EXHIBIT [ ]
[FORM OF] NOTE AGREEMENT (this "Note") made as of
, 199[ ], between XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, a trust company with full banking powers
organized under the laws of the State of New York (the
"Bank") and X.X. XXXXXX INDEX FUNDING COMPANY, LLC, a
Delaware limited liability Company (the "Company").
WHEREAS, the Company has issued and sold certain of its common
limited liability company interests (the "Common Securities") and certain
of its preferred limited liability company interests (the "Preferred
Securities") [having an aggregate initial principal amount of [ ] and
bearing interest at a rate of [ ] per annum on the [ ] amount], and with
such rights, preferences, privileges, limitations and restrictions as are
set forth in a written resolution or resolutions (each, a "Written Action")
dated [ ] by the Managing Members of the Company providing for the issuance
of such series of Preferred Securities and related Common Securities; and
WHEREAS, the Company desires to loan the proceeds of such
issuance and sale of Preferred and Common Securities (the "Related
Securities") to the Bank on the terms and conditions set forth herein,
which terms and conditions shall substantially mirror the Company's
obligations under the Related Securities.
NOW, THEREFORE, in consideration of the loan of such proceeds,
which the Bank hereby acknowledges to be adequate and sufficient, the Bank
executes and delivers this Note for the benefit of the Company.
1. General. (a) This Note is a duly authorized debt security of
the Bank, designated as its [ ]% Note Due [] (the "Stated Maturity") in an
initial principal amount of $[ ].
(b) THE NOTE IS NOT A DEPOSIT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
(c) The Note is non-transferable and shall be registered in the
name of X.X. Xxxxxx Index Funding Company, LLC (the "Company"). The Company
may (to the fullest extent permitted by applicable laws) be treated at all
times, by all persons and for all purposes as the absolute owner of the
Note regardless of any notice of ownership, theft or loss or of any writing
thereon.
2. Payments and Paying Agencies. (a) The amount of principal
payable upon any redemption or at the Stated Maturity of this Note shall be
the aggregate outstanding principal amount payable at such time with
respect to all Related Securities the proceeds of the sale of which were
loaned to the Bank in consideration of this Note, determined in accordance
with the Written Action relating thereto, attached hereto as Annex I.
(b) Interest shall accrue on this Note at a rate of [ ]% and
shall be payable at the dates and times set forth in the Written Action
attached hereto as Annex I, subject to the terms and conditions contained
therein.
(c) Xxxxxx Guaranty hereby promises to pay all amounts referred
to in paragraphs (a) and (b) of this Section 2 when and as the
corresponding amounts are due and payable by the Company to the holders of
Related Securities pursuant to the terms thereof. Principal of the Note
will be payable against surrender of the Note, and interest will be payable
at the corporate trust office of the Bank located at 00 Xxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000.
3. Redemption. The Note matures on , 20 (the "Maturity Date"),
and [will/will not] be subject to redemption prior to maturity. [Describe
redemption provisions, extension of Maturity Date (if any)]
4. The indebtedness evidenced by the Note, including the
principal and interest, is pari passu with all unsecured, unsubordinated
creditors of the Bank.
The holder of this Note by its acceptance hereof agrees to and
shall be bound by the provisions of this paragraph 4.
5. Events of Default. The occurrence of any of the following
events shall constitute an event of default (herein referred to as an
"Event of Default") hereunder with respect to the Note:
(a) default in the payment of any interest on any of the Note as
and when the same shall become due and payable, which continues for a
period of 30 days; or
(b) default in the due and punctual payment of the principal of
any Note as and when the same shall become due and payable; or
(c) default on the part of the Bank in the performance of any
other of the covenants or agreements on its part in the Notes or in
the Fiscal and Paying Agency Agreement, which continues for a period
of 90 days after the date on which written notice, by registered or
certified mail, of such failure requiring the Bank to remedy the same
shall have been received by the Bank from the Company specifying such
failure and requiring the same to be remedied and stating that such is
a "notice of default" hereunder; or
(d) decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency proceedings,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of the Bank or of all or substantially all of its
property, or for the winding-up or liquidation of its affairs, shall
have been entered, and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(e) the Bank shall have consented to the appointment of a
conservator or receiver or liquidator, in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of the Bank or of all or substantially all of its property; or
(f) the Bank shall have filed a petition to take advantage of any
applicable insolvency or reorganization statute or voluntarily
generally suspended payment of its obligations.
In case one or more of the Events of Default specified above
shall have occurred and be continuing with respect to the Note, then and in
each and every such case, unless all the principal of the Note is due and
payable immediately, upon the declaration of the Company the same shall
become and shall be immediately due and payable,
anything in the Note contained to the contrary notwithstanding. In case the
Company shall have proceeded to enforce any right as set forth herein and
such proceedings shall have been discontinued or abandoned for any reason
or shall have been determined adversely to the Company, then and in every
such case the Bank and the Company shall be restored to their respective
several positions and rights hereunder, and all rights, remedies and powers
of the Bank and the Company shall continue as though no such proceeding had
been taken.
