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.04, and Junior Subordinated 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 delivery of Junior Subordinated 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.
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, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
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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 in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Junior
Subordinated Notes, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. 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.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
The provisions of Sections 3.06, 6.04 and 6.05 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Junior Subordinated Notes of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Junior Subordinated Notes of the series
designated therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By
As Authenticating Agent
By
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee
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(a) semi-annually, not later than June 1 and December 1,
in each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company, or
any of its Paying Agents other than the Trustee, as to the names and addresses
of the Holders of Junior Subordinated Notes as of the preceding May 15 or
November 15, as the case may be, and
(b) at such other times as the Trustee may 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 the most recent Regular Record Date;
provided, however, that no such list need be provided so long as the Trustee is
the Security Registrar.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS.
(a) The Trustee shall comply with the obligations
imposed on it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Junior Subordinated Notes, 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 the disclosure of any such information as to the
names and addresses of the Holders of Junior Subordinated Notes in accordance
with Section 312(b) of the Trust Indenture Act, 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 Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 after the first issuance of Junior Subordinated Notes
pursuant to this Indenture, if required by Section 313(a) of the Trust
Indenture Act, 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.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections 313(c) and
(d) of the Trust Indenture Act.
SECTION 7.04. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
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(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, 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 Commission may from time to time by
rules and regulations prescribe) that the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended; 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 Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, 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;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, 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;
(3) transmit, within 30 days after the filing thereof
with the Trustee, to the Holders of Junior Subordinated Notes, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section 7.04 as may be
required by rules and regulations prescribed from time to time by the
Commission; and
(4) notify the Trustee when and as the Junior
Subordinated Notes of any series become admitted to trading on any national
securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. 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, unless
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof
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or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest (including Additional Interest) on all the
Junior Subordinated Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such
transactions, 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; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 8.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Junior Subordinated
Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders of Junior Subordinated
Notes, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the covenants of the
Company herein and in the Junior Subordinated Notes; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Junior Subordinated Notes (and
if such covenants are to be for the benefit of less than all series of Junior
Subordinated Notes, stating that such
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covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture, to change or eliminate any restrictions on the payment of principal
(or premium, if any) on Junior Subordinated Notes or to permit the issuance of
Junior Subordinated Notes in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Junior Subordinated
Notes of any series in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture with respect to any series of Junior Subordinated Notes theretofore
unissued; or
(6) to secure the Junior Subordinated Notes; or
(7) to establish the form or terms of Junior
Subordinated Notes of any series as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Junior
Subordinated Notes of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make provisions with respect to matters or questions arising under this
indenture, provided such action shall not adversely affect the interests of the
Holders of Junior Subordinated Notes of any series or holders of outstanding
Trust Securities in any material respect; or
(10) subject to Section 9.03(a), to make any change in
Article Thirteen that would limit or terminate the benefits available to any
holder of Senior Indebtedness under such Article; or
(11) 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 Trust Indenture Act or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions
as may be expressly required by the Trust Indenture Act.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Junior Subordinated Notes of each series
affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may
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enter into an indenture or indentures supplemental hereto 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 Junior Subordinated Notes of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Junior Subordinated Note affected
thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Junior Subordinated Note,
or reduce the principal amount thereof or the rate of interest (including
Additional Interest) thereon or any premium payable upon the redemption
thereof, or change the method of calculating the rate of interest thereon, or
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), or
(2) reduce the percentage in principal amount of the
Outstanding Junior Subordinated Notes of any series, 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, or
(3) modify any of the provisions of this Section 9.02,
Section 5.13 or Section 10.08, 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 Outstanding Junior
Subordinated Note affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder of a Junior Subordinated
Note with respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.08, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11(b) and 9.01(8), or
(4) modify the provisions of this Indenture with respect
to the subordination of the Junior Subordinated Notes in a manner adverse to
such Holder.
SECTION 9.03. GENERAL PROVISIONS REGARDING SUPPLEMENTAL
INDENTURE.
(a) A supplemental indenture entered into pursuant to
Section 9.01 or Section 9.02 may not make any change that adversely affects the
rights under Article Thirteen of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.
(b) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Junior
Subordinated Notes, or which modifies the rights of the Holders of Junior
Subordinated Notes of such series with respect to such
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covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Junior Subordinated Notes of any other series.
(c) It shall not be necessary for any Act of Holders of
Junior Subordinated Notes under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such Act or
action shall approve the substance thereof.
SECTION 9.04. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, in addition to the documents required by Section 1.02, 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 which affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or otherwise.
SECTION 9.05. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, 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 Junior Subordinated Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 9.07. REFERENCE IN JUNIOR SUBORDINATED NOTES TO
SUPPLEMENTAL INDENTURES.
Junior Subordinated Notes of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article 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 Junior Subordinated Notes of
any series so modified as to conform, in the reasonable 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 Junior Subordinated Notes of such series.
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ARTICLE TEN
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Junior Subordinated Notes that it will duly and punctually pay the
principal of (and premium, if any) and interest, including Additional Interest
(subject to the right of the Company to extend an interest payment period
pursuant to the terms of a supplemental indenture authorizing the Junior
Subordinated Notes of that series), on the Junior Subordinated Notes of that
series in accordance with the terms of the Junior Subordinated Notes and this
Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company or its Affiliate will maintain an office or
agency where Junior Subordinated Notes of each series may be presented or
surrendered for payment, where Junior Subordinated Notes of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Junior Subordinated Notes of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and 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 in respect of any series of Junior Subordinated
Notes or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Junior Subordinated Notes of that series may be
made and 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 such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Junior Subordinated Notes of one or more
series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.03. MONEY FOR JUNIOR SUBORDINATED NOTES
PAYMENTS TO BE HELD IN TRUST.
If the Company or one of its Affiliates shall at any time act
as its own Paying Agent with respect to any series of Junior Subordinated
Notes, it will, on or before each due date of the principal of (and premium, if
any) or interest (including Additional Interest, if any) on any of the Junior
Subordinated Notes of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest (including Additional Interest, if any) so
becoming due until such sums shall be paid to such Persons or otherwise
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disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Junior Subordinated Notes, it will, prior to each due date of the
principal of (and premium, if any) or interest (including Additional Interest,
if any) on any Junior Subordinated Notes of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest, if any) so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest (including Additional Interest, if any), and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Junior Subordinated Notes 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest (including Additional Interest,
if any) on Junior Subordinated Notes of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Junior Subordinated Notes of that
series) in the making of any payment of principal of (and premium, if any) or
interest (including Additional Interest, if any) on the Junior Subordinated
Notes of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent. 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.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest (including Additional Interest, if any) on any
Junior Subordinated Note of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest (including Additional
Interest, if any) has become due and payable 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 Junior Subordinated Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
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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 of general circulation in New York City
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.
SECTION 10.04. ADDITIONAL INTEREST.
If the Junior Subordinated Notes of a series provide for the
payment of Additional Interest (for purposes of this Section 10.04, as defined
in clause (i) of the definition thereof) to the Holders of such Junior
Subordinated Notes, then the Company shall pay to each Holder of such
Securities the Additional Interest as provided therein.
Except as otherwise provided in or pursuant to this
Indenture, if the Junior Subordinated Notes of a series provide for the payment
of Additional Interest, at least 10 days prior to the first Interest Payment
Date with respect to that series of Junior Subordinated Notes upon which such
Additional Interest shall be payable (or, if the Junior Subordinated Notes of
that series shall not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
Paying Agents, if other than the Trustee or the Company, with an Officers'
Certificate stating the amount of the Additional Interest payable per minimum
authorized denomination of such Junior Subordinated Notes (and, if such
Additional Interest is payable only with respect to particular Junior
Subordinated Notes, then the names of the Holders of such Junior Subordinated
Notes).
SECTION 10.05. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of
the Company; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors 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.
SECTION 10.06. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER
PAYMENTS.
The Company covenants, for the benefit of the Holders of each
series of Junior Subordinated Notes, that, subject to the next succeeding
sentence, (a) the Company shall not declare or pay any dividend or make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its
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capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees other than the Guarantee with respect to the
series of Trust Securities, if any, related to such series of Junior
Subordinated Notes) issued by the Company which rank pari passu with or junior
to the Junior Subordinated Notes, (x) if at such time the Company shall have
given notice of its election to extend an interest payment period for such
series of Junior Subordinated Notes and such extension shall be continuing, or
(y) if at such time the Company shall be in default with respect to its payment
or other obligations under the Guarantee with respect to the series of Trust
Securities, if any, related to such series of Junior Subordinated Notes. The
preceding sentence, however, shall not restrict (i) any of the actions
described in the preceding sentence resulting from any reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's
capital stock, (ii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, or (iii)
repurchases, redemptions or other acquisitions of the Company's capital stock
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or
consultants.
SECTION 10.07. STATEMENT AS TO COMPLIANCE.
(a) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement, which need not
comply with Section 1.02, signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 10.07, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) The Company shall deliver to the Trustee, no later
than the Business Day on which the event occurs, written notice of the
liquidation, dissolution or winding-up of a Securities Trust if such
liquidation, dissolution or winding-up would occur earlier than the Stated
Maturity of the Junior Subordinated Notes owned by such Securities Trust.
(c) The Company shall deliver to the Trustee, within
five days after the occurrence thereof, written notice of any Event of Default
and any event which after notice or lapse of time or both would become an Event
of Default pursuant to Section 5.01.
SECTION 10.08. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 10.05 and 10.06
with respect to the Junior Subordinated Notes of any series if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Junior Subordinated
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Notes of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision 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 term, provision or condition shall
remain in full force and effect.
SECTION 10.09. COVENANTS REGARDING TRUST.
For so long as the Trust Securities remain outstanding, the
Company covenants (i) to directly or indirectly maintain 100% ownership of the
Common Securities (as defined in the Trust Agreement relating to such
securities) of the Trust; provided, however, that any permitted successor of
the Company hereunder may succeed to the Company's ownership of such Common
Securities, and (ii) to use its reasonable efforts to cause the Trust (a) to
remain a statutory business trust, except in connection with the distribution
of Junior Subordinated Notes to the holders of Trust Securities in liquidation
of the Trust, the redemption of all of the Trust Securities of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted under the
Trust Agreement, and (b) to otherwise continue to be classified as a grantor
trust for United States federal income tax purposes.
ARTICLE ELEVEN
REDEMPTION OF JUNIOR SUBORDINATED NOTES
SECTION 11.01. APPLICABILITY OF ARTICLE.
Junior Subordinated Notes of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 3.01 for Junior
Subordinated Notes of any series) in accordance with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Junior Subordinated
Notes shall be evidenced by a Board Resolution. In case of any redemption at
the election of the Company of all of the Junior Subordinated Notes of any
series, 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
and the related Property Trustee), notify the Trustee and the related Property
Trustee in writing of such Redemption Date. In case of any redemption at the
election of the Company of less than all the Junior Subordinated Notes of any
series, 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
and the related Property Trustee), notify the Trustee and the related Property
Trustee in writing of such Redemption Date and of the principal amount of
Junior Subordinated Notes of such series to be redeemed. In the case of any
redemption of Junior Subordinated Notes (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Junior
Subordinated Notes or elsewhere in this Indenture, or (ii) pursuant to an
election
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of the Company which is subject to a condition specified in the terms of such
Junior Subordinated Notes, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 11.03. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED
NOTES TO BE REDEEMED.
If the Junior Subordinated Notes are registered in the name
of only one Holder, any partial redemptions shall be pro rata. If the Junior
Subordinated Notes are held in definitive form by more than one Holder and if
less than all the Junior Subordinated Notes of any series are to be redeemed,
the particular Junior Subordinated Notes to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Junior Subordinated Notes of such series not previously called for
redemption, by lot or other such method as the Trustee shall deem fair and
appropriate.
The Trustee shall promptly notify the Company in writing of
the Junior Subordinated Notes selected for redemption and, in the case of any
Junior Subordinated Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Junior
Subordinated Notes shall relate, in the case of any Junior Subordinated Notes
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Junior Subordinated Notes which has been or is to be redeemed.
SECTION 11.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 1.06 to the Holders of Junior Subordinated Notes to be redeemed not
less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Junior
Subordinated Notes of any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the particular Junior
Subordinated Notes to be redeemed,
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such Junior Subordinated Note to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Junior
Subordinated Notes are to be surrendered for payment of the Redemption Price,
and
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(6) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Junior Subordinated Notes to be
redeemed at the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
Except as otherwise provided in a supplemental indenture
pursuant to Section 3.01, prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company or its
Affiliate is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of and accrued interest, if any, on all the Junior Subordinated Notes
which are to be redeemed on that date.
SECTION 11.06. JUNIOR SUBORDINATED NOTES PAYABLE ON
REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Junior Subordinated Notes so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified together with
any accrued interest (including any Additional Interest) thereon, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Junior Subordinated Notes shall
cease to bear interest. Upon surrender of any such Junior Subordinated Note for
redemption in accordance with such notice, such Junior Subordinated Note shall
be paid by the Company at the Redemption Price, together with accrued interest,
if any, and any Additional Interest to the Redemption Date; provided, however,
that, except as otherwise provided in a supplemental indenture pursuant to
Section 3.01, installments of interest on Junior Subordinated Notes whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Junior Subordinated Notes, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.05.
If any Junior Subordinated Note called for redemption shall
not be so paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the Redemption Date at
the rate prescribed therefor in the Junior Subordinated Note.
SECTION 11.07. JUNIOR SUBORDINATED NOTES REDEEMED IN PART.
Any Junior Subordinated Note that is to be redeemed only in
part shall be surrendered at an office or agency of the Company therefor (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 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 Junior Subordinated Note without
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service charge, a new Junior Subordinated Note of the same series, Stated
Maturity and original issue date of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Junior Subordinated Note so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Junior Subordinated Notes of a series except
as otherwise specified as contemplated by Section 3.01 for Junior Subordinated
Notes of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Junior Subordinated Notes of any series is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Junior Subordinated Notes of any
series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of Junior Subordinated Notes of any series, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section
12.02. Each sinking fund payment shall be applied to the redemption of Junior
Subordinated Notes of any series as provided for by the terms of Junior
Subordinated Notes of such series.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH
JUNIOR SUBORDINATED NOTES.
The Company (1) may deliver Outstanding Junior Subordinated
Notes of a series (other than any previously called for redemption), and (2)
may apply as a credit Junior Subordinated Notes of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Junior Subordinated Notes or through the application of permitted optional
sinking fund payments pursuant to the terms of such Junior Subordinated Notes,
in each case in satisfaction of all or any part of any sinking fund payment
with respect to the Junior Subordinated Notes of such series required to be
made pursuant to the terms of such Junior Subordinated Notes as provided for by
the terms of such series; provided that such Junior Subordinated Notes have not
been previously so credited. Such Junior Subordinated Notes shall be received
and credited for such purpose by the Trustee at the Redemption Price specified
in such Junior Subordinated Notes for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR
SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any series of Junior Subordinated Notes, the Company will deliver to the
Trustee an Officers'
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Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Junior Subordinated Notes
of that series pursuant to Section 12.02 and stating the basis for such credit
and that such Junior Subordinated Notes have not previously been so credited
and will also deliver to the Trustee any Junior Subordinated Notes to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Junior Subordinated Notes to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.04. Such notice having been
duly given, the redemption of such Junior Subordinated Notes shall be made upon
the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.01. JUNIOR SUBORDINATED NOTES SUBORDINATE TO
SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Junior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
(subject to Article Four), the payment of the principal of, premium, if any,
and interest (including Additional Interest) on each and all of the Junior
Subordinated Notes are hereby expressly made subordinate and subject in right
of payment to the prior payment in full in cash of all Senior Indebtedness.
SECTION 13.02. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshalling of assets or liabilities
or any bankruptcy, insolvency or similar proceedings of the Company (each such
event, if any, referred to as a "Proceeding"), the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due on
or to become due on or in respect of all Senior Indebtedness (including any
interest accruing thereon after the commencement of any such Proceeding,
whether or not allowed as a claim against the Company in such Proceeding),
before the Holders of the Junior Subordinated Notes are entitled to receive any
payment or distribution (excluding any payment described in Section 13.09) on
account of the principal of, premium, if any, or interest (including Additional
Interest, if any) on the Junior Subordinated Notes or on account of any
purchase, redemption or other acquisition of Junior Subordinated Notes by the
Company (all such payments, distributions, purchases, redemptions and
acquisitions, whether or not in connection with a Proceeding, herein referred
to, individually and collectively, as a "Payment").
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In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing shall be received by
the Trustee or the Holders of the Junior Subordinated Notes before all Senior
Indebtedness is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness.
For purposes of this Article, "assets of the Company" shall
not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other Person provided for by a
plan of reorganization or readjustment, the payment of which is subordinated at
least to the extent provided in this Article with respect to the Junior
Subordinated Notes to the payment of all Senior Indebtedness that may at the
time be outstanding; provided, however, that (i) the Senior Indebtedness is
assumed by the new Person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article Eight hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section
13.02 if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight
hereof. Nothing in Section 13.03 or in this Section 13.02 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.07.
SECTION 13.03. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN
DEFAULT.
No payment of any principal, including redemption payments,
if any, premium, if any, or interest on (including Additional Interest) the
Junior Subordinated Notes shall be made if
(i) any Senior Indebtedness is not paid when
due whether at the stated maturity of any such payment or by call for
redemption and any applicable grace period with respect to such default has
ended, with such default remaining uncured and such default has not been waived
or otherwise ceased to exist;
(ii) the maturity of any Senior Indebtedness has
been accelerated because of a default; or
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(iii) notice has been given of the exercise of an
option to require repayment, mandatory payment or prepayment or otherwise.
In the event that, notwithstanding the foregoing, the Company
shall make any Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, then in such event such Payment shall be held in
trust and paid over and delivered forthwith to the holders of the Senior
Indebtedness.
The provisions of this Section shall not apply to any Payment
with respect to which Section 13.02 hereof would be applicable.
SECTION 13.04. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Junior Subordinated Notes shall prevent the Company,
at any time except during the pendency of any Proceeding referred to in Section
13.02 hereof or under the conditions described in Section 13.03 hereof, from
making Payments. Nothing in this Article shall have any effect on the right of
the Holders or the Trustee to accelerate the maturity of the Junior
Subordinated Notes upon the occurrence of an Event of Default, but, in that
event, no payment may be made in violation of the provisions of this Article
with respect to the Junior Subordinated Notes. If payment of the Junior
Subordinated Notes is accelerated because of an Event of Default, the Company
shall promptly notify the holders of the Senior Indebtedness (or their
representatives) of such acceleration.
