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EXHIBIT 10.28
FISCAL AGENCY AGREEMENT
between
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK,
Issuer
and
THE CHASE MANHATTAN BANK, N.A.,
Fiscal Agent
Dated as of August 15, 1994
11 1/4% Surplus Notes scheduled to mature on August 15, 2024
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TABLE OF CONTENTS
Page
1. The Securities...........................................................1
(a) General............................................................1
(b) Forms of Securities................................................1
(c) Book-Entry Provisions..............................................2
(d) Denominations......................................................3
2. Fiscal Agent; Other Agents...............................................3
3. Authentication...........................................................4
4. Payment and Cancellation.................................................5
(a) Payment............................................................5
(b) Cancellation.......................................................6
5. Global Securities........................................................6
6. Registration, Transfer and
Exchange of Securities................................................7
(a) General............................................................7
(b) Transfer of Global Securities and
Interests Therein...............................................8
(c) Transfers of Restricted Definitive
Securities......................................................9
(d) Successive Registrations...........................................9
(e) Information........................................................9
(f) Suspension.........................................................9
(g) Legends............................................................9
(h) Repurchase........................................................10
(i) Redemption........................................................10
7. Delivery of Certain Information.........................................10
(a) Rule 144A Information.............................................10
(b) Periodic Reports..................................................11
8. Conditions of Fiscal Agent's Obligations................................11
(a) Compensation and Indemnity........................................11
(b) Agency............................................................11
(c) Advice of Counsel.................................................12
(d) Reliance..........................................................12
(e) Interest in Securities, etc.......................................12
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Page
(f) Non-Liability for Interest........................................12
(g) Certifications....................................................12
(h) No Implied Obligations............................................12
9. Resignation and Appointment of Successor................................13
(a) Fiscal Agent and Paying Agent.....................................13
(b) Resignation and Removal...........................................13
(c) Successors........................................................13
(d) Acknowledgement...................................................14
(e) Merger, Consolidation, etc. ......................................14
10. Meetings and Amendments.................................................14
(a) Calling of Meeting, Notice and Quorum.............................14
(b) Approval..........................................................15
(c) Binding Nature of Amendments,
Notices, Notations, etc........................................17
(d) "Outstanding" Defined.............................................18
11. Governing Law...........................................................18
12. Notices.................................................................18
13. Separability............................................................19
14. Headings................................................................19
15. Counterparts............................................................19
EXHIBIT A FORM OF DEFINITIVE SECURITY........................................A-1
EXHIBIT B FORM OF GLOBAL SECURITY............................................B-1
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR EXCHANGE
OR TRANSFER OF RESTRICTED DEFINITIVE SECURITY...........................C-1
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FISCAL AGENCY AGREEMENT, dated as of August 15, 1994, between THE
MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a mutual life insurance corporation
organized under the laws of the State of New York (the "Issuer"), having its
principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and THE CHASE MANHATTAN
BANK, N.A., a national banking association organized under the laws of the
United States of America, as Fiscal Agent (together with any successor as Fiscal
Agent hereunder, the "Fiscal Agent"). The Exhibits attached hereto shall be
deemed to be a part of this Agreement.
1 The Securities.
(a) General. This Agreement is made in respect of $125,000,000
aggregate principal amount of 11 1/4% Surplus Notes of the Issuer, scheduled to
mature on August 15, 2024 (the "Notes" or the "Securities"). Claims based upon
the Securities will rank below all Indebtedness, Policy Claims and Other
Creditor Claims (each as hereinafter defined), in accordance with Section 7435
of the New York Insurance Law (together with any successor provision, and as may
be hereafter amended from time to time, "Section 7435"). The payment by the
Issuer of principal and interest on the Securities shall be conditioned upon the
payment restrictions set forth in paragraphs 4 and 10 of the Securities (the
"Payment Restrictions"). The Notes are scheduled to mature on August 15, 2024
(the "Final Scheduled Maturity Date"). Any reference herein to the term
"principal" or the principal amount of the Notes shall include the amount of
premium, if any, payable upon redemption thereof in accordance with paragraph 15
thereof. Any reference herein to the term "Scheduled Maturity Date" or other
date for the payment of principal of the Notes shall include (i) the Final
Scheduled Maturity Date, (ii) the date, if any, fixed for redemption in
accordance with paragraph 15 thereof and (iii) the date upon which any state or
federal agency obtains an order or grants approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer.
(b) Forms of Securities. The Securities are being offered and sold
by the Issuer pursuant to a Purchase Agreement, dated August 8, 1994 (the
"Purchase Agreement") , between the Issuer and the Initial Purchasers named
therein (the "Initial Purchasers").
(i) Securities (other than global Securities, as hereinafter
defined) offered and sold pursuant to the Purchase Agreement to "accredited
investors", within the meaning of Rule 501(a) of the Securities Act of 1933, as
amended (the "Act") , shall be issued in definitive, fully registered form
without interest coupons, substantially in the form of Security attached as
Exhibit A hereto, with such applicable legends as are provided for in Exhibit A
("definitive Securities"). Upon transfer of any definitive Security,
registration of such transfer shall be effected in accordance with Section 6
hereof.
(ii) Securities offered and sold in reliance on Rule 144A ("Rule
144A") under the Act pursuant to the Purchase Agreement shall be issued in the
form of
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global Securities (the "Restricted Global Securities") in definitive, fully
registered form without interest coupons, substantially in the form of Security
attached as Exhibit B hereto, with such applicable legends as are provided for
in Exhibit B. Each such global Security shall be registered in the name of a
nominee of The Depository Trust Company (the "Depositary") and deposited with
the Fiscal Agent, at its New York office, as custodian for the Depositary, duly
executed by the Issuer and authenticated by the Fiscal Agent as hereinafter
provided. The aggregate principal amount of each Restricted Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Fiscal Agent, as custodian for the Depositary, as hereinafter provided.
All Securities shall be issued substantially in the form of Security
attached hereto as either Exhibit A or B and shall be executed manually or in
facsimile on behalf of the Issuer by any two of its Chairman of the Board,
President, Chief Financial Officer, Executive Vice Presidents, Senior Vice
Presidents or Secretary (the "Authorized Officers"), notwithstanding that such
officers, or any of them, shall have ceased, for any reason, to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of any such Security. The Securities (i) may also
have such additional provisions, omissions, variations or substitutions as are
not inconsistent with the provisions of this Agreement, and (ii) may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with this Agreement,
any law or with any rules made pursuant thereto or with the rules of any
securities exchange, insurance regulatory or other governmental agency or
depositary therefor or as may, consistently herewith, be determined by the
Authorized Officers executing such Securities, in each case (i) and (ii) as
conclusively evidenced by their execution of such Securities. All Securities
shall be otherwise substantially identical except as to maturity, interest rate,
denomination and as otherwise provided herein.
(c) Book-Entry Provisions. This Section 1(c) shall apply to all
Securities evidencing all or part of the Securities that are registered in the
name of the Depositary or a nominee thereof ("global Securities").
The Issuer shall execute and the Fiscal Agent shall, in accordance
with this Section 1(c), authenticate and deliver one or more global Securities
as required to be issued pursuant to Section 1(b) hereof, which (A) shall be
registered in the name of the Depositary or its nominee, (B) shall be delivered
by the Fiscal Agent to the Depositary or pursuant to the Depositary's
instructions and (C) shall bear legends substantially to the following effect:
"Unless this Security is presented by an authorized representative
of [insert name of Depositary] to the Issuer or its agent for
registration of transfer, exchange or payment, and any Security
issued in exchange for this Security or any portion hereof is
registered in the name of [insert name of nominee of Depositary] or
in such other name as is requested by an authorized representative
of [insert name of Depositary] (and any
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payment is made to [insert name of nominee of Depositary] or to such
other entity as is requested by an authorized representative of
[insert name of Depositary]), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN [insert
name of Depositary] OR A NOMINEE THEREOF IS WRONGFUL inasmuch as the
registered owner hereof, [insert name of nominee of Depositary], has
an interest herein."
"This Security is a global Security within the meaning of the Fiscal
Agency Agreement referred to hereinafter. This global Security may
not be exchanged, in whole or in part, for a Security registered in
the name of any person other than [insert name of Depositary] or a
nominee thereof, except in the limited circumstances set forth in
Section 5 of the Fiscal Agency Agreement, and may not be
transferred, in whole or in part, except in accordance with the
restrictions set forth in Section 6(b) of the Fiscal Agency
Agreement. Beneficial interests in this global Security may not be
transferred except in accordance with Section 6(b) of the Fiscal
Agency Agreement."
Neither any members of, or participants in, the Depositary ("Agent
Members") nor any other persons on whose behalf Agent Members may act shall have
any rights under this Fiscal Agency Agreement with respect to any global
Security registered in the name of the Depositary or any nominee thereof, or
under any such global Security, and the Depositary or such nominee, as the case
may be, may be treated by the Issuer, the Fiscal Agent and any agent of the
Issuer or the Fiscal Agent as the absolute owner and holder of such global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or
the Fiscal Agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be,
or impair, as between the Depositary, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary practices of
such persons governing the exercise of the rights of a holder of any Security.
(d) Denominations. The Securities and beneficial interests in
global Securities shall be issuable in minimum denominations of $250,000 or, in
the case of Securities offered and sold to Accredited Investors, or subsequently
transferred in reliance on Regulation S or to Accredited Investors, $500,000,
and, in each case, any amount in excess thereof that is an integral multiple of
$1,000.
2. Fiscal Agent; Other Agents.
The Issuer hereby appoints The Chase Manhattan Bank, N.A., acting
through its corporate trust office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ and payment office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇,
Institutional Trust Window, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (for payments, exchanges
and transfers) in the
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Borough of Manhattan, The City of New York (together, the "Corporate Trust
Office"), as fiscal agent of the Issuer in respect of the Securities upon the
terms and subject to the conditions herein set forth, and The Chase Manhattan
Bank, N.A. hereby accepts such appointment. The Chase Manhattan Bank, N.A., and
any successor or successors as such fiscal agent qualified and appointed in
accordance with Section 9 hereof, are herein called the "Fiscal Agent". The
Fiscal Agent shall have the powers and authority granted to and conferred upon
it in the Securities and hereby and such further powers and authority to act on
behalf of the Issuer as may be mutually agreed upon by the Issuer and the Fiscal
Agent. The Fiscal Agent shall keep a copy of this Agreement available for
inspection during normal business hours at its Corporate Trust Office. The
Fiscal Agent or any Paying Agent (as defined below) shall also act as Transfer
Agent (as defined below). All of the terms and provisions with respect to such
powers and authority contained in the Securities are subject to and governed by
the terms and provisions hereof.
The Issuer may, at its discretion, appoint one or more agents (a
"Paying Agent" or "Paying Agents") for the payment, to the extent permitted
under the Payment Restrictions, of the principal of and any interest on the
Securities, and one or more agents (a "Transfer Agent" or "Transfer Agents") for
the transfer and exchange of Securities, at such place or places as the Issuer
may determine; provided, however, that the Issuer shall at all times maintain a
Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New
York (which Paying Agent and Transfer Agent may be the Fiscal Agent). The Issuer
hereby initially appoints the Fiscal Agent at its Corporate Trust Office as
principal Paying Agent, Transfer Agent, authenticating agent and securities
registrar, and the Fiscal Agent hereby accepts such appointment. Each Transfer
Agent shall act as a security registrar and there shall be kept at the office of
each Transfer Agent a register in which, subject to such reasonable regulations
as the Issuer may prescribe, the Issuer shall provide for the registration of
Securities and the registration of transfers of Securities. The Issuer shall
promptly notify the Fiscal Agent of the name and address of any other Paying
Agent or Transfer Agent appointed by it and will notify the Fiscal Agent of the
resignation or termination of any such Paying Agent or Transfer Agent. Subject
to the provisions of Section 9(c) hereof, the Issuer may vary or terminate the
appointment of any such Paying Agent or Transfer Agent at any time and from time
to time upon giving not less than 90 days' notice to such Paying Agent or
Transfer Agent, as the case may be, and to the Fiscal Agent. The Issuer shall
cause notice of any resignation, termination or appointment of the Fiscal Agent
or any Paying Agent or Transfer Agent and of any change in the office through
which any such Agent will act to be provided to holders of Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly
executed on behalf of the Issuer for the purposes of the original issuance of
Securities, (i) to authenticate said Securities in an aggregate principal amount
not in excess of $125,000,000, and to deliver said Securities in accordance with
the written order or orders of the Issuer signed on its behalf by an Authorized
Officer and (ii) thereafter to
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authenticate and deliver Securities in accordance with the provisions therein
and hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint by an
instrument or instruments in writing one or more agents (which may include
itself) for the authentication of the Securities and, with such consent, vary or
terminate any such appointment upon written notice and approve any change in the
office through which any authenticating agent acts. The Issuer (by written
notice to the Fiscal Agent and the authenticating agent whose appointment is to
be terminated) may also terminate any such appointment at any time. The Fiscal
Agent hereby agrees to solicit written acceptances from the entities concerned
(in form and substance satisfactory to the Issuer) of such appointments. In its
acceptance of such appointment, each such authenticating agent shall agree to
act as an authenticating agent pursuant to the terms and conditions of this
Agreement.
4. Payment and Cancellation.
(a) Payment. For so long as the Fiscal Agent is acting as a Paying
Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide
to the Fiscal Agent, in immediately available funds on or prior to 10:00 a.m.,
New York time, on each date on which a payment of principal of or any interest
on the Securities shall be scheduled, as set forth in the text of the
Securities, such amount, in U.S. dollars, as is necessary to make such payment,
and the Issuer hereby authorizes and directs the Fiscal Agent from funds so
provided to it to make or cause to be made payment of the principal of and any
interest, as the case may be, on the Securities in the manner, at the times and
for the purposes set forth herein and in the text of said Securities; provided
that (1) any permitted payment of interest on the Securities may be made by
check mailed to the persons (the "registered owners") in whose names such
Securities are registered on the register maintained pursuant to Section 6
hereof at the close of business on the record dates designated in the text of
the Securities and (2) the Issuer will not provide any such funds to the Fiscal
Agent prior to such time as the relevant payment of principal or interest is
approved by the Superintendent of Insurance of the State of New York (the
"Superintendent"). Permitted payments of principal of or any interest on the
Securities may be made, in the case of a registered owner of at least $5,000,000
aggregate principal amount of Securities, by wire transfer to an account
maintained by the payee with a bank if such registered owner so elects by giving
notice to the Fiscal Agent, not less than 15 days (or such fewer days as the
Fiscal Agent may accept at its discretion) prior to the date on which such
payments are scheduled to be made, of such election and of the account to which
payment is to be made. Unless such designation is revoked, any such designation
made by such holder with respect to such Securities shall remain in effect with
respect to any future payments with respect to such Securities payable to such
holder. The Issuer shall pay any reasonable administrative costs in connection
with making any such payments. The Fiscal Agent shall arrange directly with any
other Paying Agent who may have been appointed by the Issuer pursuant to the
provisions of Section 2 hereof for the payment, subject to the Payment
Restrictions, from funds so paid by the Issuer of the
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principal of and any interest on the Securities in the manner, at the times and
for the purposes set forth herein and in the text of said Securities.
Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent
funds for the payment, subject to the Payment Restrictions, of the principal
thereof and interest payable thereon under an agreement with respect to such
funds containing substantially the same terms and conditions set forth in this
Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no
responsibility with respect to any funds so provided by the Issuer to any such
Paying Agent.
Payments of principal of and interest on the securities shall be
made in the manner set forth in the Securities, including the Payment
Restrictions set forth therein.
(b) Cancellation. All Securities delivered to the Fiscal Agent (or
any other Agent appointed by the Issuer pursuant to Section 2 hereof) for
payment, redemption or registration of transfer or exchange as provided herein
or in the Securities shall be marked "cancelled" and, in the case of any other
such Agent, forwarded to the Fiscal Agent. All such Securities shall be
destroyed by the Fiscal Agent or such other person as may be jointly designated
by the Issuer and the Fiscal Agent, which shall thereupon furnish certificates
of such destruction to the Issuer.
5. Global Securities.
(a) Notwithstanding any other provisions of this Agreement or the
Securities, a global Security shall not be exchanged in whole or in part for a
Security registered in the name of any person other than the Depositary or one
or more nominees thereof, provided that a global Security may also be exchanged
for Securities registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has notified the Issuer that it
is unwilling or unable to continue as Depositary for such global Security or
such Depositary has ceased to be a "clearing agency" registered under the
Securities Exchange Act of 1934 (as may be hereafter amended from time to time,
the "Exchange Act"), (ii) an event described in paragraph 16(a) or the first
sentence of paragraph 16(b) of the Securities has occurred and is continuing
with respect to the Securities, (iii) a request for certificates has been made
upon 60 days' prior written notice given to the Fiscal Agent in accordance with
the Depositary's customary procedures and a copy of such notice has been
received by the Issuer from the Fiscal Agent, or (iv) the holder of an interest
(other than the initial purchaser thereof) in such global Security has notified
the Fiscal Agent and registrar in writing that it is transferring such
beneficial interest to an Accredited Investor who is not a "qualified
institutional buyer" within the meaning of Rule 144A, who is required to hold
its beneficial interest in the Securities in the form of a definitive Security.
Any global Security exchanged pursuant to clause (i) above shall be so exchanged
in whole and not in part and any global Security exchanged pursuant to clause
(ii), (iii) or (iv) above may be exchanged in whole or from time to time in part
as directed by the Depositary. Any Security issued in exchange for a global
Security or any portion thereof shall be a global Security, unless such Security
is registered in the name of a person other than the Depositary or a nominee
thereof.
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(b) Securities issued in exchange for a global Security or any
portion thereof shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that of such
global Security or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any global
Security to be exchanged in whole shall be surrendered by the Depositary to the
Transfer Agent located in the Borough of Manhattan, The City of New York, to be
so exchanged. With regard to any global Security to be exchanged in part, either
such global Security shall be so surrendered for exchange or, if the Fiscal
Agent is acting as custodian for the Depositary or its nominee with respect to
such global Security, the principal amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Fiscal Agent. Upon any such
surrender or adjustment, the Fiscal Agent shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof. Any Security delivered in exchange for the
Restricted Global Security or any portion thereof shall, except as otherwise
provided by Section 6(g), bear the legend regarding transfer restrictions
applicable to the Restricted Global Security set forth on the form of Security
attached as Exhibit B hereto.
(c) Subject to the provisions of Section 1(c) above, the
registered holder may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action which a holder is entitled to take under this Fiscal
Agency Agreement or the Securities.
(d) In the event of the occurrence of any of the events specified
in paragraph (a) of this Section 5, the Issuer will promptly make available to
the Fiscal Agent a reasonable supply of certificated Securities in definitive,
fully registered form without interest coupons.
6. Registration, Transfer and Exchange of Securities.
(a) General. The Fiscal Agent, as agent of the Issuer for this
purpose, shall maintain at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, a register of Securities for the registration
of Securities and the transfers and exchanges thereof. Subject to the provisions
of this Section 6, upon presentation for transfer or exchange of any Security at
the office of any Transfer Agent accompanied by a written instrument of transfer
or exchange in the form approved by the Issuer (it being understood that, until
notice to the contrary is given to holders of Securities, the Issuer shall be
deemed to have approved the form of instrument of transfer or exchange, if any,
printed on any Security), executed by the registered holder, in person or by
such holder's attorney thereunto duly authorized in writing, such Security shall
be transferred upon the
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register for the Securities, and a new Security shall be authenticated and
issued in the name of the transferee.
(b) Transfer of Global Securities and Interests Therein. A global
Security may not be transferred, in whole or in part, to any person other than
the Depositary or a nominee thereof, and no such transfer to any such other
person may be registered; provided that this Section 6(b) shall not prohibit any
transfer of a Security that is issued in exchange for a global Security but is
not itself a global Security. No transfer of a Security to any person shall be
effective under this Agreement or the Securities unless and until such Security
has been registered in the name of such person.
(c) Transfers of Restricted Definitive Securities. If a holder of
definitive, certificated Securities that bear or are required to bear the
legends set forth in the form of Security attached as Exhibit A hereto
("Restricted Definitive Securities") wishes at any time to transfer such
Restricted Definitive Securities or to exchange such Restricted Definitive
Securities, such transfer or exchange may be effected only in accordance with
the provisions of this Section 6(c). Upon the receipt by the Fiscal Agent, as
Transfer Agent, at its office in The City of New York of (i) a Restricted
Definitive Security accompanied by a written and executed instrument of transfer
or exchange as provided in Section 6(a) and (ii) the following additional
information and documents, as applicable:
(1) if such Restricted Definitive Security is owned by the holder
thereof and is being exchanged, without transfer, or if such Restricted
Definitive Security is being transferred pursuant to an exemption from
registration in accordance with Rule 144A, Rule 144 or Regulation S under
the Act, a certification from such holder to that effect, substantially in
the form of Exhibit C hereto; or
(2) if the Restricted Definitive Security being transferred or
exchanged contains a restrictive legend, certification to the effect that
such transfer or exchange is in accordance with the restrictions contained
in such legend, substantially in the form of Exhibit C hereto, if required
by the Fiscal Agent,
the Fiscal Agent shall register the transfer of such Restricted Definitive
Security or exchange such Restricted Definitive Security for an equal principal
amount of Restricted Definitive Securities of other authorized denominations.
To permit registrations of transfers and exchanges, the Issuer shall
execute and the Fiscal Agent (or an authenticating agent appointed pursuant to
Section 2) shall authenticate and deliver definitive Securities at the Fiscal
Agent's or any Transfer Agent's request. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any transfer tax or other governmental charge payable in
connection with any registration of transfer or exchange.
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All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer, subject to the
Payment Restrictions, evidencing the same debt, and the applicable provisions of
this Fiscal Agency Agreement shall apply equally thereto, as the Securities
surrendered upon such registration of transfer or exchange.
(d) Successive Registrations. Successive registrations and
registrations of transfers and exchanges as aforesaid may be made from time to
time as desired, and each such registration shall be noted on the Security
register. No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Fiscal Agent may require payment of a sum
sufficient to cover any transfer tax or other governmental charge payable in
connection therewith and any other amounts required to be paid by the provisions
of the Securities.
(e) Information. Any Transfer Agent appointed pursuant to Section
2 hereof shall provide to the Fiscal Agent such information as the Fiscal Agent
may reasonably require in connection with the delivery by such Transfer Agent of
Securities upon transfer or exchange of Securities.
(f) Suspension. No Transfer Agent shall be required to make
registrations of transfer or exchange of Securities during any periods
designated in the text of the Securities as periods during which such
registration of transfer and exchanges need not be made.
(g) Legends. If Securities are issued upon the transfer, exchange
or replacement of Securities not bearing the legends required, as applicable, by
the form of Security attached as Exhibit A or Exhibit B hereto (collectively,
the "Legend"), the Securities so issued shall not bear the Legend. If Securities
are issued upon the transfer, exchange or replacement of Securities bearing the
Legend, or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Issuer such satisfactory
evidence, which may include an opinion of independent counsel licensed to
practice law in the State of New York, as may be reasonably required by the
Issuer that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A, Rule 144 or Regulation S under the Act or that such Securities are
not "restricted securities" within the meaning of Rule 144 under the Act. Upon
provision of such satisfactory evidence, the Fiscal Agent, at the direction of
the Issuer, shall authenticate and deliver a Security that does not bear the
Legend. The Issuer agrees to indemnify the Fiscal Agent for, and to hold it
harmless against, any loss, liability or expense, including the fees and
expenses of counsel, reasonably incurred, arising out of or in connection with
actions taken or omitted by the Fiscal Agent in reliance upon such legal opinion
and the delivery of a Security that does not bear a Legend.
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(h) Repurchase. With the prior approval of the Superintendent, the
Issuer and any person that constitutes an affiliate of the Issuer within the
meaning of the Act may at any time purchase Securities in the open market or
otherwise at any price, for its own account or the account of others. Any
Security so purchased by the Issuer or any such affiliate for its own account
shall be promptly surrendered to the Fiscal Agent for cancellation and shall not
thereafter be re-issued or resold.
(i) Redemption. Subject to the Payment Restrictions and the prior
approval of the Superintendent, up to $31,250,000 in aggregate principal amount
of the Securities may be redeemed at the option of the Issuer, in each
twelve-month period commencing August 15, 2021, in accordance with and subject
to the provisions of paragraph 15 of the Securities, at any time upon not more
than 60 days' nor less than 30 days' notice, at the Redemption Prices and in the
amounts provided in paragraph 15 of the Securities. Not less than 60 days
(unless shorter notice is acceptable to the Fiscal Agent) before the date
designated for any such redemption, the Issuer shall give notice to the Fiscal
Agent of its election to redeem the Securities on the date specified in such
notice, specifying the aggregate principal amount of Securities to be redeemed
on such date. The Fiscal Agent shall cause notice of such redemption to be given
in the name of and at the expense of the Issuer in the manner provided in such
Securities. If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected, subject to the restrictions set
forth in Section 1(d) hereof, not less than 30 days prior to the date such
Securities are to be redeemed by the Fiscal Agent from the Outstanding
Securities not previously called for redemption, by such method as the Fiscal
Agent shall deem fair and appropriate, which may provide for the selection for
redemption of portions (equal to $1,000 or any integral multiple thereof) of the
principal amount of the Securities of a denomination larger than $250,000. Upon
any partial redemption, subject to the restrictions set forth in Section 1(d)
hereof, the Issuer will issue and the Fiscal Agent shall authenticate and
deliver in exchange therefor one or more Securities, of any authorized
denomination as requested by the holder, in aggregate principal amount equal to
the unredeemed portion of the principal of such Security. The Securities may not
be redeemed at the option of a holder of such Securities.
7. Delivery of Certain Information.
(a) Rule 144A Information. At any time when the Issuer is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request of a holder
of a Security or beneficial interest in a global Security, the Issuer shall
promptly furnish or cause to be furnished "Rule 144A Information" (as defined
below) to such holder, or to a prospective purchaser of such Security or
interest designated by such holder, in order to permit compliance by such holder
with Rule 144A under the Act in connection with the resale of such Security by
such holder. "Rule 144A Information" shall be such information as is specified
pursuant to paragraph (d)(4) of Rule 144A (or any successor provision thereto) ,
as such provisions (or successor provision) may be amended from time to time.
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(b) Periodic Reports. The Issuer shall deliver (or shall cause the
Fiscal Agent to deliver) to each holder of a Security, promptly after such items
are available, one copy of each annual report to policyholders of the Issuer. In
addition, upon the written request of a holder of a Security or beneficial
interest in a global Security, the Issuer shall promptly furnish or cause to be
furnished to such holder one copy of the annual and quarterly statutory-basis
financial statements of the Issuer as filed by the Issuer with the New York
Department of Insurance.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the Issuer
agrees and all of which are applicable to the Securities and the holders from
time to time thereof:
(a) Compensation and Indemnity. The Fiscal Agent shall be entitled
to reasonable compensation as agreed with the Issuer for all services rendered
by it, and the Issuer agrees promptly to pay such compensation and to reimburse
the Fiscal Agent for the reasonable out-of-pocket expenses (including reasonable
counsel fees and expenses) incurred by it in connection with or arising out of
its services hereunder, or the issuance of the Securities and their offering and
sale. The Issuer also agrees to indemnify the Fiscal Agent for, and to hold it
harmless against, any loss, damage, claim, liability or expense, incurred
without negligence or bad faith, arising out of or in connection with its acting
as Fiscal Agent hereunder, as well as the reasonable costs and expenses of
defending against any claim of liability in the premises. The obligations of the
Issuer under this Section 8(a) shall survive payment of all the Securities or
the resignation or removal of the Fiscal Agent.
(b) Agency. In acting under this Agreement and in connection with
the Securities, the Fiscal Agent is acting solely as agent of the Issuer and
does not assume any responsibility for the correctness of the recitals in the
Securities (except for the correctness of the statement in its certificate of
authentication thereon) or any obligation or relationship of agency or trust,
for or with any of the owners or holders of the Securities, except that all
funds held by the Fiscal Agent for the payment of principal of and any interest
on the Securities, to the extent permitted under the Payment Restrictions, shall
be held in trust for such owners or holders, as the case may be, as set forth
herein and in the Securities; provided, however, that monies held in respect of
the Securities remaining unclaimed at the end of two years after such principal
and such interest shall have become payable in accordance with the Payment
Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies
sufficient therefor shall have been duly made available for payment shall,
together with any interest made available for payment thereon, be repaid to the
Issuer. Upon such repayment, the aforesaid trust with respect to the Securities
shall terminate and all liability of the Fiscal Agent and Paying Agents with
respect to such funds shall thereupon cease.
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(c) Advice of Counsel. The Fiscal Agent and any Paying Agent or
Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may consult
with their respective counsel or other independent counsel satisfactory to them,
and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by them hereunder in good
faith and without negligence and in accordance with such opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or Transfer
Agent appointed by the Issuer pursuant to Section 2 hereof each shall be
protected and shall incur no liability for or in respect of any action taken or
thing suffered by it in reliance upon any Security, notice, direction, consent,
certificate, affidavit, statement, or other paper or document believed by it, in
good faith and without negligence, to be genuine and to have been passed upon or
signed by the proper parties.
(e) Interest in Securities, etc. The Fiscal Agent, any Paying
Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof and
their respective officers, directors and employees may become the owners of, or
acquire any interest in, any Securities, with the same rights that they would
have if they were not the Fiscal Agent, such other Paying Agent or Transfer
Agent or such person, and may engage or be interested in any financial or other
transaction with the Issuer, and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Securities or other obligations of the
Issuer, as freely as if they were not the Fiscal Agent, such other Paying Agent
or Transfer Agent or such person.
(f) Non-Liability for Interest. Subject to any agreement between
the Issuer and the Fiscal Agent to the contrary, absent bad faith or negligence,
the Fiscal Agent shall not be under any liability for interest on monies at any
time received by it pursuant to any of the provisions of this Agreement or the
Securities.
(g) Certifications. Whenever in the administration of this
Agreement the Fiscal Agent shall deem it desirable that a matter of fact be
proved or established prior to taking, suffering or omitting any action
hereunder, the Fiscal Agent (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith or negligence on its part, rely
upon a certificate signed by an Authorized Officer and delivered to the Fiscal
Agent as to such matter of fact.
(h) No Implied Obligations. The duties and obligations of the
Fiscal Agent and the Issuer with respect to matters governed by this Agreement
shall be determined solely by the express provisions hereof, and neither the
Fiscal Agent nor the Issuer shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement and the
Securities, as applicable, and no implied covenants or obligations shall be read
into this Agreement or the Securities against either the Fiscal Agent or the
Issuer. Nothing in this Agreement shall be construed to require the Fiscal Agent
to advance or expend its own funds.
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9. Resignation and Appointment of Successor.
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for the
benefit of the holders from time to time of the Securities, that there shall at
all times be a Fiscal Agent hereunder which shall be a bank or trust company
organized and doing business under the laws of the United States of America or
the State of New York, in good standing and having an established place of
business in the Borough of Manhattan, The City of New York, and authorized under
such laws to exercise corporate trust powers, until all the Securities
authenticated and delivered hereunder (i) shall have been delivered to the
Fiscal Agent for cancellation or (ii) have become payable, with the approval of
the Superintendent, and monies sufficient to pay the full principal of and any
interest remaining unpaid on the Securities shall have been made available for
payment and either paid or returned to the Issuer as provided herein and in such
Securities.
(b) Resignation and Removal. The Fiscal Agent may at any time
resign by giving written notice to the Issuer of such intention on its part,
specifying the date on which its desired resignation shall become effective,
provided that such date shall not be less than 60 days from the date on which
such notice is given, unless the Issuer agrees to accept shorter notice. The
Fiscal Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed on behalf of the Issuer and specifying such removal
and the date when it shall become effective. Notwithstanding the dates of
effectiveness of resignation or removal, as the case may be, to be specified in
accordance with the preceding sentences, such resignation or removal shall take
effect only upon the appointment by the Issuer, as hereinafter provided, of a
successor Fiscal Agent (which, to qualify as such, shall for all purposes
hereunder be a bank or trust company organized and doing business under the laws
of the United States of America or of the State of New York, in good standing
and having or having an affiliate which has an established place of business in
the Borough of Manhattan, The City of New York, authorized under such laws to
exercise corporate trust powers and having a combined capital and surplus in
excess of $50,000,000) and the acceptance of such appointment by such successor
Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be
entitled to payment by the Issuer pursuant to Section 8(a) hereof, to the date
of termination.
(c) Successors. In case at any time the Fiscal Agent (or any
Paying Agent if such Paying Agent is the only Paying Agent located in a place
where, by the terms of the Securities or this Agreement, the Issuer is required
to maintain a Paying Agent) shall resign, or shall be removed, or shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a
voluntary petition in bankruptcy or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet its
debts as they severally mature, or if a receiver of it or of all or any
substantial part of its property shall be appointed, or if an order of any court
shall be entered approving any petition filed by or against it under the
provisions of applicable receivership, bankruptcy, insolvency or other similar
legislation, or if any public officer
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shall take charge or control of it or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a successor Fiscal Agent
or Paying Agent, as the case may be, qualified as aforesaid, shall be appointed
by the Issuer by an instrument in writing, filed with the successor Fiscal Agent
or Paying Agent, as the case may be, and the predecessor Fiscal Agent or Paying
Agent, as the case may be. Upon the appointment as aforesaid of a successor
Fiscal Agent or Paying Agent, as the case may be, and acceptance by such
successor of such appointment, the Fiscal Agent or Paying Agent, as the case may
be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the case may
be, hereunder. If no successor Fiscal Agent or other Paying Agent, as the case
may be, shall have been so appointed by the Issuer and shall have accepted
appointment as hereinafter provided, and, in the case of such other Paying
Agent, if such other Paying Agent is the only Paying Agent located in a place
where, by the terms of the Securities or this Agreement, the Issuer is required
to maintain a Paying Agent, then any holder of a Security who has been a bona
fide holder of a Security for at least six months (which Security, in the case
of such other Paying Agent, is referred to in this sentence), on behalf of
himself and all others similarly situated, or the Fiscal Agent, may petition any
court of competent jurisdiction for the appointment of a successor fiscal or
paying agent, as the case may be. The Issuer shall give prompt written notice to
each other Paying Agent of the appointment of a successor Fiscal Agent.