The Company shall be entitled to file such proof of claim, claim,
petition or other document as may be necessary or advisable in order to
have the claims of such holder allowed in any insolvency proceedings,
receivership, conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities, liquidation, winding-up or other
similar proceedings of the Bank as a whole or affecting its property.
6. Certain Covenants of the Bank. The Bank hereby agrees that,
for so long as this note shall remain outstanding:
(a) The Bank will maintain an office or agency in the Borough of
Manhattan, The City of New York, where the Note may be presented for
payment and notices and demands to or upon the Bank in respect of the
Note may be served; and
(b) The Bank will not merge or consolidate with or sell or convey
all or substantially all of its assets as an entirety to any other
corporation or association, unless (i) either (A) the Bank shall be
the surviving corporation in the case of a merger or (B) the
surviving, resulting or transferee corporation or association (the
"successor corporation") shall expressly assume the due and punctual
payment of the principal of and interest on the Note, according to its
tenor and the due and punctual performance of all of the covenants and
obligations of the Bank under the Note and (ii) the Bank or such
successor corporation, as the case may be, shall not, immediately
after such merger, consolidation, sale or conveyance, be in default in
the performance of any covenants or obligations of the Bank under the
Note.
Upon any merger, consolidation, sale or conveyance as provided
above, the successor corporation shall succeed to and be substituted for,
and may exercise every right and power of and be subject to all the
obligations of the Bank under the Note with the same effect as if the
successor corporation had been named as the Bank herein and therein and, in
the case of any such sale or conveyance of assets, the Bank shall be
released from its liability as obligor under the Note.
7. Replacement of Note. (a) In case the Note shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Bank
shall execute and the corporate trust office of the Bank shall authenticate
and deliver a new Note in exchange and substitution for the mutilated or
defaced Note, or in lieu and in substitution for the apparently destroyed,
lost or stolen Note. In every such case the Company shall furnish to the
Bank such security or indemnity as may be required by them to indemnify and
defend and to save each of them and any agent of the Bank harmless and, in
every case of destruction, loss or theft evidence to their satisfaction of
the apparent destruction, loss or theft of such Note and of the ownership
thereof. Upon the issuance of any substitute Note, the Bank may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith.
8. Modifications and Amendments; Waiver. Modifications and
amendments to these Terms and Conditions may be made, to: (1) evidence
succession of another corporation or association to the Bank and the
assumption by such a party of the obligations of the Bank under the Note in
the event in the event of a merger, consolidation or sale of assets in
accordance with the terms hereof; (2) add further covenants, restrictions
or conditions for the protection of holders of the Note; or (3) cure
ambiguities or correct the Note in case of defects or inconsistencies in
the provisions thereof or supplement the Note with other provisions, so
long as any such cure, correction or supplement does not adversely affect
the interest of the holder of the Note in any material respect. In no event
may the Bank, without the consent of the Company, extend the final maturity
of the Note, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or make the principal
thereof or interest thereon payable in any coin or currency other than that
provided in the Note. Any modifications or amendments to
these Terms and Conditions as provided in clauses (1), (2) or (3) above
will be conclusive and binding on the holder of the Note, whether or not
its has given consent. Notwithstanding anything set forth herein to the
contrary, any of the acts which the Bank is required to do or is prohibited
from doing, as set forth herein, may be omitted or done by the Bank, if
there is obtained the prior written consent thereto of the holder of the
Note.
No provision of this Note shall alter or impair the obligation of
the Bank, which is absolute and unconditional, to pay the principal of and
interest on this Note at the places, at the respective times, at the rate
and in the coin or currency herein prescribed.
9. Non-business Days; Calculation of Interest. (a) In any case
where the date of maturity of the principal of or payment of interest on
the Note shall be, in the Borough of Manhattan, The City of New York, a
Saturday, a Sunday, a legal holiday or a day on which banking institutions
are authorized or obligated by law to close, then payment of principal or
interest on the Note need not be made on such date at such place but may be
made on the next succeeding day which is not in the Borough of Manhattan,
The City of New York, a Saturday, a Sunday, a legal holiday or a day on
which banking institutions are authorized or obligated by law to close,
with the same force and effect as if made on the date of maturity of the
principal of, or any applicable interest Payment Date with respect to, the
Note, and no interest shall accrue for the period after such date.
(b) interest shall be calculated on the basis of 360-day year of
twelve 30-day months.
10. Governing Law. This Note shall be construed in accordance
with and governed by the laws of the State of New York.
11. Descriptive Headings. The descriptive headings appearing in
these Terms and Conditions are for the convenience of reference only and
shall not alter, limit or define the provisions hereof.
IN WITNESS WHEREOF, this Note Agreement is executed and delivered
as of the date first above written.
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
by:
--------------------------------
Name:
Title:
