Exhibit 4.4
Form of Series B Notes
MONY HOLDINGS, LLC
SERIES B FLOATING RATE INSURED NOTES DUE 2017
$______________________
NO._____
MONY Holdings, LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of _______________ Dollars (or such lesser remaining
principal amount as is reflected in the books and records of the Trustee under
the Indenture referred to below), at the times and in the amounts pursuant to
the amortization schedule set forth on the reverse hereof, and to pay interest
thereon from and including _______________ to but excluding the first Scheduled
Payment Date (as defined below), and for each successive period (each an
"Interest Period") from and including the last day of the preceding Interest
Period to but excluding the following Scheduled Payment Date, subject to certain
exceptions set forth in the Indenture at a rate per annum equal to Three-Month
LIBOR per annum plus 0.55%, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Scheduled Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 6, April 6, July 6 or October 6 (whether or
not a Business Day), as the case may be, next preceding such Scheduled Payment
Date. The Scheduled Payment Dates shall be January 21, April 21, July 21 and
October 21, commencing July 21, 2002.
If this Note is issued in the form of a Global Note, all payments of
the principal of, redemption price, if any, interest on and other amounts under
this Note shall be made in immediately available funds to the Depositary. If
this Note is issued as a Restricted Certificated Note, all payments of the
principal of, redemption price, if any, interest on and other amounts under this
Note will be made at the Corporate Trust Office of the Trustee in The City of
New York, New York, maintained for such purpose, and at any other office or
agency maintained by the Company for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by wire transfer or by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Notes Register.
The "Stated Maturity" of this Note will be January 21, 2017.
Installments of principal of this Note will be due and payable, in accordance
with the Indenture referred to on the reverse hereof, in the manner described on
the reverse hereof.
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This Note is one of a duly authorized issue of notes of the Company,
issued and to be issued under an Indenture, dated as of April 30, 2002 (herein,
as supplemented or amended from time to time, called the "Indenture", which term
shall have the meaning assigned to it in such instrument), among the Company,
the Insurer (as defined below), The MONY Group Inc., solely for limited purposes
as set forth therein, and Bank One Trust Company, N.A. (herein called the
"Trustee" which term includes any successor trustee under the Indenture)
designated as its Series B Floating Rate Insured Notes due 2017 (herein called
the "Series B Notes"), limited in aggregate Initial Principal Amount to
$300,000,000. The Company has also authorized the issuance from time to time
under the Indenture of additional series of floating rate and fixed rate insured
notes as provided in the Indenture (collectively, the "Additional Notes" and
together with the Series B Notes, the "Notes").
Reference is xxxxxx made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Insurer, the Trustee and the Holders of the Notes of each series. This Note
is subject to the provisions of the Indenture.
This Note is secured pursuant to the Indenture by the Collateral (as
defined in the Indenture) consisting of certain property and rights equally and
ratably pledged as security for the Notes of each series, as provided in the
Indenture.
Scheduled payments of principal and interest on the Notes are
guaranteed by Ambac Assurance Corporation (the "Insurer") under the Insurance
Policy, dated as of April 30, 2002, issued for the benefit of the Trustee on
behalf of the Holders of the Notes (the "Insurance Policy").
So long as (1) no Insurer Default (as defined in the Indenture) has
occurred and is continuing, the Insurer shall be entitled to exercise all rights
and remedies with respect to the Notes under the Indenture, including the right
to vote on all matters presented to the Holders, the exercise of remedies and
the waiver of breaches and defaults, except for the rights of each of the
Holders of the Notes to approve any changes in the material terms of the Notes
as specified in the Indenture and (2) an Insurer Default occurs and is
continuing, all rights and remedies available to a specific series of Notes
shall be exercised directly by the Holders of such series of Notes, and all
rights and remedies available to Holders as a group under the Indenture shall be
exercised by the Holders, voting as a group.
Under the terms of the Insurance Policy, the Insurer is not obligated
to pay any payments with respect to any Note after the Company has made a
deposit to effect a defeasance of such Note pursuant to the Indenture. Each
Holder by acceptance of this Note covenants and agrees to release the Insurer,
subject to certain limited bankruptcy related exceptions as set forth in the
Insurance Policy, of all of its obligations pursuant to the Insurance Policy
upon the occurrence of such a deposit.
Each Holder by acceptance of this Note covenants and agrees that
recourse with respect to the obligations of the Company on the Notes, the
Indenture, the
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Insurance Agreement or the Registration Rights Agreement or any other agreement,
instrument, certificate or other document delivered in connection therewith
shall be limited first, to the Collateral, and, upon foreclosure on all the
Collateral, liquidation of all the Collateral and application of the moneys so
collected pursuant to the Indenture, second, to the Company as senior, unsecured
indebtedness to the extent of the Fair Market Value of the Closed Block Business
(as defined in the Indenture) as of the date of the commencement of foreclosure
on the Collateral.
Each Holder by acceptance of this Note covenants and agrees that no
recourse may be taken with respect to the Notes, the Indenture, the Insurance
Policy, the Insurance Agreement or the Registration Rights Agreement or any
other agreement, instrument, certificate or other document delivered in
connection therewith, against (i) any member of the Company, any Affiliate,
Subsidiary or controlling person thereof, or (ii) any stockholder, partner,
member, officer or director of any of such parties in their individual
capacities, any holder of a beneficial interest in any of such parties or any
successor or assignee thereof in their individual capacities or against any
beneficial or equity owner of a trust, including MONY Group or MONY Life (the
parties referred to in clauses (i) and (ii) of this paragraph are referred to
collectively as the "Exculpated Parties"). Except as provided above, no suit,
claim or proceeding will be brought against the Exculpated Parties or any of
them for any obligation relating to the Notes, the Indenture, the Insurance
Agreement or the Registration Rights Agreement or any agreement, instrument,
certificate or other document delivered in connection therewith.
Each Holder by acceptance of this Note covenants and agrees, to the
fullest extent permitted by law, that it will not at any time prior to
foreclosure on all of the Collateral, liquidation of all of the Collateral and
application of the moneys so collected pursuant to the Indenture, institute
against the Company, or join in any institution against the Company of, any
bankruptcy, reorganization, arrangement, insolvency, rehabilitation,
conservation or liquidation proceedings, or any other proceedings under any
United States federal or state, or any other bankruptcy, insolvency or similar
law in connection with any obligations relating to the Indenture, the Notes, the
Insurance Agreement or any agreement relating hereto or thereto.
The Company shall treat this Note as debt of MONY Group for United
States federal, state and local tax purposes, and each Holder, by acceptance of
this Note, acknowledges and agrees to such treatment, and covenants to take no
action inconsistent with such treatment unless otherwise notified by the
Company.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. Capitalized terms used and
not otherwise defined herein are defined in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
MONY Holdings, LLC
By__________________________________
This is one of the Notes of the series designated therein referred to
in the within mentioned Indenture.
BANK ONE TRUST COMPANY, N.A., as
Trustee
BY___________________________________
Authorized Officer
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Reverse of Note.
The interest on this Note shall be payable quarterly in arrears
(including interest on any interest that is not paid when due to the extent
permitted by applicable law), at a rate per annum equal to Three-Month LIBOR (as
defined below) plus 0.55%.
"Three-Month LIBOR" means, for each Interest Period, the rate for
deposits in U.S. dollars for a period of three months, commencing on the first
day of such Interest Period and in an amount that is representative for a single
transaction in that market, at that time, that appears on Bloomberg Page BBAM as
of 11:00 a.m., London time, on the LIBOR Determination Date with respect to such
Interest Period. If such rate does not appear on the Bloomberg Page BBAM, then
Three-Month LIBOR for the relevant Interest Period will be determined on the
basis of the rates at which deposits in U.S. dollars are offered by the
Reference Banks at approximately 11:00 a.m., London time, on the LIBOR
Determination Date with respect to such Interest Period to prime banks in the
London interbank market for a period of three months commencing on the first day
of such Interest Period and in an amount that is representative for a single
transaction in that market at that time, assuming an actual/360 day count basis.
The Calculation Agent shall request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that Interest Period will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that Interest Period will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the Calculation Agent,
at approximately 11:00 a.m., New York City time, on the first day of such
Interest Period for loans in U.S. dollars to leading European banks for a period
of three months commencing on the first day of such Interest Period and in an
amount that is representative for a single transaction in that market at that
time. If the Calculation Agent is unable to obtain rate quotations for such
loans, the rate for that LIBOR Determination Date shall be Three-Month LIBOR as
calculated for the immediately preceding quarterly period. Notwithstanding the
foregoing, "Three-Month LIBOR" with respect to the first Interest Period will be
1.92125%.
Three-Month LIBOR will be determined by the Company, as Calculation
Agent, or any successor calculation agent as determined by the Company.
The Company shall repay the principal amount of the Series B Notes in
annual installments, commencing on January 21, 2008 and continuing until the
Stated Maturity. The aggregate amount of principal of the Series B Notes to be
repaid in each year shall be as follows (in millions of dollars):
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Year Principal Amount Year Principal Amount
---------- --------------------- ------------ ----------------------
2002 $ 0 2010 $ 26,666,667
2003 0 2011 26,666,667
2004 0 2012 26,666,667
2005 0 2013 26,666,667
2006 0 2014 26,666,667
2007 0 2015 26,666,667
2008 26,666,667 2016 40,000,000
2009 26,666,667 2017 46,666,664
Each annual scheduled repayment of principal will be made on January
21 of the relevant year, together with the payment of interest due on that date,
to the person whose name this Note is registered on the Regular Record Date
before the payment date. The final annual scheduled repayment of interest will
be made only against surrender of the Note to the Trustee.
The Notes may be redeemed at the election of the Company, in whole or
in part on any Scheduled Payment Date, at the Regular Redemption Price (as
defined below), payable in cash, together with interest and Liquidated Damages
(if any) accrued to but not including the Redemption Date. The Regular
Redemption Price for the Series B Notes, payable in cash, and expressed as a
percentage of the outstanding principal amount of each Note to be redeemed,
shall equal 103.5% of the outstanding principal amount of such Note if redeemed
on or before April 21, 2003. Thereafter, the Regular Redemption Price shall
decline ratably on a straightline basis to 100% by April 21, 2012 of the
outstanding principal amount of each Note to be redeemed and shall remain
constant thereafter.
Notwithstanding the foregoing paragraph, upon the occurrence of a
Regulatory Redemption Event (as defined below), the Notes may be redeemed at the
election of the Company, as a whole or in part, on any Scheduled Payment Date,
at the Regulatory Redemption Event Redemption Price (as defined below), payable
in cash, together with interest and Liquidated Damages (if any) accrued to but
not including the Redemption Date. The Regulatory Redemption Event Redemption
Price for the Series B Notes, payable in cash, and expressed as a percentage of
the outstanding principal amount of each Note to be redeemed, shall equal 100%
of the outstanding principal amount of such Note.
In each case, payment shall be made together with interest and
Liquidated Damages (if any) accrued to but not including the Redemption Date,
but interest installments and Liquidated Damages (if any) for a Scheduled
Payment Date prior to such Redemption Date will be payable to the Holders of
such Series B Notes, or one or more Predecessor Notes, of record at the close of
business on the relevant Regular Record Dates referred to on the face hereof,
all as provided in the Indenture.
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If there occurs (i) a Regulatory Redemption Event or (ii) a change in
New York law or regulation (other than with respect to taxes) after the Closing
Date that materially adversely affects the transferability of the Collateral,
the Company shall provide notice to the Trustee and the Insurer of such event or
change, not more than 15 days following the date on which the law or regulation
giving rise to such event or change is enacted, issued or promulgated. A
Regulatory Redemption Event occurs if there is a change in New York law or
regulation (other than with respect to taxes) that changes the ability of MONY
Life to declare shareholder dividends without regulatory approval in a manner
that materially adversely affects CB Debt Cash Flow. So long as no Insurer
Default has occurred and is continuing, the Insurer will have the right,
exercisable within 60 days following receipt of notice by the Company of any
such change, to require the Company to redeem all of the Notes, at the
Regulatory Redemption Event Redemption Price, payable in cash, together with
interest and Liquidated Damages (if any) accrued to but not including the
Redemption Date, it being agreed that the Redemption Date shall be not later
than 120 days following receipt by the Company of written notice of the
Insurer's exercise of such right.
In the event of a partial redemption, the amount to be redeemed will
be allocated pro rata as determined by the then outstanding principal amount
among all the Notes Outstanding at the Redemption Date. The amount to be
redeemed that is allocated to the Series B Notes will be further allocated pro
rata as determined by the then outstanding principal amount among all of the
Outstanding Series B Notes.
In the event of a Change of Control, the Insurer, so long as no
Insurer Default has occurred and is continuing, will have the right, within 60
days following its receipt of notice of such Change of Control by the Company,
which notice shall be given within 15 days after the later of (i) the effective
date of the Change of Control or (ii) the date on which the Company has
knowledge of the Change of Control, to notify the Company of its exercise of the
right to require the Company to redeem all of the Notes within 60 days following
receipt of such notice from the Insurer. The Series B Notes will in this
circumstance be redeemed at the Regular Redemption Price, payable in cash,
together with interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date.
Further, upon the sale of all or substantially all of the assets of
the Closed Block Business, the Company will be required to redeem, no later than
the effective date of the sale, all of the Notes. The Series B Notes will in
this circumstance be redeemed at the Regular Redemption Price, payable in cash,
together with interest and Liquidated Damages (if any) accrued to but not
including the Redemption Date.
In the event of redemption of this Series B Note in part only, a new
Series B Note or Notes in Initial Principal Amount equal to and in exchange for
the Remaining Principal Amount of the Note not so redeemed and surrendered will
be issued in the name of the Holder hereof upon the cancellation hereof.
The Notes are further subject to Defeasance at the election of the
Company, if the Company deposits with the Trustee funds in trust specifically
pledged as
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security for, and dedicated solely to, the benefit of the Holders of the Notes,
sufficient to pay and discharge the principal and interest on the Notes through
their respective Stated Maturities and Liquidated Damages.
In the event of the funding of a Defeasance, the Insurance Policy
guaranteeing payment of scheduled principal and interest on the Notes shall
terminate as to all future payments but will remain in effect for all amounts
paid prior to such funding date for the applicable fraudulent transfer or
voidable transfer periods following such funding date.
The Indenture permits the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Notes under the Indenture at any time by the Company and the Trustee, with the
consent of the Insurer. For certain material changes to the terms of the Notes,
as specified in the Indenture, the consent of each affected Holder is required.
The Indenture also contains provisions permitting the Holders of not
less than 66 2/3% in outstanding principal amount of the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences (it being understood
that, so long as no Insurer Default has occurred and is continuing, the Insurer
shall have the exclusive right under the Indenture to exercise the rights of
the Holders in determining whether to give any such direction).
Any such consent or waiver shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor (including through an
exchange offer) or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, the Regular Redemption
Price or the Regulatory Redemption Event Redemption Price, as the case may be,
and interest on and Liquidated Damages (if any) accrued to but not including the
Redemption Date in respect of this Note at the times, place and rate, and in the
coin and currency, as prescribed in the Indenture; the enforcement of such
obligation of the Company being subject to a limited recourse provision set
forth in Section 6.06 of the Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Notes
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed by
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same
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aggregate Initial Principal Amount, will be issued to the designated transferee
or transferees.
The Notes are issuable only in fully registered form without coupons
in principal amounts only in denominations of $100,000 and integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of any series are exchangeable for a like
tenor and aggregate Remaining Principal Amount of other Notes of the same series
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
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