SECTION 13.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
The rights of the Holders of the Junior Subordinated Notes
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of, premium, if any, and
interest (including Additional Interest) on the Junior Subordinated Notes shall
be paid in full. For purposes of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of any cash, property or securities
to which the Holders of the Junior Subordinated Notes or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Indebtedness by Holders
of the Junior Subordinated Notes or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Indebtedness and the Holders of the
Junior Subordinated Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 13.06. PROVISIONS SOLELY TO DEFINE RELATIVE
RIGHTS.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Junior Subordinated Notes
is intended to or shall (a) impair, as among
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the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Junior Subordinated Notes, the obligation of the Company, which
is absolute and unconditional (and which, subject to the rights under this
Article of the holders of Senior Indebtedness, is intended to rank equally with
all other general obligations of the Company), to pay to the Holders of the
Junior Subordinated Notes the principal of, premium, if any, and interest
(including Additional Interest) on the Junior Subordinated Notes as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Junior
Subordinated Notes and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Junior
Subordinated Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder or, under the conditions specified in Section 13.03, to prevent any
payment prohibited by such Section or enforce their rights pursuant to the
penultimate paragraph in Section 13.03.
SECTION 13.07. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Junior Subordinated Note by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation
or reorganization of the Company, whether in bankruptcy, insolvency,
receivership proceedings, or otherwise, the timely filing of a claim for the
unpaid balance of the indebtedness of the Company owing to such Holder in the
form required in such proceedings and the causing of such claim to be approved.
SECTION 13.08. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination provisions provided herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or any failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Junior Subordinated Notes, without incurring responsibility to the Holders of
the Junior Subordinated Notes and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
Holders of the Junior Subordinated Notes to the holders of Senior Indebtedness,
do any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or
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any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) permit the Company to borrow, repay and then
reborrow any or all of the Senior Indebtedness; (iii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iv) release any Person liable in any manner for the
collection of Senior Indebtedness; (v) exercise or refrain from exercising any
rights against the Company and any other Person; or (vi) apply any sums
received by them to Senior Indebtedness.
SECTION 13.09. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from money held in trust by the Trustee under Article Four for the
payment of the principal of, premium, if any, and interest (including
Additional Interest) on any series of Junior Subordinated Notes shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article and no Holder of such Junior
Subordinated Notes nor the Trustee shall be obligated to pay over such amount
to the Company, any holder of Senior Indebtedness (or a designated
representative of such holder) or any other creditor of the Company.
SECTION 13.10. NOTICE TO THE TRUSTEE.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies to or by the Trustee in respect of the Junior
Subordinated Notes pursuant to the provisions of this Article. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Junior Subordinated Notes pursuant to the provisions of this
Article unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 13.10
at least two Business Days prior to the date upon which, by the terms hereof,
any money may become payable for any purpose (including, without limitation,
the payment of the principal of (or premium, if any) or interest on any Junior
Subordinated Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by
it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 6.01, shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further
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<PAGE> 70
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE
OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
6.01 hereof, and the Holders of the Junior Subordinated Notes shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Junior Subordinated Notes, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of the Senior Indebtedness, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article, provided that the foregoing
shall apply only if such court has been apprised of the provisions of this
Article.
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the provisions of Section 6.01, the Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness
and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Junior Subordinated Notes or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.07 hereof.
SECTION 13.14. ARTICLE APPLICABLE TO PAYING AGENTS.
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In case at any time any Paying Agent other than the Trustee
(or the Company or an Affiliate of the Company) shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 13.15. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS
ON SUBORDINATION PROVISIONS.
Each Holder by accepting a Junior Subordinated Note
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Junior Subordinated Notes, to acquire and
continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or to
continue to hold, such Senior Indebtedness.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Junior Subordinated
Notes or this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Junior Subordinated Note,
each Holder shall waive and release all such liability. Such waiver and release
shall be part of the consideration for the issue of the Junior Subordinated
Notes.
SECTION 14.02. SET-OFF.
Notwithstanding anything to the contrary in this Indenture or
in any Junior Subordinated Note of any series, prior to the dissolution of any
Securities Trust that has issued Trust Securities related to a series of Junior
Subordinated Notes, the Company shall have the right to set-off and apply
against any payment it is otherwise required to make hereunder or thereunder
with respect to the principal of or premium, if any, or interest (including any
Additional Interest) on the Junior Subordinated Notes of such series if and to
the extent the Company has theretofore made, or is concurrently on the date of
such payment making, a payment with respect to the Trust Securities of the
series related to such series of Junior Subordinated Notes under the applicable
Guarantee. Contemporaneously with, or as promptly as practicable after, any
such payment under such Guarantee, the Company shall deliver to the Trustee an
Officers' Certificate (upon which the Trustee shall be entitled to rely
conclusively without any requirement to
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investigate the facts contained therein) to the effect that such payment has
been made and that, as a result of such payment, the corresponding payment
under the related series of Junior Subordinated Notes has been set-off in
accordance with this Section 14.02.
SECTION 14.03. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any
of its rights or obligations under this Indenture to a direct or indirect
wholly-owned subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain primarily liable for the performance of
all such obligations. This Indenture may also be assigned by the Company in
connection with a transaction described in Article Eight. This Indenture shall
be binding upon and inure to the benefit of the Company, the Trustee, the
Holders, any Security Registrar, Paying Agent, and Authenticating Agent and, to
the extent specifically set forth herein, the holders of Senior Indebtedness
and their respective successors and assigns. The provisions of clause (2) of
Section 5.08 and Section 10.06 are for the benefit of the holders of the series
of Trust Securities referred to therein and, prior to the dissolution of the
related Securities Trust, may be enforced by such holders. A holder of a Trust
Security shall not have the right, as such a holder, to enforce any other
provision of this Indenture.
SECTION 14.04. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any
context, the payment of the principal of, premium, if any, or interest on, or
in respect of, any Junior Subordinated Note of any series, such mention shall
be deemed to include mention of the payment of Additional Interest provided for
by the terms of such series of Junior Subordinated Notes to the extent that, in
such context, Additional Interest is, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of
Additional Interest in any provisions hereof shall not be construed as
excluding Additional Interest in those provisions hereof where such express
mention is not made.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
THE MONY GROUP INC.
By: /s/ Richard Daddario
----------------------------------------------
Name: Richard Daddario
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
Trustee
By: /s/ Gemmel Richards
----------------------------------------------
Name: Gemmel Richards
Title: Assistant Vice President
65
<PAGE> 1
Exhibit 4.5-A
CERTIFICATE OF TRUST OF
MONY CAPITAL TRUST I
THIS Certificate of Trust of MONY Capital Trust I (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is MONY Capital
Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201 North
Market Street, Wilmington, Delaware 19801, Attn: Corporate Trustee
Administration Department.
3. Effective Date. This Certificate of Trust will be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
------------------
Name: John J. Cashin
Title: Vice-President
<PAGE> 1
Exhibit 4.5-B
CERTIFICATE OF TRUST OF
MONY CAPITAL TRUST II
THIS Certificate of Trust of MONY Capital Trust II (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is MONY Capital
Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201 North
Market Street, Wilmington, Delaware 19801, Attn: Corporate Trustee
Administration Department.
3. Effective Date. This Certificate of Trust will be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
---------------------
Name: John J. Cashin
Title: Vice-President
<PAGE> 1
EXHIBIT 4.6-A
TRUST AGREEMENT
OF
MONY CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of January 10, 2000 (this "Trust
Agreement"), by and between The MONY Group Inc., a Delaware corporation, as
depositor (the "Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as trustee (the "Delaware Trustee"). The Depositor and the
Delaware Trustee hereby agrees as follows:
1. The trust created hereby shall be known as "MONY Capital Trust I"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Delaware Trustee the sum of $10. The Delaware Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Delaware Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et
seq. (the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary of State
in substantially the form attached hereto as Exhibit A.
3. The Depositor and the Delaware Trustee will enter into an amended
and restated Trust Agreement satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Delaware Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the trust
preferred securities and common securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Delaware Trustee shall not have any duties or obligations hereunder or with
respect of the trust estate, except for the filing of the Certificate of Trust
with the Delaware Secretary of State. Notwithstanding the foregoing, the
Delaware Trustee may take all actions deemed proper as are necessary to effect
the transactions contemplated herein.
4. The Depositor and the Delaware Trustee hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such registration
statement, relating to the registration under the
<PAGE> 2
Securities Act of 1933, as amended (the "1933 Act"), of the trust preferred
securities of the Trust, (b) any preliminary prospectus or prospectus supplement
thereto relating to the trust preferred securities required to be filed pursuant
to Rule 424 under the 1933 Act, and (c) a Registration Statement on Form 8-A or
other appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the trust preferred securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended; (ii) to file with the New
York Stock Exchange or other exchange, and execute on behalf of the Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
trust preferred securities to be listed on the New York Stock Exchange or such
other exchange or quotation system; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the trust preferred securities
under the securities or "Blue Sky" laws of such jurisdictions as the Depositor,
on behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the trust preferred securities
of the Trust. In the event that any filing referred to in clauses (i)-(iii)
above is required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange or quotation system, or state securities or
Blue Sky laws to be executed on behalf of the Trust by a trustee, the Depositor
agrees to appoint administrative trustees who will be hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the administrative trustees,
in their capacities as trustees of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. The
Delaware Trustee may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict of
laws principles).
[SIGNATURE PAGE FOLLOWS]
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE MONY GROUP INC, as Depositor
By: /s/ David V. Weigel
Name: David V. Weigel
Title: V.P.- Treasurer
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Vice-President
<PAGE> 4
EXHIBIT A
CERTIFICATE OF TRUST OF
MONY CAPITAL TRUST I
THIS Certificate of Trust of MONY Capital Trust I (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is MONY Capital
Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201 North
Market Street, Wilmington, Delaware 19801, Attn: Corporate Trustee
Administration Department.
3. Effective Date. This Certificate of Trust will be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee
By:___________________________________
Name:
Title:
<PAGE> 1
EXHIBIT 4.6-B
TRUST AGREEMENT
OF
MONY CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of January 10, 2000 (this "Trust
Agreement"), by and between The MONY Group Inc., a Delaware corporation, as
depositor (the "Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as trustee (the "Delaware Trustee"). The Depositor and the
Delaware Trustee hereby agrees as follows:
1. The trust created hereby shall be known as "MONY Capital Trust II"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Delaware Trustee the sum of $10. The Delaware Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Delaware Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et
seq. (the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary of State
in substantially the form attached hereto as Exhibit A.
3. The Depositor and the Delaware Trustee will enter into an amended
and restated Trust Agreement satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Delaware Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the trust
preferred securities and common securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Delaware Trustee shall not have any duties or obligations hereunder or with
respect of the trust estate, except for the filing of the Certificate of Trust
with the Delaware Secretary of State. Notwithstanding the foregoing, the
Delaware Trustee may take all actions deemed proper as are necessary to effect
the transactions contemplated herein.
4. The Depositor and the Delaware Trustee hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such registration
statement, relating to the registration under the
<PAGE> 2
Securities Act of 1933, as amended (the "1933 Act"), of the trust preferred
securities of the Trust, (b) any preliminary prospectus or prospectus supplement
thereto relating to the trust preferred securities required to be filed pursuant
to Rule 424 under the 1933 Act, and (c) a Registration Statement on Form 8-A or
other appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the trust preferred securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended; (ii) to file with the New
York Stock Exchange or other exchange, and execute on behalf of the Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
trust preferred securities to be listed on the New York Stock Exchange or such
other exchange or quotation system; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the trust preferred securities
under the securities or "Blue Sky" laws of such jurisdictions as the Depositor,
on behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the trust preferred securities
of the Trust. In the event that any filing referred to in clauses (i)-(iii)
above is required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange or quotation system, or state securities or
Blue Sky laws to be executed on behalf of the Trust by a trustee, the Depositor
agrees to appoint administrative trustees who will be hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the administrative trustees,
in their capacities as trustees of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. The
Delaware Trustee may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict of
laws principles).
[SIGNATURE PAGE FOLLOWS]
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE MONY GROUP INC, as Depositor
By: /s/ David V. Weigel
Name: David V. Weigel
Title: V.P.-Treasurer
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Vice-President
<PAGE> 4
EXHIBIT A
CERTIFICATE OF TRUST OF
MONY CAPITAL TRUST II
THIS Certificate of Trust of MONY Capital Trust II (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is MONY Capital
Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201 North
Market Street, Wilmington, Delaware 19801, Attn: Corporate Trustee
Administration Department.
3. Effective Date. This Certificate of Trust will be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:___________________________________
Name:
Title:
<PAGE> 1
Exhibit 4.7-A
MONY CAPITAL TRUST I
FORM OF AMENDED AND RESTATED
TRUST AGREEMENT
among
THE MONY GROUP INC.,
as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
KENNETH M. LEVINE and RICHARD DADDARIO,
as Administrative Trustees
Dated as of _____, _____
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Defined Terms................................................ 1
Section 1.01 Definitions....................................... 1
ARTICLE II Establishment of the Trust.................................. 9
Section 2.01 Name.............................................. 9
Section 2.02 Offices of the Trustees; Principal Place of
Business ......................................... 10
Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses.......................... 10
Section 2.04 Issuance of the Preferred Securities............. 10
Section 2.05 Subscription and Purchase of Junior Subordinated
Notes; Issuance of the Common Securities......... 10
Section 2.06 Declaration of Trust............................. 10
Section 2.07 Authorization to Enter into Certain Transactions. 11
Section 2.08 Assets of Trust.................................. 15
Section 2.09 Title to Trust Property.......................... 15
Section 2.10 Mergers and Consolidations of the Trust.......... 16
ARTICLE III Payment Account........................................... 17
Section 3.01 Payment Account.................................. 17
ARTICLE IV Distributions; Redemption.................................. 17
Section 4.01 Distributions.................................... 17
Section 4.02 Redemption....................................... 19
Section 4.03 Subordination of Common Securities............... 20
Section 4.04 Payment Procedures............................... 21
Section 4.05 Tax Returns and Reports.......................... 21
ARTICLE V Trust Securities Certificates............................... 21
Section 5.01 Initial Ownership................................ 21
Section 5.02 The Trust Securities Certificates................ 22
Section 5.03 Authentication of Trust Securities Certificates.. 22
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates.......................... 22
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.......................... 23
Section 5.06 Persons Deemed Securityholders................... 23
Section 5.07 Access to List of Securityholders' Names and
Addresses ....................................... 23
Section 5.08 Maintenance of Office or Agency.................. 24
Section 5.09 Appointment of Paying Agent...................... 24
Section 5.10 Ownership of Common Securities by Depositor...... 25
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate................... 25
</TABLE>
ii
<PAGE> 3
<TABLE>
<S> <C>
Section 5.12 Notices to Clearing Agency....................... 26
Section 5.13 Definitive Preferred Securities Certificates..... 26
Section 5.14 Rights of Securityholders........................ 27
ARTICLE VI Acts of Securityholders; Meetings; Voting.................. 27
Section 6.01 Limitations on Voting Rights..................... 27
Section 6.02 Notice of Meetings............................... 28
Section 6.03 Meetings of Preferred Securityholders............ 28
Section 6.04 Voting Rights.................................... 29
Section 6.05 Proxies, etc..................................... 29
Section 6.06 Securityholder Action by Written Consent......... 29
Section 6.07 Record Date for Voting and Other Purposes........ 29
Section 6.08 Acts of Securityholders.......................... 29
Section 6.09 Inspection of Records............................ 30
ARTICLE VII Representations and Warranties of the Trustees............ 30
Section 7.01 Representations and Warranties of the Trustees... 30
ARTICLE VIII The Trustees............................................. 32
Section 8.01 Certain Duties and Responsibilities.............. 32
Section 8.02 Notice of Defaults............................... 33
Section 8.03 Certain Rights of Property Trustee............... 33
Section 8.04 Not Responsible for Recitals or Issuance of
Securities ...................................... 35
Section 8.05 May Hold Securities.............................. 35
Section 8.06 Compensation; Fees; Indemnity.................... 35
Section 8.07 Trustees Required; Eligibility................... 36
Section 8.08 Conflicting Interests............................ 36
Section 8.09 Co-Trustees and Separate Trustee................. 36
Section 8.10 Resignation and Removal; Appointment of Successor 38
Section 8.11 Acceptance of Appointment by Successor........... 39
Section 8.12 Merger, Conversion, Consolidation or Succession
to Business...................................... 39
Section 8.13 Preferential Collection of Claims Against Depositor
or Trust......................................... 40
Section 8.14 Reports by Property Trustee...................... 40
Section 8.15 Reports to the Property Trustee.................. 40
Section 8.16 Evidence of Compliance with Conditions Precedent. 41
Section 8.17 Number of Trustees............................... 41
Section 8.18 Delegation of Power.............................. 41
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders.................................. 41
ARTICLE IX Termination and Liquidation................................ 42
Section 9.01 Termination Upon Expiration Date................. 42
Section 9.02 Early Termination................................ 42
Section 9.03 Termination...................................... 43
Section 9.04 Liquidation...................................... 43
</TABLE>
iii
<PAGE> 4
<TABLE>
<S> <C>
Section 9.05 Bankruptcy....................................... 44
ARTICLE X Miscellaneous Provisions.................................... 44
Section 10.01 Guarantee by the Depositor ...................... 44
Section 10.02 Limitation of Rights of Securityholders ......... 45
Section 10.03 Amendment. ...................................... 45
Section 10.04 Separability .................................... 46
Section 10.05 Governing Law ................................... 46
Section 10.06 Successors ...................................... 46
Section 10.07 Headings ........................................ 46
Section 10.08 Notice and Demand ............................... 46
Section 10.09 Agreement Not to Petition ....................... 47
Section 10.10 Conflict with Trust Indenture Act. .............. 47
</TABLE>
EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B [INTENTIONALLY RESERVED]
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
iv
<PAGE> 5
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of _______, ____, by
and among (i) The MONY Group Inc., a Delaware corporation (the "Depositor" or
the "Company"), (ii) The Chase Manhattan Bank, a banking corporation duly
organized and existing under the laws of the State of New York, as trustee (the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Trustee, the "Bank"), (iii) Chase Manhattan Bank Delaware, a banking
corporation duly organized under the laws of Delaware, as Delaware trustee (the
"Delaware Trustee" and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank"), (iv) Kenneth M. Levine, an
individual, and Richard Daddario, an individual, as administrative trustees
(each an "Administrative Trustee" and together the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
January 10, 2000 (the "Original Trust Agreement"), and by the execution and
filing by the Delaware Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated January 10, 2000; and
WHEREAS, the parties hereto desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, Kenneth M. Levine and Richard Daddario as
trustees of the Trust, (ii) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Notes, (iii) the
issuance of the Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
<PAGE> 6
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and not in their individual capacities, or such trustee's successor(s)
in interest in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"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.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court 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 federal
bankruptcy law or any other applicable federal or state law, or appointing
a receiver, liquidator, 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
2
<PAGE> 7
continuance of such decree or order unstayed and in effect for a period of
90 consecutive days; or
(ii) 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
federal bankruptcy law or any other applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator or 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 action by such Person in furtherance of
any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors or a duly authorized committee thereof and to be
in full force and effect on the date of such certification, and delivered to the
Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to the
Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a
day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated ______, ____, relating to the Preferred Securities Certificates,
as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The Depository Trust Company will
be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of
3
<PAGE> 8
this instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Security" means an undivided beneficial ownership interest in the
assets of the Trust having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership
of a Common Security or Securities, substantially in the form attached as
Exhibit C.
"Company" means The MONY Group Inc., and its successors.
"Corporate Trust Office" means the office of the Property Trustee at which
its corporate trust business shall be principally administered.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time.
"Delaware Trustee" means the commercial bank or trust company or any other
Person identified as the "Delaware Trustee" and has the meaning specified in the
preamble to this Trust Agreement solely in its capacity as Delaware Trustee of
the Trust formed and continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor Delaware Trustee
appointed as herein provided.
"Depositor" means the Company, in its capacity as "Depositor" under this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.01.
"Early Termination Date" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be 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):
4
<PAGE> 9
(i) the occurrence of an Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant or
warranty a default in whose performance or breach is dealt with in clause
(ii) or (iii) above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Trustees by the Holders of at least 10% in Liquidation Amount
of the Outstanding Preferred Securities 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
(v) the occurrence of a Bankruptcy Event with respect to the Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Company and the Trust, substantially in the form attached as Exhibit
D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Extension Period" has the meaning specified in Section 4.01(b).
"Guarantee" means the Guarantee Agreement executed and delivered by the
Company and The Chase Manhattan Bank, as guarantee trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Preferred Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as defined in the
Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as defined in the
Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated Indenture.
"Issue Date" means the date of the initial delivery of the Trust
Securities.
"Junior Subordinated Notes" means the $__________ aggregate principal
amount of the Depositor's Series __ ____% Junior Subordinated Notes due ____ __,
____, issued pursuant to the Subordinated Indenture.
5
<PAGE> 10
"Legal Action" has the meaning specified in Section 2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount equal
to the principal amount of Junior Subordinated Notes to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities and (ii)
Junior Subordinated Notes having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Notes are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Notes are
to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Depositor, and delivered to the appropriate Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the Depositor. An
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as is necessary, in such officer's opinion, to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion
6
<PAGE> 11
of Counsel pertaining to federal income tax matters may rely on published
rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means, as
of the date of determination, all Preferred Securities theretofore authenticated
and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(ii) Preferred Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities;
provided that if such Preferred Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which other
Preferred Securities have been authenticated and delivered pursuant to
this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Administrative Trustee or any Affiliate of the Depositor or any
Administrative Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, the Holder of
the Common Securities, one or more Administrative Trustees and/or any such
Affiliate. Preferred Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Property Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
7
<PAGE> 12
"Payment Account" means a segregated non-interest-bearing trust account
maintained by the Property Trustee for the benefit of the Securityholders in
which all amounts paid in respect of the Junior Subordinated Notes will be held
and from which the Property Trustee shall make payments to the Securityholders
in accordance with Section 4.01.
"Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership interest in
the assets of the Trust having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of a Preferred Security or Securities, substantially in the form
attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption of
any Trust Security, the Liquidation Amount of such Trust Security, plus accrued
and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section 8.11.
"Securities Register" and "Securities Registrar" are described in Section
5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person is a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Subordinated Indenture" means the Subordinated Note Indenture, dated as
of January __, 2000, between the Depositor and the Indenture Trustee, as
supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the _____ Supplemental Indenture, dated as
of ________,___, by and between the Depositor and the Indenture Trustee.
8
<PAGE> 13
"Trust" means the Delaware business trust continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Amended and Restated Trust Agreement and any modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trustees" means the Persons identified as "Trustees" in the preamble to
this Trust Agreement solely in their capacities as Trustees of the Trust formed
and continued hereunder and not in their individual capacities, or their
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes, (ii) any cash on
deposit in, or owing to, the Payment Account, and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to this Trust
Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Underwriting Agreement" means the Underwriting Agreement, dated
_______,____, among the Trust, the Depositor and the underwriters named therein.
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be known as "MONY
Capital Trust I", in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued. The Administrative Trustees may change the name of the
Trust from time to time following written notice to the other Trustees and the
Holders.
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<PAGE> 14
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York 10001 or such other address as the Property Trustee
may designate by written notice to the Securityholders and the Depositor. The
principal place of business of the Delaware Trustee is 1201 Market Street,
Wilmington, Delaware 19801, or such other address in Delaware as the Delaware
Trustee may designate by notice to the Depositor. The address of the
Administrative Trustees is c/o The MONY Group Inc., 1740 Broadway, New York, New
York 10019, Attention: Corporate Secretary. The principal place of business of
the Trust is c/o The MONY Group Inc., 1740 Broadway, New York, New York 10019.
The Depositor may change the principal place of business of the Trust at any
time by giving notice thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Delaware Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Preferred Securities. Contemporaneously with
the execution and delivery of this Trust Agreement, the Administrative Trustees,
on behalf of the Trust, shall execute and, upon the written order of any
Administrative Trustee, the Property Trustee shall authenticate and deliver to
the underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _________ Preferred Securities having an
aggregate Liquidation Amount of $______, against receipt of the aggregate
purchase price of such Preferred Securities of $________, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Amount of $_______,
against payment by the Depositor of such amount. Contemporaneously therewith,
the Administrative Trustees, on behalf of the Trust and the Holders, shall
subscribe to and purchase from the Depositor Junior Subordinated Notes,
registered in the name of the Property Trustee and having an aggregate principal
amount equal to $_______, and, in satisfaction of the purchase price for such
Junior Subordinated Notes, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $_________.
Section 2.06 Declaration of Trust. The exclusive purposes and functions of
the Trust are (i) to issue and sell the Trust Securities and use the proceeds
from such sale to acquire the Junior Subordinated Notes, and (ii) to engage in
those activities necessary, incidental, appropriate or convenient thereto. The
Depositor hereby appoints each of the
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Bank, the Delaware Bank, Kenneth M. Levine and Richard Daddario as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the requirements of
the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph C of
this Section, and in accordance with the following paragraphs A and B, the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with the proceeds of
the sale of the Trust Securities; provided, however, the Administrative
Trustees shall cause legal title to all of the Junior Subordinated Notes
to be vested in, and the Junior Subordinated Notes to be held of record in
the name of, the Property Trustee for the benefit of the Trust and Holders
of the Trust Securities;
(ii) to give the Depositor and the Property Trustee prompt written
notice of the occurrence of any Special Event (as defined in the
Supplemental Indenture) and to take any ministerial actions in connection
therewith; provided, that the Administrative Trustees shall consult with
the Depositor and the Property Trustee before taking or refraining to take
any ministerial action in relation to a Special Event;
(iii) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for
the purposes of Section 316(c) of the Trust Indenture Act and with respect
to Distributions, voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Trust Securities as to such actions and
applicable record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 2.07(B)(v), the
Property Trustee has the power to bring such Legal Action;
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(v) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required by
Section 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Administrative Trustee;
(viii)to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of this Trust
Agreement;
(ix) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Trust Securities or to enable the Trust to effect the purposes for
which the Trust has been created;
(x) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the Certificate
Depository Agreement and such other agreements as may be necessary or
desirable in connection with the consummation hereof;
(xiii)to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state securities
or blue sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the Depositor
and the registration of the Preferred Securities under the Exchange Act,
and the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior Subordinated
Notes to the Securityholders in accordance with this Trust Agreement;
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(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Trust Agreement;
(xvii) to register transfers of the Trust Securities in accordance
with this Trust Agreement;
(xviii) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of the Trust
and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have the exclusive
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Trust Securities to
the extent the Junior Subordinated Notes are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage in
such ministerial activities as shall be necessary or appropriate to effect
promptly the distribution pursuant to terms of this Trust Agreement of
Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights,
powers and privileges of a holder of the Junior Subordinated Notes under
the Subordinated Indenture and, if an Event of Default occurs and is
continuing, enforce for the benefit of, and subject to the rights of, the
Holders of the Trust Securities, its rights as holder of the Junior
Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be specifically
required of the Property Trustee pursuant to the terms of this Trust
Agreement;
(v) take any Legal Action specifically required of the Property
Trustee pursuant to the terms of this Trust Agreement which arises out of
or in connection with an Event of Default of which a Responsible Officer
of the Property Trustee has knowledge or the Property Trustee's duties and
obligations under this Trust Agreement, the Delaware Business Trust Act or
the Trust Indenture Act;
(vi) the establishment and maintenance of the Payment Account;
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(vii) the receipt of and holding of legal title to the Junior
Subordinated Notes as described herein;
(viii) the collection of interest, principal and any other payments
made in respect of the Junior Subordinated Notes in the Payment Account;
(ix) if appointed Paying Agent pursuant to the terms hereof, the
distribution of amounts owed to the Securityholders in respect of the
Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the winding up of the
affairs of and termination of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of
Delaware; and
(xiii)the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance
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of the following prior to the date of this Trust Agreement are hereby ratified
and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933, as
amended, in relation to the Preferred Securities, including any amendments
thereto;
(ii) to determine the states in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by or
on behalf of the Trust, and advise the Trustees of actions they must take
on behalf of the Trust, and prepare for execution and filing any documents
to be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any Preferred
Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Preferred Securities and to execute, deliver and
perform the Underwriting Agreement on behalf of the Trust; and
(vi) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States federal income
tax purposes and so that the Junior Subordinated Notes will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist of the
Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and
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administered by the Property Trustee for the benefit of the Securityholders and
the Trust in accordance with this Trust Agreement. The right, title and interest
of the Property Trustee to the Junior Subordinated Notes shall vest
automatically in each Person who may thereafter be appointed as Property Trustee
in accordance with the terms hereof. Such vesting and cessation of title shall
be effective whether or not conveyancing documents have been executed and
delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other Person, except as described below or otherwise provided in
this Trust Agreement. The Trust may at the request of the Company, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Trust Securities, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any state; provided,
that (i) such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or (y) substitutes
for the Preferred Securities other securities having substantially the same
terms as the Trust Securities (herein referred to as the "Successor Securities")
so long as the Successor Securities rank the same as the Trust Securities rank
in priority with respect to Distributions and payments upon liquidation,
redemption and otherwise, (ii) the Company expressly appoints a trustee of such
successor entity possessing the same powers and duties as the Property Trustee
as the holder of legal title to the Junior Subordinated Notes, (iii) the
Preferred Securities or any Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, or replacement,
the Company has received an Opinion of Counsel to the effect that (A) such
merger, consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, and (B) following
such merger, consolidation, amalgamation or replacement, neither the Trust nor
such successor entity will be required to register as an investment company
under the Investment Company Act of 1940, and (viii) the Company guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% in Liquidation Amount of
the Trust Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the successor
Person to be classified as other than a grantor trust for federal income tax
purposes.
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ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal or interest on, and any other payments
or proceeds with respect to, the Junior Subordinated Notes. Upon any receipt by
the Property Trustee as holder of the Junior Subordinated Notes of amounts with
respect thereto, the Property Trustee shall cause such amounts to be distributed
to the Holders of the Trust Securities. The amount so distributed with respect
to each Trust Security shall correspond to the amount received by the Property
Trustee on each Junior Subordinated Note. Amounts held in the Payment Account
shall not be invested by the Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01 Distributions
(a) Distributions on the Trust Securities shall be cumulative and accrue
from the Issue Date and, except in the event that the Depositor exercises its
right to extend the interest payment period for the Junior Subordinated Notes
pursuant to Section 1.04 of the Supplemental Indenture (in which event the
Distributions shall be as set forth in Section 4.01(b)), shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on _______, ____. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a rate
of ___% per annum of the Liquidation Amount of the Trust Securities. The amount
of
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Distributions payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year. If the interest payment period
for the Junior Subordinated Notes is extended pursuant to Section 1.04 of the
Supplemental Indenture (an "Extension Period"), then (a) the Distributions on
the Trust Securities will also be deferred and (b) the rate per annum at which
Distributions on the Trust Securities accumulate shall be increased by an amount
such that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such Extension Period is equal to the aggregate amount of
interest (including interest payable on unpaid interest at the percentage rate
per annum set forth above, compounded quarterly) that accrues during any such
Extension Period on the Junior Subordinated Notes. The payment of such deferred
interest, together with interest thereon, will be distributed to the Holders of
the Trust Securities as received at the end of any Extension Period. The amount
of Distributions payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions.
(d) Distributions, including Additional Amounts, if any, on the Trust
Securities on each Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities on the relevant
record date, which shall be the close of business on the fifteenth calendar day
prior to the relevant Distribution Date. Each Trust Security upon registration
of transfer of or in exchange for or in lieu of any other Trust Security shall
carry the rights of Distributions accrued (including Additional Amounts, if any)
and unpaid, and to accrue (including Additional Amounts, if any), which were
carried by such other Trust Security.
(e) The Depositor, subject to the next succeeding sentence, (a) shall not
declare or pay any dividend or make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock, and (b) shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees other than the Guarantee) issued by the Depositor which
rank pari passu with or junior to the Junior Subordinated Notes, (x) if at such
time the Depositor shall have given notice of its election to extend an interest
payment period for the Junior Subordinated Notes and such extension shall be
continuing, or (y) if at such time the Depositor shall be in default with
respect to its payment or other obligations under the Guarantee with respect to
the Trust Securities. The preceding sentence, however, shall not restrict (i)
any of the actions described in the preceding sentence resulting from any
reclassification of the Depositor's capital stock or the exchange or conversion
of one class or series of the Depositor's capital stock for another class or
series of the Depositor's capital stock, (ii) the purchase of fractional
interests in shares of the Depositor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, or (iii) repurchases, redemptions or other acquisitions of shares of
the Depositor's capital stock in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of employees,
officers, directors or consultants.
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Section 4.02 Redemption.
(a) Upon repayment of the Junior Subordinated Notes in whole or in part,
whether at maturity or at redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee 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 Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Notes. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities and sufficient funds are on deposit in the Payment Account,
then, by 2:00 p.m. New York time, on the Redemption Date, subject to Section
4.02(c), the Property Trustee will, so long as the Preferred Securities are in
book-entry only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price. If
the Preferred Securities are no longer in book-entry only form, the Property
Trustee, subject to Section 4.02(c), shall irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions to pay the Redemption Price to the Holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
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except the right of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue at the
then applicable rate, from such Redemption Date originally established by the
Trust for such Preferred Securities to the date such Redemption Price is
actually paid.
(e) If less than all the Outstanding Trust Securities are to be redeemed
on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated 3% to the Common Securities and 97% to the
Preferred Securities, with such adjustments that each amount so allocated shall
be divisible by $25. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or integral multiple thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25; provided, however, that
before undertaking redemption of the Preferred Securities on other than a pro
rata basis, the Property Trustee shall have received an Opinion of Counsel that
the status of the Trust as a grantor trust for federal income tax purposes would
not be adversely affected. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(f) Subject to the foregoing provisions of Section 4.02 and to applicable
law (including, without limitation, United States federal securities laws), the
Company or its Affiliates may, at any time and from time to time, purchase
outstanding Preferred Securities by tender, in the open market or by private
agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made pro rata based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date an Indenture Event
of Default shall have
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occurred and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of, any Common Security, and no
other payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of Default, the
Holder of Common Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency, which shall credit the relevant Persons' accounts
at such Clearing Agency on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s) shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
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Section 5.02 The Trust Securities Certificates. Each of the Preferred and
Common Securities Certificates shall be issued in minimum denominations of $25
and integral multiples in excess thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Trust Securities
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the Issue
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, and the property Trustee shall cause such Trust
Securities Certificates to be authenticated and delivered, to or upon the
written order of the Depositor signed by its Chairman of the Board, its
President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit E
or Exhibit C, as applicable, executed by the Property Trustee by manual
signature; such authentication shall constitute conclusive evidence that such
Trust Securities Certificate shall have been duly authenticated and delivered
hereunder. All Trust Securities Certificates shall be dated the date of their
authentication.
Section 5.04 Registration of Transfer and Exchange of Preferred Securities
Certificates. The Securities Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may prescribe, the
Securities Registrar shall provide for the registration of Preferred Securities
Certificates and the Common Securities Certificates (subject to Section 5.10 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustees shall execute, and the Property Trustee shall
authenticate and deliver in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of
authentication by Property Trustee. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have been
called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other
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Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Property Trustee
and the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Property Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Property Trustee such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a protected purchaser,
the Administrative Trustees or any one of them on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Property Trustee or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation of
a Trust Securities Certificate for registration of transfer, the Trustees or the
Securities Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions (subject
to Section 4.01(d)) and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses. The
Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year, and (ii) the Depositor or the Property Trustee, as the
case may be, within 15 days after receipt
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by any Administrative Trustee of a request therefor from the Depositor or the
Property Trustee, as the case may be, in writing, a list, in such form as the
Depositor or the Property Trustee, as the case may be, may reasonably require,
of the names and addresses of the Securityholders as of a date not more than 15
days prior to the time such list is furnished; provided, however, that no such
list need be furnished to the Property Trustee so long as the Property Trustee
is the Securities Registrar. If three or more Securityholders or one or more
Holders of Trust Securities Certificates evidencing not less than 25% of the
outstanding Liquidation Amount apply in writing to the Administrative Trustees,
and such application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.08 Maintenance of Office or Agency. The Property Trustee
shall maintain in the Borough of Manhattan, New York, an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Property Trustee initially designates the Corporate Trust Office as its
principal agency for such purposes. The Property Trustee shall give prompt
written notice to the Depositor and to the Securityholders of any change in the
location of the Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Property Trustee (if the Property Trustee is not the Paying Agent) and
the Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions and payments provided hereby. The
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Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Property Trustee, and it may
choose any co-paying agent that is acceptable to the Administrative Trustees and
the Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that a Paying Agent shall resign or be removed, the
Administrative Trustees shall appoint a successor that is acceptable to the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.07 shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On the Issue
Date, the Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities, except for transfers by operation of law, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
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(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including
the payment of principal of and interest on the Book-Entry Preferred
Securities and the giving of instructions or directions to Owners of
Book-Entry Preferred Securities) as the sole Holder of Book-Entry
Preferred Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Trust Agreement, the provisions of this
Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or other
communication to the Owners is required under this Trust Agreement, unless and
until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If (i) the
Depositor advises the Administrative Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, or (ii) the Depositor at its option
advises the Administrative Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency, then the Administrative Trustees
shall notify the Clearing Agency, the Property Trustee and Holders of the
Preferred Securities. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the Book-Entry
Preferred Securities Certificates by the Clearing Agency, accompanied by
registration instructions, the Administrative Trustees or any one of them shall
execute and the Property Trustee shall authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees shall be liable for
any delay in delivery of such instructions and may conclusively rely on,
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and shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Securityholders.
The Definitive Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, will be fully paid and nonassessable by the Trust. Except
as otherwise provided in the Expense Agreement and Section 10.01 hereof, the
Holders of the Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.11 or Section 10.03
of this Trust Agreement, in the Subordinated Indenture, and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Junior Subordinated Notes are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in
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each case, obtaining the prior approval of the Holders of over 50% in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Junior Subordinated Notes affected thereby, no such consent shall be
given by the Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Junior
Subordinated Notes. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides for, or the
Administrative Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to this Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of more than 50% in Liquidation Amount of the
Outstanding Preferred Securities. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that the Trust
will not be classified as other than a grantor trust for United States federal
income tax purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the Preferred
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Administrative Trustees pursuant to Section 10.08 to each Preferred
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
Section 6.03 Meetings of Preferred Securityholders. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
Preferred Securityholders to vote on any matters as to which Preferred
Securityholders are entitled to vote. Preferred Securityholders of record of 50%
of the Preferred Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of
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record present, in person or by proxy, holding more than 50% of the Preferred
Securities (based upon their Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one vote
for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Only Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several Persons, any one of them
may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than 50% of all outstanding Trust Securities
entitled to vote in respect of such action (or such other proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the purposes
of determining the Securityholders who are entitled to notice of and to vote at
any meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 Acts of Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders in person or by an agent appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or
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instruments are delivered to the Administrative Trustees. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders 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
Trust Agreement and (subject to Section 8.01) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
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 the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
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 which the Administrative Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security 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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
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 Liquidation Amount.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Administrative Trustees, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the Trustees.
(a) The Bank hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
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(i) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the
State of New York;
(ii) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid and legally binding
agreement of the Bank, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) the execution, delivery and performance by the Bank of this
Trust Agreement have been duly authorized by all necessary corporate
action on the part of the Bank and do not require any approval of
stockholders of the Bank and such execution, delivery and performance will
not (i) violate the Bank's Charter or By-laws, or (ii) violate any law,
governmental rule or regulation of the United States or the State of New
York governing the banking or trust powers of the Bank or any order,
judgment or decree applicable to the Bank; and
(v) neither the authorization, execution or delivery by the Bank of
this Trust Agreement, nor the consummation of any of the transactions by
the Bank contemplated herein or therein, nor the issuance of the Trust
Securities Certificates pursuant to this Trust Agreement require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing federal or New York law governing the banking
or trust powers of the Bank.
(b) The Delaware Trustee hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(i) the Delaware Trustee is a banking corporation or trust company
duly organized, validly existing and in good standing under the laws of
the State of Delaware;
(ii) the Delaware Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Bank and constitutes the valid and legally
binding agreement of the Delaware Bank, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization,
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moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iv) the execution, delivery and performance by the Delaware Bank of
this Trust Agreement have been duly authorized by all necessary corporate
action on the part of the Delaware Bank and the Delaware Trustee and do
not require any approval of stockholders of the Delaware Bank and such
execution, delivery and performance will not (i) violate the Delaware
Bank's Charter or By-laws, or (ii) violate any law, governmental rule or
regulation of the United States or the State of Delaware governing the
banking or trust powers of the Delaware Bank and the Delaware Trustee, or
any order, judgment or decree applicable to the Delaware Bank or the
Delaware Trustee; and
(v) neither the authorization, execution or delivery by the Delaware
Bank of this Trust Agreement, nor the consummation of any of the
transactions by the Delaware Bank or the Delaware Trustee contemplated
herein or therein, nor the issuance of the Trust Securities Certificates
pursuant to this Trust Agreement require the consent or approval of, the
giving of notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under any
existing federal or Delaware law governing the banking or trust powers of
the Delaware Bank, other than the filing of the Certificate of Trust with
the Delaware Secretary of State.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) The Trustees, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement, and no implied covenants shall be read into this Trust
Agreement against the Trustees. In case an Event of Default has occurred (that
has not been cured or waived), the Administrative Trustees and the Property
Trustee shall exercise such of the rights and powers vested in them by this
Trust Agreement, and use the same degree of care and skill in its exercise
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thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(c) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to the provisions
of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative
courses of action, or (B) in construing any of the provisions
in this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained
herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property
Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by
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the Depositor; provided, however, that if the Property Trustee
does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice
(which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this
Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
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;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(v) the Property 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, consent, order, approval, bond or
other document, unless requested in writing to do so by one or
more Securityholders;
(vi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the
Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(vii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(viii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Trust Securities
Certificates shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for
its own
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account, subject to the protections and limitations afforded
to the Property Trustee under this Trust Agreement;
(ix) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or
sufficiency of the Trust Securities Certificates or the
payment of any taxes or assessments levied thereon or in
connection therewith; and
(x) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for any default or
misconduct of the Administrative Trustees or the Depositor.
Section 8.04 Delaware Trustee. The Delaware Trustee shall not be entitled
to exercise any powers, nor shall the Delaware Trustee have any of the duties
and responsibilities of the Trustees described in this Trust Agreement (except
as required under the Delaware Business Trust Act). The Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act. In the event the Delaware
Trustee shall at any time be required to take any action or perform any duty
hereunder with respect to the Trust, the Delaware Trustee shall be entitled to
the benefits of Section 8.03.
Section 8.05 Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee shall
have received written notice from the Company, any Holder or any other Trustee
that such funds are not legally available.
Section 8.06 May Hold Securities. Except as provided in the definition of
the term "Outstanding" in Article I, any Trustee or any other agent of the
Trustees or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.
Section 8.07 Compensation; Fees; Indemnity. The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation for
all services rendered by the Trustees hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the
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Trustees in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of their
agents and counsel), except any such expense, disbursement or advance as may be
attributable to their willful misconduct, negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred without
willful misconduct, negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties hereunder.
The provisions of this Section 8.07 shall survive the resignation or
removal of any Trustee and the termination of this Trust Agreement.
Section 8.08 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person 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 Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity authorized to conduct a trust business and with its principal place
of business in the State of Delaware that shall act through one or more persons
authorized to bind such entity.
Section 8.09 Conflicting Interests. If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
Section 8.10 Co-Trustees and Separate Trustee. At any time or times, for
the purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at the time be
located, the Holder of the Common Securities and the Property Trustee shall have
power to appoint, and
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upon the written request of the Property Trustee, the Depositor shall for such
purpose join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such Trust Property, in either
case with such powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons in the capacity aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the other
provisions of this Section. If the Depositor does not join in such appointment
within 15 days after the receipt by it of a request so to do, or in case an
Indenture Event of Default has occurred and is continuing, the Property Trustee
alone shall have power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section shall satisfy the requirements of
Section 8.07.
Should any written instrument from the Depositor be reasonably required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written request
of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such resignation or
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removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(iv) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any
other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.11 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.12.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.12 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Amount of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.12. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.12. If no successor Relevant Trustee shall have been so appointed
in accordance with this Section 8.11 and accepted appointment in the manner
required by Section 8.12, any
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Securityholder who has been a Securityholder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
the successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
Section 8.12 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder. Upon request of any such successor Relevant
Trustee, the Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the preceding section. No successor
Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under
this Article.
Section 8.13 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the
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successor of such Relevant Trustee hereunder, provided such Person 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.
Section 8.14 Preferential Collection of Claims Against Depositor or Trust.
If and when the Property Trustee shall be or become a creditor of the Depositor
or the Trust (or any other obligor upon the Junior Subordinated Notes or the
Trust Securities), the Property Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Depositor
or Trust (or any such other obligor). For purposes of Section 311(b)(4) and (6)
of the Trust Indenture Act:
(a) "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
(b) "self-liquidating paper" means any draft, bill of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Depositor or
the Trust (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 Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.15 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15, 20__,
if required by Section 313(a) of the Trust Indenture Act, the Property 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 date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the reports
required by Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and (d) of the Trust Indenture
Act.
Section 8.16 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
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Section 8.17 Evidence of Compliance with Conditions Precedent. Each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.18 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.18(a), or if the
number of Trustees is increased pursuant to Section 8.18(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.11.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.11, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Trust
Agreement), shall have all powers granted to the Administrative Trustees and
shall discharge the duties imposed upon the Administrative Trustees by this
Trust Agreement.
Section 8.19 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 8.20 Enforcement of Rights of Property Trustee by Securityholders.
If (i) the Trust fails to pay Distributions in full on the Preferred Securities
for more than 20 consecutive quarterly distribution periods, or (ii) an Event of
Default occurs and is continuing, then the Holders of Preferred Securities will
rely on the enforcement by the Property Trustee of its rights against the
Company as the holder of the Junior Subordinated Notes. In addition, the Holders
of a majority in aggregate Liquidation
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Amount of the Preferred Securities will have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power conferred upon
the Property Trustee under this Trust Agreement, including the right to direct
the Property Trustee to exercise the remedies available to it as a holder of the
Junior Subordinated Notes, provided that such direction shall not be in conflict
with any rule of law or with this Trust Agreement, and could not involve the
Property Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate. If the Property Trustee fails to enforce its
rights under the Junior Subordinated Notes, a Holder of Preferred Securities
may, to the fullest extent permitted by applicable law, institute a legal
proceeding against the Company to enforce the Property Trustee's rights under
this Trust Agreement without first instituting any legal proceeding against the
Property Trustee or any other Person, including the Trust; it being understood
and intended that no one or more of such Holders shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision of this Trust
Agreement to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Trust Agreement, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders. Notwithstanding the foregoing, a Holder of Preferred Securities may
institute a legal proceeding directly against the Company, without first
instituting a legal proceeding against or requesting or directing that action be
taken by the Property Trustee or any other Person, for enforcement of payment to
such Holder of principal of or interest on the Junior Subordinated Notes having
a principal amount equal to the aggregate stated liquidation amount of the
Preferred Securities of such Holder on or after the due dates therefor specified
or provided for in the Junior Subordinated Notes. The Company shall be
subrogated to all rights of the Holders of Preferred Securities in respect of
any amounts paid to such Holders by the Company pursuant to this Section.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 20__ (the "Expiration Date") or earlier
pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the
Depositor, dissolution or liquidation of the Depositor, or the dissolution
of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee by
the Depositor at any time (which direction is optional and wholly within
the
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discretion of the Depositor) to terminate the Trust and distribute the
Junior Subordinated Notes to Securityholders as provided in Section 9.04;
and
(iii) the payment at maturity or redemption of all of the Junior
Subordinated Notes, and the consequent payment of the Preferred
Securities.
Section 9.03 Termination. The respective obligations and responsibilities
of the Trust and the Trustees created hereby shall terminate upon the latest to
occur of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts or instruments required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses owed by the
Trust; and (c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of Section
9.02 occurs, the Trust shall be liquidated and the Property Trustee shall
distribute the Junior Subordinated Notes to the Securityholders as provided in
this Section 9.04.
(b) In connection with a distribution of the Junior Subordinated Notes,
each Holder of Trust Securities shall be entitled to receive, after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated Notes as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution of
the Junior Subordinated Notes to Securityholders, the Administrative Trustees
shall establish a record date for such distribution (which shall be not more
than 45 days prior to the Liquidation Date) and, either with the Property
Trustee or acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as they shall deem appropriate
to effect the distribution of Junior Subordinated Notes in exchange for the
Outstanding Trust Securities Certificates.
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(d) After the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates representing a Like Amount of Junior
Subordinated Notes will be issued to Holders of Trust Securities Certificates,
upon surrender of such certificates to the Administrative Trustees or their
agent for exchange, (iii) any Trust Securities Certificates not so surrendered
for exchange will be deemed to represent a Like Amount of Junior Subordinated
Notes, accruing interest at the rate provided for in the Junior Subordinated
Notes from the last Distribution Date on which a Distribution was made on such
Trust Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such Junior
Subordinated Notes) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Notes upon surrender of Trust Securities Certificates.
(e) The Depositor will use its best efforts to have the Junior
Subordinated Notes that are distributed in exchange for the Preferred Securities
to be listed on such securities exchange as the Preferred Securities are then
listed. The Depositor may elect to have the Junior Subordinated Notes issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in clause
(i) of Section 9.02 has occurred, the Trust shall be liquidated. The Property
Trustee shall distribute the Junior Subordinated Notes to the Securityholders as
provided in Section 9.04, unless such distribution is determined by the
Administrative Trustees not to be practical, in which event the Holders will be
entitled to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors, an amount equal
to the Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if an Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each Person to whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or
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<PAGE> 49
liabilities of the Trust, other than obligations of the Trust to pay to Holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such Holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This guarantee is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes at any
time that any Trust Securities are outstanding; provided, however, that, except
in the case of clause (ii), such action shall not adversely affect in any
material respect the interests of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision in this
Trust Agreement may be amended by the Trust or the Trustees with (i) the consent
of Securityholders representing more than 50% (based upon Liquidation Amounts)
of the Trust Securities then Outstanding and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not affect
the Trust's status as a grantor trust for United States federal income tax
purposes or the Trust's exemption from status of an "investment company" under
the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.03 or 6.06 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date, or (iii) change
the consent required pursuant to Section 10.03.
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<PAGE> 50
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended.
(e) Without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor. In
executing any amendment permitted by this Trust Agreement, the Trustees shall be
entitled to receive, and (subject to Section 8.01) shall be fully protected in
relying upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Trust Agreement and that all conditions
precedent to the execution and delivery of such amendment have been satisfied.
Any Trustee may, but shall not be obligated to, enter into any such amendment
which affects such Trustee's own rights, duties, immunities or liabilities under
this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
Section 10.04 Separability. In case any provision in this Trust Agreement
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE;
PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL
BE GOVERNED BY NEW YORK LAW.
Section 10.06 Successors. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to both the Trust and the Trustees,
including any successor by operation of law.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other communication
which by any provision of this Trust Agreement is required or permitted to be
given or served to or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case, addressed,
(i) in the case of a Preferred Securityholder, to such Preferred Securityholder
as such Securityholder's name and address appear on the Securities Register and
(ii) in the case of the Common Securityholder or the Depositor, to The MONY
Group Inc., 1740 Broadway, New York,
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<PAGE> 51
New York 10019, Attention: Corporate Secretary, with a copy to Dewey Ballantine
LLP, 1301 Avenue of the Americas, New York, New York 10019, Attention: Jonathan
L. Freedman. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust or the Trustees shall be given in writing addressed (until another address
is published by the Trust) as follows: (i) with respect to the Property Trustee
or the Delaware Trustee, at the address for such Trustee set forth in Section
2.02; and (ii) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked Attention: Administrative
Trustees of MONY Capital Trust I c/o Corporate Secretary with a copy to Dewey
Ballantine LLP, 1301 Avenue of the Americas, New York, New York 10019,
Attention: Jonathan L. Freedman, Facsimile No. (212) 259-6333. Such notice,
demand or other communication to or upon the Trust or the Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustees or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trustee Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control.
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<PAGE> 52
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
48
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement
or have caused this Trust Agreement to be executed on their behalf, all as of
the day and year first above written.
THE MONY GROUP INC.,
as Depositor
By:________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:________________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:________________________________
Name:
Title:
KENNETH M. LEVINE,
as Administrative Trustee
RICHARD DADDARIO,
as Administrative Trustee
49
<PAGE> 54
EXHIBIT A
[INTENTIONALLY RESERVED]
50
<PAGE> 55
EXHIBIT B
[INTENTIONALLY RESERVED]
51
<PAGE> 56
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 ________
Certificate Evidencing Common Securities
of
MONY Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
MONY Capital Trust I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that The MONY Group Inc.
(the "Holder") is the registered owner of _____________ (_______) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Common Securities (liquidation amount $25
per Common Security) (the "Common Securities"). In accordance with Section 5.10
of the Trust Agreement (as defined below) the Common Securities are not
transferable, except by operation of law, and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of _____, ____, as the same may
be amended from time to time (the "Trust Agreement"), including the designation
of the terms of the Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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<PAGE> 57
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have executed
this certificate this ____ day of _______,_____.
MONY Capital Trust I
By:
Kenneth M. Levine,
as Administrative Trustee and not in his
individual capacity
By:
Richard Daddario,
as Adminstrative Trustee and not in his
individual capacity
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Trust Agreement.
----------------------------
as Property Trustee
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<PAGE> 58
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is made
as of _____, ___, between The MONY Group Inc., a Delaware corporation (the
"Company"), and MONY Capital Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Junior Subordinated Notes from the Company and to
issue and sell MONY Capital Trust I ___% Trust Preferred Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ______, ____ as the same may be amended from time to time (the
"Trust Agreement"); and
WHEREAS, the Company is the issuer of the Junior Subordinated Notes.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges will be made in reliance
upon the execution and delivery of this Agreement, the Company and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by the Company and The Chase Manhattan Bank, as
guarantee trustee, or under this Agreement for any
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<PAGE> 59
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of the Company under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Trust or any of the assets of the Trust. There shall be no obligation of
the Beneficiaries to give notice to, or obtain the consent of, the
Company with respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or any
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner materially adverse to such Beneficiary or to
the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail) or
by registered or
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<PAGE> 60
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed), to-wit:
MONY Capital Trust I
c/o The Chase Manhattan Bank
[ ]
[ ]
Facsimile No.: (_____) _______
Attention: Corporate Trustee
Administration Department
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Facsimile No.: (212) _______
Attention: Corporate Secretary
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: (212) 259-6333
Attention: Jonathan L. Freedman
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 61
THIS AGREEMENT is executed as of the date and year first above written.
THE MONY GROUP INC.
By:_______________________________
MONY CAPITAL TRUST I
By:_______________________________
Kenneth M. Levine,
as Administrative Trustee and not in
his individual capacity
57
<PAGE> 62
EXHIBIT E
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to MONY Capital
Trust I or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge, or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
________________
P-1 CUSIP NO. _______
Certificate Evidencing Preferred Securities
of
MONY Capital Trust I
______% Trust Preferred Securities
(Liquidation amount $25 per Preferred Security)
MONY Capital Trust I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of _____ MILLION (_______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the MONY Capital Trust I ____% Trust
Preferred Securities (liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust, dated as of _______, ____, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of Preferred Securities as set forth therein. The holder of this
certificate is entitled to the benefits of a guarantee by The MONY Group Inc., a
Delaware corporation (the "Company"), pursuant to a Guarantee Agreement between
the Company and The Chase Manhattan Bank, as guarantee trustee, dated as of
_______, ____, as the same may be amended from time to time (the "Guarantee"),
to the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the
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<PAGE> 63
holder of this certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is bound
by the Trust Agreement and is entitled to the benefits thereunder.
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<PAGE> 64
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have executed
this certificate this ____ day of _____, _____.
MONY CAPITAL TRUST I
By:_______________________________
Kenneth M. Levine,
as Administrative Trustee and not in
his individual capacity
By:_______________________________
Richard Daddario,
as Administrative Trustee and not in
his individual capacity
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
__________________________________
as Property Trustee
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<PAGE> 65
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
<PAGE> 1
Exhibit 4.7-B
MONY CAPITAL TRUST II
FORM OF AMENDED AND RESTATED
TRUST AGREEMENT
among
THE MONY GROUP INC.,
as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
KENNETH M. LEVINE and RICHARD DADDARIO,
as Administrative Trustees
Dated as of ______, ____
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Defined Terms................................................................................. 1
Section 1.01 Definitions................................................................ 1
ARTICLE II Establishment of the Trust................................................................... 9
Section 2.01 Name....................................................................... 9
Section 2.02 Offices of the Trustees; Principal Place of Business....................... 10
Section 2.03 Initial Contribution of Trust Property; Organizational Expenses............ 10
Section 2.04 Issuance of the Preferred Securities....................................... 10
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities ....................................... 10
Section 2.06 Declaration of Trust....................................................... 10
Section 2.07 Authorization to Enter into Certain Transactions........................... 11
Section 2.08 Assets of Trust............................................................ 15
Section 2.09 Title to Trust Property.................................................... 15
Section 2.10 Mergers and Consolidations of the Trust.................................... 16
ARTICLE III Payment Account............................................................................. 17
Section 3.01 Payment Account............................................................ 17
ARTICLE IV Distributions; Redemption.................................................................... 17
Section 4.01 Distributions.............................................................. 17
Section 4.02 Redemption................................................................. 19
Section 4.03 Subordination of Common Securities......................................... 20
Section 4.04 Payment Procedures......................................................... 21
Section 4.05 Tax Returns and Reports.................................................... 21
ARTICLE V Trust Securities Certificates................................................................. 21
Section 5.01 Initial Ownership.......................................................... 21
Section 5.02 The Trust Securities Certificates.......................................... 22
Section 5.03 Authentication of Trust Securities Certificates............................ 22
Section 5.04 Registration of Transfer and Exchange of Preferred Securities Certificates. 22
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates......... 23
Section 5.06 Persons Deemed Securityholders............................................. 23
Section 5.07 Access to List of Securityholders' Names and Addresses..................... 23
Section 5.08 Maintenance of Office or Agency............................................ 24
Section 5.09 Appointment of Paying Agent................................................ 24
Section 5.10 Ownership of Common Securities by Depositor................................ 25
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate. ................................................. 25
</TABLE>
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<TABLE>
<S> <C>
Section 5.12 Notices to Clearing Agency................................................. 26
Section 5.13 Definitive Preferred Securities Certificates............................... 26
Section 5.14 Rights of Securityholders.................................................. 26
ARTICLE VI Acts of Securityholders; Meetings; Voting.................................................... 27
Section 6.01 Limitations on Voting Rights............................................... 27
Section 6.02 Notice of Meetings......................................................... 28
Section 6.03 Meetings of Preferred Securityholders...................................... 28
Section 6.04 Voting Rights.............................................................. 28
Section 6.05 Proxies, etc............................................................... 28
Section 6.06 Securityholder Action by Written Consent................................... 29
Section 6.07 Record Date for Voting and Other Purposes.................................. 29
Section 6.08 Acts of Securityholders.................................................... 29
Section 6.09 Inspection of Records...................................................... 30
ARTICLE VII Representations and Warranties of the Trustees.............................................. 30
Section 7.01 Representations and Warranties of the Trustees............................. 30
ARTICLE VIII The Trustees............................................................................... 32
Section 8.01 Certain Duties and Responsibilities........................................ 32
Section 8.02 Notice of Defaults......................................................... 33
Section 8.03 Certain Rights of Property Trustee......................................... 33
Section 8.04 Delaware Trustee........................................................... 35
Section 8.05 Not Responsible for Recitals or Issuance of Securities..................... 35
Section 8.06 May Hold Securities........................................................ 35
Section 8.07 Compensation; Fees; Indemnity.............................................. 35
Section 8.08 Trustees Required; Eligibility............................................. 36
Section 8.09 Conflicting Interests...................................................... 36
Section 8.10 Co-Trustees and Separate Trustee........................................... 36
Section 8.11 Resignation and Removal; Appointment of Successor.......................... 37
Section 8.12 Acceptance of Appointment by Successor..................................... 39
Section 8.13 Merger, Conversion, Consolidation or Succession to Business................ 39
Section 8.14 Preferential Collection of Claims Against Depositor or Trust............... 39
Section 8.15 Reports by Property Trustee................................................ 40
Section 8.16 Reports to the Property Trustee............................................ 40
Section 8.17 Evidence of Compliance with Conditions Precedent........................... 40
Section 8.18 Number of Trustees......................................................... 40
Section 8.19 Delegation of Power........................................................ 41
Section 8.20 Enforcement of Rights of Property Trustee by Securityholders............... 41
ARTICLE IX Termination and Liquidation.................................................................. 42
Section 9.01 Termination Upon Expiration Date........................................... 42
Section 9.02 Early Termination.......................................................... 42
Section 9.03 Termination................................................................ 42
</TABLE>
iii
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<TABLE>
<S> <C>
Section 9.04 Liquidation................................................................ 43
Section 9.05 Bankruptcy................................................................. 44
ARTICLE X Miscellaneous Provisions...................................................................... 44
Section 10.01 Guarantee by the Depositor................................................. 44
Section 10.02 Limitation of Rights of Securityholders.................................... 44
Section 10.03 Amendment.................................................................. 45
Section 10.04 Separability............................................................... 46
Section 10.05 Governing Law.............................................................. 46
Section 10.06 Successors................................................................. 46
Section 10.07 Headings................................................................... 46
Section 10.08 Notice and Demand.......................................................... 46
Section 10.09 Agreement Not to Petition.................................................. 47
Section 10.10 Conflict with Trust Indenture Act.......................................... 47
</TABLE>
EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B [INTENTIONALLY RESERVED]
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ________, ___,
by and among (i) The MONY Group Inc., a Delaware corporation (the "Depositor" or
the "Company"), (ii) The Chase Manhattan Bank, a banking corporation duly
organized and existing under the laws of the State of New York, as trustee (the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Trustee, the "Bank"), (iii) Chase Manhattan Bank Delaware, a banking
corporation duly organized under the laws of Delaware, as Delaware trustee (the
"Delaware Trustee" and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank"), (iv) Kenneth M. Levine, an
individual, and Richard Daddario, an individual, as administrative trustees
(each an "Administrative Trustee" and together the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
January 10, 2000 (the "Original Trust Agreement"), and by the execution and
filing by the Delaware Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated January 10, 2000; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, Kenneth M. Levine and Richard Daddario as
trustees of the Trust, (ii) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Notes, (iii) the
issuance of the Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
<PAGE> 6
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and not in their individual capacities, or such trustee's successor(s)
in interest in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court 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 federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver, liquidator,
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
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continuance of such decree or order unstayed and in effect for a period
of 90 consecutive days; or
(ii) 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 federal bankruptcy law or any other applicable federal
or state law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or 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 action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to the
Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated ______, ____, relating to the Preferred Securities Certificates,
as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of
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<PAGE> 8
this instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit C.
"Company" means The MONY Group Inc., and its successors.
"Corporate Trust Office" means the office of the Property Trustee at
which its corporate trust business shall be principally administered.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the commercial bank or trust company or any
other Person identified as the "Delaware Trustee" and has the meaning specified
in the preamble to this Trust Agreement solely in its capacity as Delaware
Trustee of the Trust formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as herein provided.
"Depositor" means the Company, in its capacity as "Depositor" under
this Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Date" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be 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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(i) the occurrence of an Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is dealt with in
clause (ii) or (iii) above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Trustees by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities 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
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Company and the Trust, substantially in the form attached as Exhibit
D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" has the meaning specified in Section 9.01.
"Extension Period" has the meaning specified in Section 4.01(b).
"Guarantee" means the Guarantee Agreement executed and delivered by the
Company and The Chase Manhattan Bank, as guarantee trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Preferred Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as defined in
the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as defined in the
Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated Indenture.
"Issue Date" means the date of the initial delivery of the Trust
Securities.
"Junior Subordinated Notes" means the $__________ aggregate principal
amount of the Depositor's Series __ ____% Junior Subordinated Notes due ____ __,
____, issued pursuant to the Subordinated Indenture.
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"Legal Action" has the meaning specified in Section 2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Junior Subordinated Notes to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such Junior
Subordinated Notes are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Notes
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(e) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(f) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(g) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(h) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion
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of Counsel pertaining to federal income tax matters may rely on published
rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been authenticated and delivered
pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Administrative Trustee or any Affiliate of the Depositor or any
Administrative Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, the Holder of
the Common Securities, one or more Administrative Trustees and/or any such
Affiliate. Preferred Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Property Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
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"Payment Account" means a segregated non-interest-bearing trust account
maintained by the Property Trustee for the benefit of the Securityholders in
which all amounts paid in respect of the Junior Subordinated Notes will be held
and from which the Property Trustee shall make payments to the Securityholders
in accordance with Section 4.01.
"Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership interest
in the assets of the Trust having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of a Preferred Security or Securities, substantially in the form
attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Amount of such Trust Security, plus
accrued and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" are described in
Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Business Trust Act.
"Subordinated Indenture" means the Subordinated Note Indenture, dated
as of January __, 2000, between the Depositor and the Indenture Trustee, as
supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the _____ Supplemental Indenture, dated
as of _______, ____, by and between the Depositor and the Indenture Trustee.
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"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Trust Agreement solely in their capacities as Trustees of the Trust
formed and continued hereunder and not in their individual capacities, or their
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes, (ii) any cash
on deposit in, or owing to, the Payment Account, and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement, dated
_____,_____, among the Trust, the Depositor and the underwriters named therein.
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be known as "MONY Capital
Trust II", in which name the Trustees may conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust and sue
and be sued. The Administrative Trustees may change the name of the Trust from
time to time following written notice to the other Trustees and the Holders.
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Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York 10001 or such other address as the Property Trustee
may designate by written notice to the Securityholders and the Depositor. The
principal place of business of the Delaware Trustee is 1201 Market Street,
Wilmington, Delaware 19801, or such other address in Delaware as the Delaware
Trustee may designate by notice to the Depositor. The address of the
Administrative Trustees is c/o The MONY Group Inc., 1740 Broadway, New York, New
York 10019, Attention: Corporate Secretary. The principal place of business of
the Trust is c/o The MONY Group Inc., 1740 Broadway, New York, New York 10019.
The Depositor may change the principal place of business of the Trust at any
time by giving notice thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Delaware Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Preferred Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the Administrative
Trustees, on behalf of the Trust, shall execute and, upon the written order of
any Administrative Trustee, the Property Trustee shall authenticate and deliver
to the underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _________ Preferred Securities having an
aggregate Liquidation Amount of $______, against receipt of the aggregate
purchase price of such Preferred Securities of $________, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Amount of $_______,
against payment by the Depositor of such amount. Contemporaneously therewith,
the Administrative Trustees, on behalf of the Trust and the Holders, shall
subscribe to and purchase from the Depositor Junior Subordinated Notes,
registered in the name of the Property Trustee and having an aggregate principal
amount equal to $_______, and, in satisfaction of the purchase price for such
Junior Subordinated Notes, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $_________.
Section 2.06 Declaration of Trust. The exclusive purposes and functions
of the Trust are (i) to issue and sell the Trust Securities and use the proceeds
from such sale to acquire the Junior Subordinated Notes, and (ii) to engage in
those activities necessary, incidental, appropriate or convenient thereto. The
Depositor hereby appoints each of the
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Bank, the Delaware Bank, Kenneth M. Levine and Richard Daddario as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the requirements of
the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph C of
this Section, and in accordance with the following paragraphs A and B, the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with the proceeds
of the sale of the Trust Securities; provided, however, the
Administrative Trustees shall cause legal title to all of the Junior
Subordinated Notes to be vested in, and the Junior Subordinated Notes
to be held of record in the name of, the Property Trustee for the
benefit of the Trust and Holders of the Trust Securities;
(ii) to give the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Supplemental Indenture) and to take any ministerial actions in
connection therewith; provided, that the Administrative Trustees shall
consult with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a Special
Event;
(iii) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including for the purposes of Section 316(c) of the Trust Indenture Act
and with respect to Distributions, voting rights, redemptions, and
exchanges, and to issue relevant notices to Holders of the Trust
Securities as to such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(v), the Property Trustee has the power to bring such Legal
Action;
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(v) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(vi) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may
be executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of this
Trust Agreement;
(ix) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business
trust under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Trust Securities or to enable
the Trust to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense Agreement and
the Certificate Depository Agreement and such other agreements as may
be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior Subordinated
Notes to the Securityholders in accordance with this Trust Agreement;
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(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Trust Agreement;
(xvii) to register transfers of the Trust Securities in
accordance with this Trust Agreement;
(xviii) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of the
Trust and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have the exclusive
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the Trust
Securities to the extent the Junior Subordinated Notes are redeemed or
mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage
in such ministerial activities as shall be necessary or appropriate to
effect promptly the distribution pursuant to terms of this Trust
Agreement of Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights,
powers and privileges of a holder of the Junior Subordinated Notes
under the Subordinated Indenture and, if an Event of Default occurs and
is continuing, enforce for the benefit of, and subject to the rights
of, the Holders of the Trust Securities, its rights as holder of the
Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement;
(v) take any Legal Action specifically required of the
Property Trustee pursuant to the terms of this Trust Agreement which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has knowledge or the
Property Trustee's duties and obligations under this Trust Agreement,
the Delaware Business Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the Payment Account;
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(vii) the receipt of and holding of legal title to the Junior
Subordinated Notes as described herein;
(viii) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Notes in the
Payment Account;
(ix) if appointed Paying Agent pursuant to the terms hereof,
the distribution of amounts owed to the Securityholders in respect of
the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the winding up of
the affairs of and termination of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance
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of the following prior to the date of this Trust Agreement are hereby ratified
and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933, as
amended, in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
NASDAQ National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities and to execute,
deliver and perform the Underwriting Agreement on behalf of the Trust;
and
(vi) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States federal income
tax purposes and so that the Junior Subordinated Notes will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and
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administered by the Property Trustee for the benefit of the Securityholders and
the Trust in accordance with this Trust Agreement. The right, title and interest
of the Property Trustee to the Junior Subordinated Notes shall vest
automatically in each Person who may thereafter be appointed as Property Trustee
in accordance with the terms hereof. Such vesting and cessation of title shall
be effective whether or not conveyancing documents have been executed and
delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other Person, except as described below or otherwise provided in
this Trust Agreement. The Trust may at the request of the Company, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Trust Securities, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any state; provided,
that (i) such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or (y) substitutes
for the Preferred Securities other securities having substantially the same
terms as the Trust Securities (herein referred to as the "Successor Securities")
so long as the Successor Securities rank the same as the Trust Securities rank
in priority with respect to Distributions and payments upon liquidation,
redemption and otherwise, (ii) the Company expressly appoints a trustee of such
successor entity possessing the same powers and duties as the Property Trustee
as the holder of legal title to the Junior Subordinated Notes, (iii) the
Preferred Securities or any Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, or replacement,
the Company has received an Opinion of Counsel to the effect that (A) such
merger, consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, and (B) following
such merger, consolidation, amalgamation or replacement, neither the Trust nor
such successor entity will be required to register as an investment company
under the Investment Company Act of 1940, and (viii) the Company guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% in Liquidation Amount of
the Trust Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the successor
Person to be classified as other than a grantor trust for federal income tax
purposes.
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ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal or interest on, and any other payments
or proceeds with respect to, the Junior Subordinated Notes. Upon any receipt by
the Property Trustee as holder of the Junior Subordinated Notes of amounts with
respect thereto, the Property Trustee shall cause such amounts to be distributed
to the Holders of the Trust Securities. The amount so distributed with respect
to each Trust Security shall correspond to the amount received by the Property
Trustee on each Junior Subordinated Note. Amounts held in the Payment Account
shall not be invested by the Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01 Distributions
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Junior Subordinated
Notes pursuant to Section 1.04 of the Supplemental Indenture (in which event the
Distributions shall be as set forth in Section 4.01(b)), shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on _____, ____. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of ___% per annum of the Liquidation Amount of the Trust Securities. The
amount of
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Distributions payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year. If the interest payment period
for the Junior Subordinated Notes is extended pursuant to Section 1.04 of the
Supplemental Indenture (an "Extension Period"), then (a) the Distributions on
the Trust Securities will also be deferred and (b) the rate per annum at which
Distributions on the Trust Securities accumulate shall be increased by an amount
such that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such Extension Period is equal to the aggregate amount of
interest (including interest payable on unpaid interest at the percentage rate
per annum set forth above, compounded quarterly) that accrues during any such
Extension Period on the Junior Subordinated Notes. The payment of such deferred
interest, together with interest thereon, will be distributed to the Holders of
the Trust Securities as received at the end of any Extension Period. The amount
of Distributions payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions.
(d) Distributions, including Additional Amounts, if any, on the Trust
Securities on each Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities on the relevant
record date, which shall be the close of business on the fifteenth calendar day
prior to the relevant Distribution Date. Each Trust Security upon registration
of transfer of or in exchange for or in lieu of any other Trust Security shall
carry the rights of Distributions accrued (including Additional Amounts, if any)
and unpaid, and to accrue (including Additional Amounts, if any), which were
carried by such other Trust Security.
The Depositor, subject to the next succeeding sentence, (a) shall not
declare or pay any dividend or make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock, and (b) shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees other than the Guarantee) issued by the Depositor which
rank pari passu with or junior to the Junior Subordinated Notes, (x) if at such
time the Depositor shall have given notice of its election to extend an interest
payment period for the Junior Subordinated Notes and such extension shall be
continuing, or (y) if at such time the Depositor shall be in default with
respect to its payment or other obligations under the Guarantee with respect to
the Trust Securities. The preceding sentence, however, shall not restrict (i)
any of the actions described in the preceding sentence resulting from any
reclassification of the Depositor's capital stock or the exchange or conversion
of one class or series of the Depositor's capital stock for another class or
series of the Depositor's capital stock, (ii) the purchase of fractional
interests in shares of the Depositor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, or (iii) repurchases, redemptions or other acquisitions of shares of
the Depositor's capital stock in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of employees,
officers, directors or consultants.
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Section 4.02 Redemption.
(a) Upon repayment of the Junior Subordinated Notes in whole or in
part, whether at maturity or at redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee 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 Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Notes. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities and sufficient funds are on deposit in the Payment
Account, then, by 2:00 p.m. New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee will, so long as the Preferred Securities
are in book-entry only form, irrevocably deposit with the Clearing Agency for
the Preferred Securities funds sufficient to pay the applicable Redemption
Price. If the Preferred Securities are no longer in book-entry only form, the
Property Trustee, subject to Section 4.02(c), shall irrevocably deposit with the
Paying Agent funds sufficient to pay the applicable Redemption Price and will
give the Paying Agent irrevocable instructions to pay the Redemption Price to
the Holders thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
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except the right of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue at the
then applicable rate, from such Redemption Date originally established by the
Trust for such Preferred Securities to the date such Redemption Price is
actually paid.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Common Securities and 97%
to the Preferred Securities, with such adjustments that each amount so allocated
shall be divisible by $25. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or integral multiple thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25; provided, however, that
before undertaking redemption of the Preferred Securities on other than a pro
rata basis, the Property Trustee shall have received an Opinion of Counsel that
the status of the Trust as a grantor trust for federal income tax purposes would
not be adversely affected. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(f) Subject to the foregoing provisions of Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Company or its Affiliates may, at any time and from time to time,
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or Redemption
Date an Indenture Event of Default shall have
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occurred and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of, any Common Security, and no
other payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of Default,
the Holder of Common Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency, which shall credit the relevant Persons' accounts
at such Clearing Agency on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
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Section 5.02 The Trust Securities Certificates. Each of the Preferred
and Common Securities Certificates shall be issued in minimum denominations of
$25 and integral multiples in excess thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Trust Securities
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the
Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, and the property Trustee shall
cause such Trust Securities Certificates to be authenticated and delivered, to
or upon the written order of the Depositor signed by its Chairman of the Board,
its President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit E
or Exhibit C, as applicable, executed by the Property Trustee by manual
signature; such authentication shall constitute conclusive evidence that such
Trust Securities Certificate shall have been duly authenticated and delivered
hereunder. All Trust Securities Certificates shall be dated the date of their
authentication.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and the Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustees shall execute, and the Property Trustee shall
authenticate and deliver in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of
authentication by Property Trustee. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have been
called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other
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Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Property Trustee
and the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Property Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Property Trustee such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a protected purchaser,
the Administrative Trustees or any one of them on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Property Trustee or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the Trustees or
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions (subject to Section 4.01(d)) and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be bound
by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year, and (ii) the Depositor or the Property Trustee, as the
case may be, within 15 days after receipt
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by any Administrative Trustee of a request therefor from the Depositor or the
Property Trustee, as the case may be, in writing, a list, in such form as the
Depositor or the Property Trustee, as the case may be, may reasonably require,
of the names and addresses of the Securityholders as of a date not more than 15
days prior to the time such list is furnished; provided, however, that no such
list need be furnished to the Property Trustee so long as the Property Trustee
is the Securities Registrar. If three or more Securityholders or one or more
Holders of Trust Securities Certificates evidencing not less than 25% of the
outstanding Liquidation Amount apply in writing to the Administrative Trustees,
and such application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.08 Maintenance of Office or Agency. The Property Trustee
shall maintain in the Borough of Manhattan, New York, an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Property Trustee initially designates the Corporate Trust Office as its
principal agency for such purposes. The Property Trustee shall give prompt
written notice to the Depositor and to the Securityholders of any change in the
location of the Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the Distributions and payments provided hereby. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Property Trustee, and it may
choose any co-paying agent that is acceptable to the Administrative Trustees and
the Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that a Paying Agent shall resign or be removed, the
Administrative Trustees shall appoint a successor that is acceptable to the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree
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with the Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On the Issue
Date, the Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities, except for transfers by operation of law, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and interest on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations
to the Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
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(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If (i) the
Depositor advises the Administrative Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, or (ii) the Depositor at its option
advises the Administrative Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency, then the Administrative Trustees
shall notify the Clearing Agency, the Property Trustee and Holders of the
Preferred Securities. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the Book-Entry
Preferred Securities Certificates by the Clearing Agency, accompanied by
registration instructions, the Administrative Trustees or any one of them shall
execute and the Property Trustee shall authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Securityholders.
The Definitive Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property,
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profits or rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth therein
and in this Trust Agreement. The Trust Securities shall have no preemptive or
other similar rights and when issued and delivered to Securityholders against
payment of the purchase price therefor, except as otherwise provided in the
Expense Agreement and Section 10.01 hereof, will be fully paid and nonassessable
by the Trust. Except as otherwise provided in the Expense Agreement and Section
10.01 hereof, the Holders of the Trust Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Indenture, and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Junior Subordinated Notes are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in each
case, obtaining the prior approval of the Holders of over 50% in Liquidation
Amount of the Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of each holder of
Junior Subordinated Notes affected thereby, no such consent shall be given by
the Trustees without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except pursuant to a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Indenture Trustee with respect to the Junior Subordinated
Notes. In addition to obtaining the foregoing approvals of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that the
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Trust will not be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides for, or
the Administrative Trustees otherwise propose to effect, (i) any action that
would adversely affect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of more than 50% in Liquidation Amount
of the Outstanding Preferred Securities. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that the Trust
will not be classified as other than a grantor trust for United States federal
income tax purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.08 to each
Preferred Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Section 6.03 Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
Preferred Securityholders to vote on any matters as to which Preferred
Securityholders are entitled to vote. Preferred Securityholders of record of 50%
of the Preferred Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of record present, in person or by proxy, holding more than 50%
of the Preferred Securities (based upon their Liquidation Amount) held by the
Preferred Securityholders of record present, either in person or by proxy, at
such meeting shall constitute the action of the Securityholders, unless this
Trust Agreement requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc.At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting
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unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than 50% of all outstanding Trust Securities
entitled to vote in respect of such action (or such other proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders 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 Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
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 the execution thereof. Where such execution is by
a signer acting in a capacity other than his
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individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his 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 which the Administrative Trustees deem
sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security 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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
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 Liquidation Amount.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Administrative Trustees, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the Trustees.
(a) The Bank hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(i) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the
State of New York;
(ii) the Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Bank and constitutes the valid and legally binding
agreement of the Bank, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and
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similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) the execution, delivery and performance by the Bank of
this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Bank and do not require any
approval of stockholders of the Bank and such execution, delivery and
performance will not (i) violate the Bank's Charter or By-laws, or (ii)
violate any law, governmental rule or regulation of the United States
or the State of New York governing the banking or trust powers of the
Bank or any order, judgment or decree applicable to the Bank; and
(v) neither the authorization, execution or delivery by the
Bank of this Trust Agreement, nor the consummation of any of the
transactions by the Bank contemplated herein or therein, nor the
issuance of the Trust Securities Certificates pursuant to this Trust
Agreement require the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with respect to
any governmental authority or agency under any existing federal or New
York law governing the banking or trust powers of the Bank.
(b) The Delaware Trustee hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(i) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(ii) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Bank and constitutes the valid and
legally binding agreement of the Delaware Bank, enforceable against it
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) the execution, delivery and performance by the Delaware
Bank of this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Delaware Bank and the Delaware
Trustee and do not require any approval of stockholders of the Delaware
Bank and such execution, delivery and performance will not (i) violate
the Delaware Bank's Charter or By-laws, or (ii) violate any law,
governmental rule or regulation of the United States or the State of
Delaware governing the banking or trust powers of the Delaware Bank and
the Delaware Trustee, or any order, judgment or decree applicable to
the Delaware Bank or the Delaware Trustee; and
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(v) neither the authorization, execution or delivery by the
Delaware Bank of this Trust Agreement, nor the consummation of any of
the transactions by the Delaware Bank or the Delaware Trustee
contemplated herein or therein, nor the issuance of the Trust
Securities Certificates pursuant to this Trust Agreement require the
consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any governmental
authority or agency under any existing federal or Delaware law
governing the banking or trust powers of the Delaware Bank, other than
the filing of the Certificate of Trust with the Delaware Secretary of
State.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) The Trustees, before the occurrence of any Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement, and no implied covenants shall be read into this Trust
Agreement against the Trustees. In case an Event of Default has occurred (that
has not been cured or waived), the Administrative Trustees and the Property
Trustee shall exercise such of the rights and powers vested in them by this
Trust Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(c) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
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Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative
courses of action, or (B) in construing any of the provisions
in this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained
herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property
Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days),
it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any
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action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(v) the Property 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, consent, order, approval, bond or
other document, unless requested in writing to do so by one or
more Securityholders;
(vi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the
Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(vii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(viii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Trust Securities
Certificates shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations
afforded to the Property Trustee under this Trust Agreement;
(ix) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or
sufficiency of the Trust Securities Certificates or the
payment of any taxes or assessments levied thereon or in
connection therewith; and
(x) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for any default or
misconduct of the Administrative Trustees or the Depositor.
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Section 8.04 Delaware Trustee. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Trustees described in this Trust Agreement
(except as required under the Delaware Business Trust Act). The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act. In the event
the Delaware Trustee shall at any time be required to take any action or perform
any duty hereunder with respect to the Trust, the Delaware Trustee shall be
entitled to the benefits of Section 8.03.
Section 8.05 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee shall
have received written notice from the Company, any Holder or any other Trustee
that such funds are not legally available.
Section 8.06 May Hold Securities. Except as provided in the definition
of the term "Outstanding" in Article I, any Trustee or any other agent of the
Trustees or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.
Section 8.07 Compensation; Fees; Indemnity. The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the reasonable expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their willful misconduct,
negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred without
willful misconduct, negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties hereunder.
The provisions of this Section 8.07 shall survive the resignation or
removal of any Trustee and the termination of this Trust Agreement.
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Section 8.08 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person 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 Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity authorized to conduct a trust business and with its principal place
of business in the State of Delaware that shall act through one or more persons
authorized to bind such entity.
Section 8.09 Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
Section 8.10 Co-Trustees and Separate Trustee. At any time or times,
for the purpose of meeting the legal requirements of the Trust Indenture Act or
of any jurisdiction in which any part of the Trust Property may at the time be
located, the Holder of the Common Securities and the Property Trustee shall have
power to appoint, and upon the written request of the Property Trustee, the
Depositor shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to act as separate trustee of any such Trust
Property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor does not join in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Indenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment. Any co-trustee or
separate trustee appointed pursuant to this Section shall satisfy the
requirements of Section 8.07.
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Should any written instrument from the Depositor be reasonably required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case an Indenture Event
of Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.11 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a
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successor Relevant Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Relevant Trustee in accordance
with the applicable requirements of Section 8.12.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.12 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Amount of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.12. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.12. If no successor Relevant Trustee shall have been so appointed
in accordance with this Section 8.11 and accepted appointment in the manner
required by Section 8.12, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
the successor in each case being an
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individual who satisfies the eligibility requirement for Administrative Trustees
set forth in Section 8.07). Additionally, notwithstanding the foregoing or any
other provision of this Trust Agreement, in the event the Depositor believes
that any Administrative Trustee has become incompetent or incapacitated, the
Depositor, by notice to the remaining Trustees, may terminate the status of such
Person as an Administrative Trustee (in which case the vacancy so created will
be filled in accordance with the preceding sentence).
Section 8.12 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder. Upon request of any such successor Relevant
Trustee, the Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the preceding section. No successor
Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under
this Article.
Section 8.13 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person 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.
Section 8.14 Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Junior Subordinated Notes
or the Trust Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "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
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(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (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 Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.15 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15,
20__, if required by Section 313(a) of the Trust Indenture Act, the Property
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 date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the reports
required by Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and (d) of the Trust Indenture
Act.
Section 8.16 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
Section 8.17 Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.18 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.18(a), or if the
number of
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Trustees is increased pursuant to Section 8.18(a), a vacancy shall occur. The
vacancy shall be filled with a Trustee appointed in accordance with Section
8.11.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.11, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.19 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.20 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay Distributions in full on the
Preferred Securities for more than 20 consecutive quarterly distribution
periods, or (ii) an Event of Default occurs and is continuing, then the Holders
of Preferred Securities will rely on the enforcement by the Property Trustee of
its rights against the Company as the holder of the Junior Subordinated Notes.
In addition, the Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities will have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property Trustee
under this Trust Agreement, including the right to direct the Property Trustee
to exercise the remedies available to it as a holder of the Junior Subordinated
Notes, provided that such direction shall not be in conflict with any rule of
law or with this Trust Agreement, and could not involve the Property Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Notes, a Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the Company to
enforce the Property Trustee's rights under this Trust Agreement without first
instituting any legal proceeding against the Property Trustee or any other
Person, including the Trust; it being understood and intended that no one or
more of such Holders shall have any right in any manner whatsoever by virtue of,
or by availing of, any
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provision of this Trust Agreement to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal and
ratable benefit of all such Holders. Notwithstanding the foregoing, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the Junior
Subordinated Notes having a principal amount equal to the aggregate stated
liquidation amount of the Preferred Securities of such Holder on or after the
due dates therefor specified or provided for in the Junior Subordinated Notes.
The Company shall be subrogated to all rights of the Holders of Preferred
Securities in respect of any amounts paid to such Holders by the Company
pursuant to this Section.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 200__ (the "Expiration Date") or earlier
pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the
Depositor, dissolution or liquidation of the Depositor, or the
dissolution of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee
by the Depositor at any time (which direction is optional and wholly
within the discretion of the Depositor) to terminate the Trust and
distribute the Junior Subordinated Notes to Securityholders as provided
in Section 9.04; and
(iii) the payment at maturity or redemption of all of the
Junior Subordinated Notes, and the consequent payment of the Preferred
Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
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Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of Section
9.02 occurs, the Trust shall be liquidated and the Property Trustee shall
distribute the Junior Subordinated Notes to the Securityholders as provided in
this Section 9.04.
(b) In connection with a distribution of the Junior Subordinated Notes,
each Holder of Trust Securities shall be entitled to receive, after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Junior
Subordinated Notes as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution of
the Junior Subordinated Notes to Securityholders, the Administrative Trustees
shall establish a record date for such distribution (which shall be not more
than 45 days prior to the Liquidation Date) and, either with the Property
Trustee or acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as they shall deem appropriate
to effect the distribution of Junior Subordinated Notes in exchange for the
Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will no longer
be deemed to be Outstanding, (ii) certificates representing a Like Amount of
Junior Subordinated Notes will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Junior
Subordinated Notes, accruing interest at the rate provided for in the Junior
Subordinated Notes from the last Distribution Date on which a Distribution was
made on such Trust Certificates until such certificates are so surrendered (and
until such certificates are so surrendered, no payments of interest or principal
will be made to Holders of Trust Securities Certificates with respect to such
Junior Subordinated Notes) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Notes upon surrender of Trust Securities Certificates.
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(e) The Depositor will use its best efforts to have the Junior
Subordinated Notes that are distributed in exchange for the Preferred Securities
to be listed on such securities exchange as the Preferred Securities are then
listed. The Depositor may elect to have the Junior Subordinated Notes issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Junior Subordinated Notes to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if an Indenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each Person to whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders of any Preferred
Securities or other similar interests in the Trust the amounts due such Holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This guarantee is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes at any time that any Trust Securities are outstanding; provided,
however, that, except in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any Securityholder
and, in the case of clause (i), any amendments of this Trust Agreement shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Securityholders representing more than 50% (based upon Liquidation
Amounts) of the Trust Securities then Outstanding and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date, or (iii) change
the consent required pursuant to Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended.
(e) Without the consent of the Depositor, this Trust Agreement may not
be amended in a manner which imposes any additional obligation on the Depositor.
In executing any amendment permitted by this Trust Agreement, the Trustees shall
be entitled to receive, and (subject to Section 8.01) shall be fully protected
in relying upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Trust Agreement and that all
conditions precedent to the execution and delivery of such amendment have been
satisfied. Any Trustee may, but shall not be
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obligated to, enter into any such amendment which affects such Trustee's own
rights, duties, immunities or liabilities under this Trust Agreement or
otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.04 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE;
PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL
BE GOVERNED BY NEW YORK LAW.
Section 10.06 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to The MONY Group Inc., 1740 Broadway, New York, New York 10019,
Attention: Corporate Secretary, with a copy to Dewey Ballantine LLP, 1301 Avenue
of the Americas, New York, New York 10019, Attention: Jonathan L. Freedman. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee or the Delaware Trustee, at the address for such Trustee set forth in
Section 2.02; and (ii) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor,
46
<PAGE> 51
marked Attention: Administrative Trustees of MONY Capital Trust II c/o Corporate
Secretary with a copy to Dewey Ballantine LLP, 1301 Avenue of the Americas, New
York, New York 10019, Attention: Jonathan L. Freedman, Facsimile No. (212)
259-6333. Such notice, demand or other communication to or upon the Trust or the
Trustees shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustees or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trustee Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
47
<PAGE> 52
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
48
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
THE MONY GROUP INC.,
as Depositor
By: ___________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ___________________________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: ___________________________________________
Name:
Title:
KENNETH M. LEVINE,
as Administrative Trustee
RICHARD DADDARIO,
as Administrative Trustee
49
<PAGE> 54
EXHIBIT A
[INTENTIONALLY RESERVED]
50
<PAGE> 55
EXHIBIT B
[INTENTIONALLY RESERVED]
51
<PAGE> 56
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 ________
Certificate Evidencing Common Securities
of
MONY Capital Trust II
Common Securities
(liquidation amount $25 per Common Security)
MONY Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that The MONY
Group Inc. (the "Holder") is the registered owner of _____________ (_______)
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). In accordance with Section
5.10 of the Trust Agreement (as defined below) the Common Securities are not
transferable, except by operation of law, and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of ______, _____, as the same may
be amended from time to time (the "Trust Agreement"), including the designation
of the terms of the Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
52
<PAGE> 57
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of _____, ____.
MONY Capital Trust II
By:
Kenneth M. Levine,
as Administrative Trustee and not in his
individual capacity
By:
Richard Daddario,
as Administrative Trustee and not in his
individual capacity
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
----------------------------
as Property Trustee
53
<PAGE> 58
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of _______, ____, between The MONY Group Inc., a Delaware corporation
(the "Company"), and MONY Capital Trust II, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Junior Subordinated Notes from the Company and to
issue and sell MONY Capital Trust II ___% Trust Preferred Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of ________, ____ as the same may be amended from time to time
(the "Trust Agreement"); and
WHEREAS, the Company is the issuer of the Junior Subordinated Notes.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges will be made in reliance
upon the execution and delivery of this Agreement, the Company and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by the Company and The Chase Manhattan Bank, as
guarantee trustee, or under this Agreement for any
54
<PAGE> 59
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of the Company under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust. There shall be
no obligation of the Beneficiaries to give notice to, or obtain the
consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Preferred Securities of any series are outstanding, this Agreement shall not
be modified or amended in any manner materially adverse to such Beneficiary or
to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail) or by registered or
55
<PAGE> 60
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed), to-wit:
MONY Capital Trust II
c/o The Chase Manhattan Bank
[ ]
[ ]
Facsimile No.: (_____) _______
Attention: Corporate Trustee
Administration Department
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Facsimile No.: (212) _______
Attention: Corporate Secretary
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: (212) 259-6333
Attention: Jonathan L. Freedman
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
56
<PAGE> 61
THIS AGREEMENT is executed as of the date and year first above written.
THE MONY GROUP INC.
By:
------------------------------------
MONY CAPITAL TRUST II
By:
-------------------------------------
Kenneth M. Levine,
as Administrative Trustee and not in
his individual capacity
57
<PAGE> 62
EXHIBIT E
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to MONY Capital
Trust II or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge, or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
_______________
P-1 CUSIP NO. _______
Certificate Evidencing Preferred Securities
of
MONY Capital Trust II
______% Trust Preferred Securities
(Liquidation amount $25 per Preferred Security)
MONY Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co.
(the "Holder") is the registered owner of _____ MILLION (_______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the MONY Capital Trust II ____% Trust
Preferred Securities (liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust, dated as of ______, ____, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of Preferred Securities as set forth therein. The holder of this
certificate is entitled to the benefits of a guarantee by The MONY Group Inc., a
Delaware corporation (the "Company"), pursuant to a Guarantee Agreement between
the Company and The Chase Manhattan Bank, as guarantee trustee, dated as of
_______, ____, as the same may be amended from time to time (the "Guarantee"),
to the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the
58
<PAGE> 63
holder of this certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
59
<PAGE> 64
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of ______, ____.
MONY CAPITAL TRUST II
By:
------------------------------------------
Kenneth M. Levine,
as Administrative Trustee and not in
his individual capacity
By:
-----------------------------------------
Richard Daddario,
as Administrative Trustee and not in
his individual capacity
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
-----------------------------------------------
as Property Trustee
60
<PAGE> 65
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
<PAGE> 1
Exhibit 4.11-A
FORM OF GUARANTEE AGREEMENT
Between
The MONY Group Inc.
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
---------,------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS....................................................................................1
SECTION 1.01. Definitions......................................................................1
ARTICLE II TRUST INDENTURE ACT...........................................................................3
SECTION 2.01. Trust Indenture Act; Application.................................................3
SECTION 2.02. Lists of Holders of Securities...................................................4
SECTION 2.03. Reports by the Trustee...........................................................4
SECTION 2.04. Periodic Reports to Trustee......................................................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent.................................4
SECTION 2.06. Events of Default; Waiver........................................................4
SECTION 2.07. Event of Default; Notice.........................................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.........................................................5
SECTION 3.01. Powers and Duties of the Trustee.................................................5
SECTION 3.02. Certain Rights of Trustee........................................................6
SECTION 3.03. Compensation; Fees; Indemnity....................................................8
ARTICLE IV TRUSTEE.......................................................................................9
SECTION 4.01. Trustee; Eligibility.............................................................9
SECTION 4.02. Appointment, Removal and Resignation of Trustee..................................9
ARTICLE V GUARANTEE.....................................................................................10
SECTION 5.01. Guarantee.......................................................................10
SECTION 5.02. Waiver of Notice and Demand.....................................................10
SECTION 5.03. Obligations Not Affected........................................................10
SECTION 5.04. Rights of Holders...............................................................11
SECTION 5.05. Guarantee of Payment............................................................11
SECTION 5.06. Subrogation.....................................................................12
SECTION 5.07. Independent Obligations.........................................................12
ARTICLE VI SUBORDINATION................................................................................12
SECTION 6.01. Subordination...................................................................12
ARTICLE VII TERMINATION.................................................................................12
SECTION 7.01. Termination.....................................................................12
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
ARTICLE VIII MISCELLANEOUS..............................................................................13
SECTION 8.01. Successors and Assigns..........................................................13
SECTION 8.02. Amendments......................................................................13
SECTION 8.03. Notices.........................................................................13
SECTION 8.04. Benefit.........................................................................14
SECTION 8.05. Interpretation..................................................................14
SECTION 8.06. Governing Law...................................................................14
</TABLE>
ii
<PAGE> 4
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_______,____, between THE MONY GROUP INC., a Delaware corporation (the
"Guarantor"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
trustee (the "Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of MONY CAPITAL
TRUST I, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _______,____, among the Trustee, the other
Trustees named therein, The MONY Group Inc., as Depositor, and the holders of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
as of ______,____ $____________ aggregate liquidation amount of its ___% Trust
Preferred Securities (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Trust and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Trust
and the proceeds thereof will be used to purchase the Junior Subordinated Notes
(as defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires to irrevocably and unconditionally
agree, to the extent set forth herein, to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder (as defined herein) thereof, which payment the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee Agreement for the benefit of the Holders from time to
time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings assigned to such
terms in the Trust Agreement as in effect on the date hereof.
"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
<PAGE> 5
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Event of Default" means a failure by the Guarantor to perform
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Trust: (i) any accrued and
unpaid distributions that are required to be paid on such Preferred Securities
but if and only if and to the extent the Trust has funds legally and immediately
available therefor sufficient to make such payment; (ii) the redemption price,
including all accrued and unpaid distributions to the date of redemption (the
"Redemption Price"), with respect to the Preferred Securities called for
redemption by the Trust but if and only if and to the extent that the Trust has
funds legally and immediately available therefor sufficient to make such
payment; and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Junior Subordinated Notes to the holders of Trust Securities or the redemption
of all of the Preferred Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the Preferred
Securities to the date of payment, to the extent the Trust has funds legally and
immediately available therefor, and (b) the amount of assets of the Trust
remaining available for distribution to Holders in liquidation of the Trust (in
either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as of
January __, 2000, among the Guarantor, as Subordinated Note Issuer, and The
Chase Manhattan Bank, as trustee, as supplemented by the __________ Supplemental
Indenture dated as of _____, ____, by and between the Guarantor and The Chase
Manhattan Bank, as Trustee.
"Majority in liquidation amount of Preferred Securities" means
a vote by Holder(s) of Preferred Securities, voting separately as a class, of
more than 50% of the liquidation amount of all Preferred Securities outstanding
at the time of determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
2
<PAGE> 6
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of the Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means The Chase Manhattan Bank until a Successor
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such Successor
Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
3
<PAGE> 7
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the time such list is furnished, and (b) at such other times as the
Trustee may reasonably request in writing, within 30 days after the receipt by
the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor or at any time the Trustee is the Securities Registrar
under the Trust Agreement. The Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee. Within 60 days after May
15 of each year commencing May 15, 200__, the Trustee shall provide to the
Holders of the Preferred Securities such reports as are required by Section
313(a) of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee. The Guarantor shall
provide to the Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act, and shall
provide, within 120 days after the end of each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act
in the form and in the manner required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of all of the Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
4
<PAGE> 8
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Trustee, unless such
defaults have been cured before the giving of such notice, provided that the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any
Event of Default unless the Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
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<PAGE> 9
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement;
and
(B) in the absence of negligence and bad
faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of
this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully 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
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<PAGE> 10
document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel with
respect to legal matters 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
accordance with such advice or opinion; such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right
at any time to seek instructions concerning the administration
of this Guarantee Agreement from any court of competent
jurisdiction;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Trustee such
adequate security and indemnity as would satisfy a reasonable
person in the position of the Trustee, against the costs,
expenses (including reasonable attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Trustee; provided that nothing
contained in this Section 3.02(a)(v) shall be taken to relieve
the Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it
by this Guarantee Agreement;
(vi) 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;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through
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<PAGE> 11
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; and
(viii) whenever in the administration of this
Guarantee Agreement the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Trustee (i)
may request instructions from the Holders, (ii) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trustee shall be construed to be
a duty.
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Guarantee Agreement (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 or bad faith;
and
(c) to indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the reasonable 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.
The provisions of this Section 3.03 shall survive the resignation or removal of
the Trustee and the termination of this Guarantee Agreement.
8
<PAGE> 12
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this
Section 4.01(a)(ii), 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.
(b) If at any time the Trustee shall cease to be eligible to
so act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act, subject to the rights of the Trustee
under the penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such
9
<PAGE> 13
appointment by instrument in writing executed by such Successor Trustee and
delivered to the Guarantor and the resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Trust),
as and when due, regardless of any defense, right of set-off or counterclaim
which the Guarantor may have or assert against any Person. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Trust to pay
such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of this Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Junior Subordinated Notes permitted by the Indenture);
10
<PAGE> 14
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Trustee to be held for the benefit of the Holders; (ii) the Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the
Holders of a Majority in liquidation amount of the Preferred Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Trustee under this Guarantee
Agreement, provided that such direction shall not be in conflict with any rule
of law or with this Guarantee Agreement, and could not involve the Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against or requesting or directing that
action be taken by the Trustee or any other Person; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Guarantee
Agreement to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Guarantee Agreement, except
in the manner herein provided and for the equal and ratable benefit of all of
such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication)
11
<PAGE> 15
or upon the distribution of Junior Subordinated Notes to the Holders in exchange
for all of the Preferred Securities.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Trust in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee Agreement;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts of Guarantee
Payments are due and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Trust with respect to the Preferred Securities and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, including the Junior Subordinated Notes, except those obligations or
liabilities made pari passu or subordinate by their terms, (ii) pari passu with
the most senior preferred or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred or preference securities of any Affiliate of the
Guarantor, and (iii) senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities, (ii) the distribution of Junior
Subordinated Notes to the Holders in exchange for all of the Preferred
Securities, or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or under this Guarantee Agreement.
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<PAGE> 16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger, conveyance,
transfer, or lease involving the Guarantor that is permitted under Article Eight
of the Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes
which do not materially and adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Guarantee Agreement may only
be amended with the prior approval of the Holders of more than 50% in
liquidation amount of all the outstanding Preferred Securities. The provisions
of Article Six of the Trust Agreement concerning meetings of Holders shall apply
to the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Trustee and the
Holders:
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Facsimile No.: (212) 708-2000
Attention: Corporate Secretary
with copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: (212) 259-6333
Attention: Jonathan L. Freedman
(b) if given to the Trust, in care of the Trustee, or to the
Trustee at the Trust's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Trust may give notice to the Holders:
MONY Capital Trust I
c/o The Chase Manhattan Bank
[ ]
[ ]
13
<PAGE> 17
Attn: [Corporate Trustee Administration Department]
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered in either case solely because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(b) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(c) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(d) a reference to the singular includes the plural and vice
versa; and
(e) references to each of the masculine, feminine and neuter
genders shall be deemed to include references to the other two genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
THE MONY GROUP INC.
14
<PAGE> 18
By: ___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: ___________________________________
Name:
Title:
15
<PAGE> 1
Exhibit 4.11-B
FORM OF GUARANTEE AGREEMENT
Between
The MONY Group Inc.
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
--------, ----
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
Page
<S> <C>
ARTICLE I DEFINITIONS....................................................................................1
SECTION 1.01. Definitions......................................................................1
ARTICLE II TRUST INDENTURE ACT...........................................................................3
SECTION 2.01. Trust Indenture Act; Application.................................................3
SECTION 2.02. Lists of Holders of Securities...................................................4
SECTION 2.03. Reports by the Trustee...........................................................4
SECTION 2.04. Periodic Reports to Trustee......................................................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent.................................4
SECTION 2.06. Events of Default; Waiver........................................................4
SECTION 2.07. Event of Default; Notice.........................................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.........................................................5
SECTION 3.01. Powers and Duties of the Trustee.................................................5
SECTION 3.02. Certain Rights of Trustee........................................................6
SECTION 3.03. Compensation; Fees; Indemnity....................................................8
ARTICLE IV TRUSTEE.......................................................................................9
SECTION 4.01. Trustee; Eligibility.............................................................9
SECTION 4.02. Appointment, Removal and Resignation of Trustee..................................9
ARTICLE V GUARANTEE.....................................................................................10
SECTION 5.01. Guarantee.......................................................................10
SECTION 5.02. Waiver of Notice and Demand.....................................................10
SECTION 5.03. Obligations Not Affected........................................................10
SECTION 5.04. Rights of Holders...............................................................11
SECTION 5.05. Guarantee of Payment............................................................11
SECTION 5.06. Subrogation.....................................................................12
SECTION 5.07. Independent Obligations.........................................................12
ARTICLE VI SUBORDINATION................................................................................12
SECTION 6.01. Subordination...................................................................12
ARTICLE VII TERMINATION.................................................................................12
SECTION 7.01. Termination.....................................................................12
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VIII MISCELLANEOUS..............................................................................13
SECTION 8.01. Successors and Assigns..........................................................13
SECTION 8.02. Amendments......................................................................13
SECTION 8.03. Notices.........................................................................13
SECTION 8.04. Benefit.........................................................................14
SECTION 8.05. Interpretation..................................................................14
SECTION 8.06. Governing Law...................................................................14
</TABLE>
ii
<PAGE> 4
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_____, ___, between THE MONY GROUP INC., a Delaware corporation (the
"Guarantor"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
trustee (the "Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of MONY CAPITAL
TRUST II, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of ______, ____, among the Trustee, the other
Trustees named therein, The MONY Group Inc., as Depositor, and the holders of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
as of ______, ___ $____________ aggregate liquidation amount of its ___% Trust
Preferred Securities (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Trust and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Trust
and the proceeds thereof will be used to purchase the Junior Subordinated Notes
(as defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires to irrevocably and unconditionally
agree, to the extent set forth herein, to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder (as defined herein) thereof, which payment the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee Agreement for the benefit of the Holders from time to
time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings assigned to such
terms in the Trust Agreement as in effect on the date hereof.
"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
<PAGE> 5
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Event of Default" means a failure by the Guarantor to perform
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Trust: (i) any accrued and
unpaid distributions that are required to be paid on such Preferred Securities
but if and only if and to the extent the Trust has funds legally and immediately
available therefor sufficient to make such payment; (ii) the redemption price,
including all accrued and unpaid distributions to the date of redemption (the
"Redemption Price"), with respect to the Preferred Securities called for
redemption by the Trust but if and only if and to the extent that the Trust has
funds legally and immediately available therefor sufficient to make such
payment; and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Junior Subordinated Notes to the holders of Trust Securities or the redemption
of all of the Preferred Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the Preferred
Securities to the date of payment, to the extent the Trust has funds legally and
immediately available therefor, and (b) the amount of assets of the Trust
remaining available for distribution to Holders in liquidation of the Trust (in
either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as of
January __, 2000, among the Guarantor, as Subordinated Note Issuer, and The
Chase Manhattan Bank, as trustee, as supplemented by the __________ Supplemental
Indenture dated as of ______, ____, by and between the Guarantor and The Chase
Manhattan Bank, as Trustee.
"Majority in liquidation amount of Preferred Securities" means
a vote by Holder(s) of Preferred Securities, voting separately as a class, of
more than 50% of the liquidation amount of all Preferred Securities outstanding
at the time of determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
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(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of the Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means The Chase Manhattan Bank until a Successor
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such Successor
Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
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SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the time such list is furnished, and (b) at such other times as the
Trustee may reasonably request in writing, within 30 days after the receipt by
the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor or at any time the Trustee is the Securities Registrar
under the Trust Agreement. The Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee. Within 60 days after May
15 of each year commencing May 15, 200__, the Trustee shall provide to the
Holders of the Preferred Securities such reports as are required by Section
313(a) of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee. The Guarantor shall
provide to the Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act, and shall
provide, within 120 days after the end of each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act
in the form and in the manner required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of all of the Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
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SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Trustee, unless such
defaults have been cured before the giving of such notice, provided that the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any
Event of Default unless the Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
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(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement;
and
(B) in the absence of negligence and bad
faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of
this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully 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
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document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel with
respect to legal matters 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
accordance with such advice or opinion; such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right
at any time to seek instructions concerning the administration
of this Guarantee Agreement from any court of competent
jurisdiction;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Trustee such
adequate security and indemnity as would satisfy a reasonable
person in the position of the Trustee, against the costs,
expenses (including reasonable attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Trustee; provided that nothing
contained in this Section 3.02(a)(v) shall be taken to relieve
the Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it
by this Guarantee Agreement;
(vi) 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;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through
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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; and
(viii) whenever in the administration of this
Guarantee Agreement the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Trustee (i)
may request instructions from the Holders, (ii) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trustee shall be construed to be
a duty.
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Guarantee Agreement (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 or bad faith;
and
(c) to indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the reasonable 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.
The provisions of this Section 3.03 shall survive the resignation or removal of
the Trustee and the termination of this Guarantee Agreement.
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ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this
Section 4.01(a)(ii), 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.
(b) If at any time the Trustee shall cease to be eligible to
so act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act, subject to the rights of the Trustee
under the penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such
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appointment by instrument in writing executed by such Successor Trustee and
delivered to the Guarantor and the resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Trust),
as and when due, regardless of any defense, right of set-off or counterclaim
which the Guarantor may have or assert against any Person. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Trust to pay
such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of this Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Junior Subordinated Notes permitted by the Indenture);
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(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Trustee to be held for the benefit of the Holders; (ii) the Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the
Holders of a Majority in liquidation amount of the Preferred Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Trustee under this Guarantee
Agreement, provided that such direction shall not be in conflict with any rule
of law or with this Guarantee Agreement, and could not involve the Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against or requesting or directing that
action be taken by the Trustee or any other Person; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Guarantee
Agreement to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Guarantee Agreement, except
in the manner herein provided and for the equal and ratable benefit of all of
such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication)
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or upon the distribution of Junior Subordinated Notes to the Holders in exchange
for all of the Preferred Securities.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Trust in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee Agreement;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts of Guarantee
Payments are due and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Trust with respect to the Preferred Securities and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, including the Junior Subordinated Notes, except those obligations or
liabilities made pari passu or subordinate by their terms, (ii) pari passu with
the most senior preferred or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred or preference securities of any Affiliate of the
Guarantor, and (iii) senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities, (ii) the distribution of Junior
Subordinated Notes to the Holders in exchange for all of the Preferred
Securities, or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or under this Guarantee Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger, conveyance,
transfer, or lease involving the Guarantor that is permitted under Article Eight
of the Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes
which do not materially and adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Guarantee Agreement may only
be amended with the prior approval of the Holders of more than 50% in
liquidation amount of all the outstanding Preferred Securities. The provisions
of Article Six of the Trust Agreement concerning meetings of Holders shall apply
to the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Trustee and the
Holders:
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Facsimile No.: (212) 708-2000
Attention: Corporate Secretary
with copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: (212) 259-6333
Attention: Jonathan L. Freedman
(b) if given to the Trust, in care of the Trustee, or to the
Trustee at the Trust's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Trust may give notice to the Holders:
MONY Capital Trust II
c/o The Chase Manhattan Bank
[ ]
[ ]
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Attn: [Corporate Trustee Administration Department]
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered in either case solely because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(b) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(c) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(d) a reference to the singular includes the plural and vice
versa; and
(e) references to each of the masculine, feminine and neuter
genders shall be deemed to include references to the other two genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
THE MONY GROUP INC.
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By: ___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: ___________________________________
Name:
Title:
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Exhibit 5.1
DEWEY BALLANTINE LLP
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
January 11, 2000
The MONY Group Inc.
1740 Broadway
New York, New York 10019
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel to The MONY Group Inc. (the
"Company") in connection with the preparation of a Registration Statement on
Form S-3, filed with the Securities and Exchange Commission (the "Commission")
on January 12, 2000 (the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of the issuance of (1)
junior subordinated notes (the "Junior Subordinated Notes") to be issued by the
Company, (2) trust preferred securities (the "Trust Preferred Securities") to be
issued by MONY Capital Trust I and MONY Capital Trust II, (3) the Company's
Guarantees (as defined in the Registration Statement) with respect to such Trust
Preferred Securities, (4) senior notes (the "Senior Notes") to be issued by the
Company, (5) stock purchase contracts (the "Stock Purchase Contract"), to be
issued by the Company, to purchase Common Stock (as defined below) of the
Company, (6) stock purchase units, to be issued by the Company, each
representing ownership of a Stock Purchase Contract and Senior Notes, Junior
Subordinated Notes, Trust Preferred Securities or debt obligations of third
parties, (7) shares of preferred stock, par value $0.01 per share (the
"Preferred Stock"), to be issued by the Company and (8) shares of common stock,
par value $0.01 per share (the "Common Stock"), to be issued by the Company. The
Junior Subordinated Notes will be issued pursuant to the Subordinated Note
Indenture, dated as of January 11, 2000, as supplemented, between the Company
and The Chase Manhattan Bank, as trustee (the "Subordinated Note Indenture"),
the Guarantees will be issued pursuant to separate guarantee agreements between
the Company and the trustee named therein (the "Guarantee Agreements") and the
Senior Notes will be issued pursuant to the Senior Note Indenture, dated as of
January 11, 2000, as supplemented, between the Company and The Chase Manhattan
Bank, as trustee (the "Senior Note Indenture"), in each case substantially in
the respective forms filed as exhibits to the Registration Statement.
<PAGE> 2
The MONY Group Inc.
January 11, 2000
Page 2
We are of the opinion that:
1. Upon compliance with the pertinent provisions of the Act
and the Trust Indenture Act of 1939, as amended, upon compliance with applicable
securities or blue sky laws of various jurisdictions, upon the adoption of
appropriate resolutions by the Board of Directors of the Company or a duly
authorized committee thereof, when the Subordinated Note Indenture, the
Guarantee Agreements and the Senior Note Indenture have been duly executed and
delivered by the proper officers of the Company and the trustees named therein,
when the Junior Subordinated Notes, the Guarantees and the Senior Notes have
been executed, authenticated and delivered in accordance with the terms of the
Subordinated Note Indenture, the Guarantee Agreements and the Senior Note
Indenture, as the case may be, and when the Junior Subordinated Notes, the
Guarantees and the Senior Notes have been duly issued and the consideration
therefor, as contemplated by the applicable underwriting, purchase or similar
agreement, has been received by the Company, the Junior Subordinated Notes, the
Guarantees and the Senior Notes will be valid, binding and legal obligations of
the Company (subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, rehabilitation, moratorium and other similar laws
relating to or affecting creditors' rights generally and to general principles
of equity, whether considered in a proceeding at law or in equity).
2. Upon compliance with the pertinent provisions of the Act,
upon compliance with applicable securities or blue sky laws of various
jurisdictions, upon the adoption of appropriate resolutions by the Board of
Directors of the Company or a duly authorized committee thereof, and when the
Common Stock has been duly issued and the consideration therefor, as
contemplated by the applicable underwriting, purchase or similar agreement, has
been received by the Company, the Common Stock will be validly issued, fully
paid and nonassessable.
3. Upon compliance with the pertinent provisions of the Act,
upon compliance with applicable securities or blue sky laws of various
jurisdictions, upon the adoption of appropriate resolutions by the Board of
Directors of the Company or a duly authorized committee thereof, and when the
Company has filed with the Delaware Secretary of State certificate of
designations with respect to such series of Preferred Stock and such series of
Preferred Stock has been duly issued and the consideration therefor, as
contemplated by the applicable underwriting, purchase or similar agreement, has
been received by the Company, such series of Preferred Stock will be validly
issued, fully paid and nonassessable.
In connection with the opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any such security, (i)
the Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded and (ii) there shall
not have occurred any change in law affecting the validity or enforceability of
such security. We have also assumed that none of the terms of any security to be
established subsequent to the date hereof, nor the issuance and delivery of such
security, nor the compliance by the Company with the terms of such security will
violate any applicable law or will result in a violation of any provision of any
instrument
<PAGE> 3
The MONY Group Inc.
January 11, 2000
Page 3
or agreement then binding upon the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company. We have further
assumed, with respect to the issuance and sale of any shares of Common Stock or
Preferred Stock, that the consideration per share to be received by the Company
in connection therewith will, in all cases, be in cash in an amount in excess of
the par value per share of the Common Stock or Preferred Stock, as the case may
be, to be so issued and sold.
We are members of the State Bar of New York and we do not
express any opinion concerning any law other than the law of the State of New
York and the General Corporation Law of the State of Delaware and judicial
interpretations thereof.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the statements with respect to our firm
under the caption "Legal Matters" in the prospectus forming part of the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
DEWEY BALLANTINE LLP
<PAGE> 1
Exhibit 5.2-A
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
January 11, 2000
MONY Capital Trust I
c/o The MONY Group Inc.
1740 Broadway
New York, New York 10019
Re: MONY Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for The MONY Group
Inc., a Delaware corporation (the "Company"), and MONY Capital Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Trust Agreement of the Trust, dated as of January
10, 2000 (the "Original Trust Agreement"), between
the Company and Chase Manhattan Bank Delaware, a
Delaware banking corporation ("Chase"), as trustee
(the "Delaware Trustee");
(b) A form of Amended and Restated Trust Agreement for
the Trust, among the Company, the Delaware Trustee,
The Chase Manhattan Bank, a New York banking
corporation, as property trustee (the "Property
Trustee"), Kenneth M. Levine and Richard Daddario, as
administrative trustees (the "Administrative
Trustees"), and the holders, from time to time, of
the undivided beneficial ownership interests in the
assets of such Trust (including Exhibits C and E
thereto) (the "Amended and Restated Trust Agreement;"
and, together with the Original Trust Agreement, the
"Trust Agreement");
<PAGE> 2
MONY Capital Trust I
January 11, 2000
Page 2
(d) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary
prospectus with respect to the Trust (the
"Prospectus"), relating to the Trust Securities of
the Trust representing preferred undivided beneficial
ownership interests in the assets of the Trust, filed
by the Company and the Trust with the Securities and
Exchange Commission on January 12, 2000; and
(e) A Certificate of Good Standing for the Trust, dated
January 11, 2000, obtained from the Secretary of
State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
bears upon or is inconsistent with the opinions stated herein. We have conducted
no independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we have
assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the Trust, that the Certificate of Trust
is in full force and effect and has not been amended and that the Trust
Agreement will be in full force and effect and will not be amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trusts (collectively, the
"Preferred Security
<PAGE> 3
MONY Capital Trust I
January 11, 2000
Page 3
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement or Prospectus and
assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12 Del.
C. Section 3801, et seq.
2. The Preferred Securities of the Trust have been duly
authorized by the Trust Agreement and will be duly and validly issued and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the reference to us as local counsel under the
headings "Legal Matters" in the Prospectus. In giving the foregoing consents, we
do not thereby admit that we come within the category of Persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE> 1
Exhibit 5.2-B
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
January 11, 2000
MONY Capital Trust II
c/o The MONY Group Inc.
1740 Broadway
New York, New York 10019
Re: MONY Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for The MONY Group
Inc., a Delaware corporation (the "Company"), and MONY Capital Trust II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Trust Agreement of the Trust, dated as of January
10, 2000 (the "Original Trust Agreement"), between
the Company and Chase Manhattan Bank Delaware, a
Delaware banking corporation ("Chase"), as trustee
(the "Delaware Trustee");
(b) A form of Amended and Restated Trust Agreement for
the Trust, among the Company, the Delaware Trustee,
The Chase Manhattan Bank, a New York banking
corporation, as property trustee (the "Property
Trustee"), Kenneth M. Levine and Richard Daddario, as
administrative trustees (the "Administrative
Trustees"), and the holders, from time to time, of
the undivided beneficial ownership interests in the
assets of such Trust (including Exhibits C and E
thereto) (the "Amended and Restated Trust Agreement;"
and, together with the Original Trust Agreement, the
"Trust Agreement");
<PAGE> 2
MONY Capital Trust II
January 11, 2000
Page 2
(d) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary
prospectus with respect to the Trust (the
"Prospectus"), relating to the Trust Securities of
the Trust representing preferred undivided beneficial
ownership interests in the assets of the Trust, filed
by the Company and the Trust with the Securities and
Exchange Commission on January 12, 2000; and
(e) A Certificate of Good Standing for the Trust, dated
January 11, 2000, obtained from the Secretary of
State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
bears upon or is inconsistent with the opinions stated herein. We have conducted
no independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we have
assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the Trust, that the Certificate of Trust
is in full force and effect and has not been amended and that the Trust
Agreement will be in full force and effect and will not be amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trusts (collectively, the "Preferred
Security
<PAGE> 3
MONY Capital Trust II
January 11, 2000
Page 3
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement or Prospectus and
assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12 Del.
C. Section 3801, et seq.
2. The Preferred Securities of the Trust have been duly
authorized by the Trust Agreement and will be duly and validly issued and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the reference to us as local counsel under the
headings "Legal Matters" in the Prospectus. In giving the foregoing consents, we
do not thereby admit that we come within the category of Persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
DKD/jmb
<PAGE> 1
EXHIBIT 12.1
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
1999 1998 1998 1997 1996 1995 1994
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME BEFORE EXTRAORDINARY CHARGES
AND INCOME TAXES $208.0 $260.6 $294.2 $187.7 $100.5 $61.8 $65.0
FIXED CHARGES:
Interest on debt $14.8 $18.5 $23.4 $18.1 $37.4 $39.0 $37.9
Accretion of discount on debt 10.0 9.0 12.1 10.9 9.7 8.7 3.0
Interest portion of rental expense 7.8 6.9 9.6 8.9 9.1 10.7 12.3
------------------------------------------------------------------------------------------
Total Fixed Charges $32.6 $34.3 $45.0 $37.9 $56.2 $58.4 $53.2
------------------------------------------------------------------------------------------
CAPITALIZED INTEREST - - - - - - -
RATIO OF EARNINGS TO FIXED CHARGES 7.4 8.6 7.5 5.9 2.8 2.1 2.2
==========================================================================================
</TABLE>
CALCULATION OF EARNINGS TO FIXED CHARGES:
(income before extraordinary charges and income taxes) +
(fixed charges) - (capitalized interest)
- --------------------------------------------------------------
(fixed charges)
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our reports dated February 15, 1999, except for
footnote 18(b) to The MONY Group Inc. consolidated financial statements as to
which the date is March 22, 1999, relating to the financial statements and the
financial statement supplemental schedule, which appear in the MONY Group
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
New York, New York
January 12, 2000
<PAGE> 1
Exhibit 25.1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
THE MONY GROUP INC.
(Exact name of obligor as specified in its charter)
DELAWARE 13-3976138
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1740 BROADWAY
NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
--------------------------------------------
SENIOR NOTES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By /s/ Gemmel Richards
-------------------------------------
/s/ Gemmel Richards
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,497
Interest-bearing balances ................................................ 6,388
Securities: ....................................................................
Held to maturity securities..................................................... 798
Available for sale securities................................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ....................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,929
Trading Assets ................................................................. 47,413
Premises and fixed assets (including capitalized
leases)................................................................... 3,287
Other real estate owned ........................................................ 26
Investments in unconsolidated subsidiaries and
associated companies...................................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................................. 716
Intangible assets .............................................................. 2,693
Other assets ................................................................... 15,430
------
TOTAL ASSETS ................................................................... $299,390
========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................................... $100,324
Noninterest-bearing ....................................... $41,601
Interest-bearing .......................................... 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 88,064
Noninterest-bearing ......................................... $ 6,363
Interest-bearing ...................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 35,773
Demand notes issued to the U.S. Treasury ....................................... 892
Trading liabilities ............................................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............................ 4,434
With a remaining maturity of more than one year
through three years................................................ 14
With a remaining maturity of more than three years........................ 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................................. 5,429
Other liabilities .............................................................. 11,457
TOTAL LIABILITIES .............................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves ......................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (951)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
<PAGE> 1
Exhibit 25.2
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
THE MONY GROUP INC.
(Exact name of obligor as specified in its charter)
DELAWARE 13-3976138
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1740 BROADWAY
NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
--------------------------------------------
JUNIOR SUBORDINATED NOTES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By /s/ Gemmel Richards
---------------------------------------
/s/ Gemmel Richards
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,497
Interest-bearing balances ................................................ 6,388
Securities: ...................................................................
Held to maturity securities..................................................... 798
Available for sale securities................................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ................. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,929
Trading Assets ................................................................. 47,413
Premises and fixed assets (including capitalized
leases)................................................................... 3,287
Other real estate owned ........................................................ 26
Investments in unconsolidated subsidiaries and
associated companies...................................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................................. 716
Intangible assets .............................................................. 2,693
Other assets ................................................................... 15,430
------
TOTAL ASSETS ................................................................... $299,390
========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................................... $100,324
Noninterest-bearing ..................................... $41,601
Interest-bearing ........................................ 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 88,064
Noninterest-bearing ......................................... $ 6,363
Interest-bearing ...................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 35,773
Demand notes issued to the U.S. Treasury ....................................... 892
Trading liabilities ............................................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............................ 4,434
With a remaining maturity of more than one year
through three years................................................ 14
With a remaining maturity of more than three years........................ 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................................. 5,429
Other liabilities .............................................................. 11,457
TOTAL LIABILITIES .............................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)........................ 11,016
Undivided profits and capital reserves ......................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (951)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
<PAGE> 1
Exhibit 25.3
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
MONY CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1740 BROADWAY
NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
--------------------------------------------
TRUST PREFERRED SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By /s/ Gemmel Richards
---------------------------------------
/s/ Gemmel Richards
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,497
Interest-bearing balances ................................................ 6,388
Securities: ...................................................................
Held to maturity securities..................................................... 798
Available for sale securities................................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,929
Trading Assets ................................................................. 47,413
Premises and fixed assets (including capitalized
leases)................................................................... 3,287
Other real estate owned ........................................................ 26
Investments in unconsolidated subsidiaries and
associated companies...................................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................................. 716
Intangible assets .............................................................. 2,693
Other assets ................................................................... 15,430
------
TOTAL ASSETS ................................................................... $299,390
========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................................... $100,324
Noninterest-bearing ......................................... $41,601
Interest-bearing ............................................ 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 88,064
Noninterest-bearing ......................................... $ 6,363
Interest-bearing ...................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 35,773
Demand notes issued to the U.S. Treasury ....................................... 892
Trading liabilities ............................................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............................ 4,434
With a remaining maturity of more than one year
through three years................................................ 14
With a remaining maturity of more than three years........................ 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................................. 5,429
Other liabilities .............................................................. 11,457
TOTAL LIABILITIES .............................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....................... 11,016
Undivided profits and capital reserves ......................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (951)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
<PAGE> 1
Exhibit 25.4
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
MONY CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1740 BROADWAY
NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
--------------------------------------------
GUARANTEE OF TRUST PREFERRED SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By /s/ Gemmel Richards
---------------------------------------
/s/ Gemmel Richards
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,497
Interest-bearing balances ................................................ 6,388
Securities: ...................................................................
Held to maturity securities..................................................... 798
Available for sale securities................................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,929
Trading Assets ................................................................. 47,413
Premises and fixed assets (including capitalized
leases)................................................................... 3,287
Other real estate owned ........................................................ 26
Investments in unconsolidated subsidiaries and
associated companies...................................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................................. 716
Intangible assets .............................................................. 2,693
Other assets ................................................................... 15,430
------
TOTAL ASSETS ................................................................... $299,390
========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................................... $100,324
Noninterest-bearing ......................................... $41,601
Interest-bearing ............................................ 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 88,064
Noninterest-bearing ......................................... $ 6,363
Interest-bearing ...................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 35,773
Demand notes issued to the U.S. Treasury ....................................... 892
Trading liabilities ............................................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........... 4,434
With a remaining maturity of more than one year
through three years................................................ 14
With a remaining maturity of more than three years........................ 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................................. 5,429
Other liabilities .............................................................. 11,457
TOTAL LIABILITIES .............................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....................... 11,016
Undivided profits and capital reserves ......................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (951)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
<PAGE> 1
Exhibit 25.5
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
MONY CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1740 BROADWAY
NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
--------------------------------------------
TRUST PREFERRED SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By /s/ Gemmel Richards
---------------------------------------
/s/ Gemmel Richards
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,497
Interest-bearing balances ................................................ 6,388
Securities: ...................................................................
Held to maturity securities..................................................... 798
Available for sale securities................................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,929
Trading Assets ................................................................. 47,413
Premises and fixed assets (including capitalized
leases)................................................................... 3,287
Other real estate owned ........................................................ 26
Investments in unconsolidated subsidiaries and
associated companies...................................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................................. 716
Intangible assets .............................................................. 2,693
Other assets ................................................................... 15,430
------
TOTAL ASSETS ................................................................... $299,390
========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................................... $100,324
Noninterest-bearing ..................................... $41,601
Interest-bearing ........................................ 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 88,064
Noninterest-bearing ........................................ $ 6,363
Interest-bearing ..................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 35,773
Demand notes issued to the U.S. Treasury ....................................... 892
Trading liabilities ............................................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............................ 4,434
With a remaining maturity of more than one year
through three years................................................ 14
With a remaining maturity of more than three years........................ 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................................. 5,429
Other liabilities .............................................................. 11,457
TOTAL LIABILITIES .............................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)........................ 11,016
Undivided profits and capital reserves ......................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (951)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
<PAGE> 1
Exhibit 25.6
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
MONY CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1740 BROADWAY
NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
--------------------------------------------
GUARANTEE OF TRUST PREFERRED SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By /s/ Gemmel Richards
---------------------------------------
/s/ Gemmel Richards
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 13,497
Interest-bearing balances ................................................ 6,388
Securities: ...................................................................
Held to maturity securities..................................................... 798
Available for sale securities................................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,929
Trading Assets ................................................................. 47,413
Premises and fixed assets (including capitalized
leases)................................................................... 3,287
Other real estate owned ........................................................ 26
Investments in unconsolidated subsidiaries and
associated companies...................................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................................. 716
Intangible assets .............................................................. 2,693
Other assets ................................................................... 15,430
------
TOTAL ASSETS ................................................................... $299,390
=========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................................... $100,324
Noninterest-bearing ..................................... $41,601
Interest-bearing ........................................ 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ................................................... 88,064
Noninterest-bearing ........................................ $ 6,363
Interest-bearing ..................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 35,773
Demand notes issued to the U.S. Treasury ....................................... 892
Trading liabilities ............................................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............................ 4,434
With a remaining maturity of more than one year
through three years................................................ 14
With a remaining maturity of more than three years........................ 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................................. 5,429
Other liabilities .............................................................. 11,457
TOTAL LIABILITIES .............................................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....................... 11,016
Undivided profits and capital reserves ......................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (951)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments ............................ 16
TOTAL EQUITY CAPITAL ........................................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