(d) Acknowledgement. Any successor Fiscal Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to the
Issuer an instrument accepting such appointment hereunder, and thereupon such
successor Fiscal Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Fiscal Agent hereunder and all provisions hereof shall be binding on such
successor Fiscal Agent, and such predecessor, upon payment of its compensation
and reimbursement of its disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Fiscal Agent
shall be entitled to receive, all monies, securities, books, records or other
property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any bank or trust company into
which the Fiscal Agent hereunder may be merged, or resulting from any merger or
consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal
Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Fiscal Agent, provided that it shall be qualified as aforesaid,
shall be the successor Fiscal Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
10. Meetings and Amendments.
(a) Calling of Meeting, Notice and Quorum. A meeting of holders of
Securities may be called at any time and from time to time to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided
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by this Agreement or the Securities to be made, given or taken by holders of
Securities or to modify, amend or supplement the terms of the Securities or this
Agreement as hereinafter provided, and subject to the requirement hereinafter
set forth that the Issuer and the Fiscal Agent may, only with the prior approval
of the Superintendent, modify, amend or supplement this Fiscal Agency Agreement
or the terms of the Securities or give consents or waivers or take other actions
with respect thereto. The Fiscal Agent may at any time call a meeting of holders
of Securities for any such purpose to be held at such time and at such place in
the Borough of Manhattan, The City of New York as the Fiscal Agent shall
determine. Notice of every meeting of holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given as provided in the terms of the
Securities, not less than 30 nor more than 60 days prior to the date fixed for
the meeting (provided that, in the case of any meeting to be reconvened after
adjournment for lack of a quorum, such notice shall be so given not less than 15
nor more than 60 days prior to the date fixed for such meeting). In case at any
time the Issuer or the holders of at least 10% in aggregate principal amount of
the Outstanding Securities (as defined in subsection (d) of this Section) shall
have requested the Fiscal Agent to call a meeting of the holders of Securities
for any such purpose, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, the Fiscal Agent shall call such
meeting for such purposes by giving notice thereof.
To be entitled to vote at any meeting of holders of Securities, a
person shall be a holder of Outstanding Securities or a person duly appointed by
an instrument in writing as proxy for such a holder. The persons entitled to
vote a majority in principal amount of the Outstanding Securities shall
constitute a quorum. At the reconvening of any meeting adjourned for a lack of a
quorum, the persons entitled to vote 25% in principal amount of the Outstanding
Securities shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. The Fiscal Agent may make such reasonable
and customary regulations consistent herewith as it shall deem advisable for any
meeting of holders of Securities with respect to the proof of the appointment of
proxies in respect of holders of Securities, the record date for determining the
registered owners of Securities who are entitled to vote at such meeting (which
date shall be designated by the Fiscal Agent and set forth in the notice calling
such meeting hereinabove referred to and which shall be not less than 15 nor
more than 60 days prior to such meeting, provided that nothing in this paragraph
shall be construed to render ineffective any action taken by holders of the
requisite principal amount of Outstanding Securities on the date such action is
taken), the adjournment and chairmanship of such meeting, the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.
(b) Approval. (i) At any meeting of holders of Securities duly
called and held as specified above, upon the affirmative vote, in person or by
proxy thereunto duly authorized in writing, of the holders of not less than a
majority in aggregate principal amount of the Securities then Outstanding
represented at such meeting, or (ii)
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with the written consent of the holders of not less than a majority in aggregate
principal amount of the Securities then Outstanding, in each case (i) or (ii)
the Issuer and the Fiscal Agent may, with the prior approval of the
Superintendent, modify, amend or supplement the terms of the Securities or this
Agreement in any way, and the holders of Securities may make, take or give any
request, demand, authorization, direction, notice, consent, waiver (including
waiver of future compliance or past failure to perform) or other action provided
by this Agreement or the Securities to be made, given or taken by holders of
Securities; provided, however, that any such action, modification, amendment or
supplement to be effected pursuant to clause (i) of this subsection (b) shall be
approved by the holders of not less than 25% of the aggregate principal amount
of Securities then Outstanding; and provided, further, that no such action,
modification, amendment or supplement, however effected, may, without the
consent of the holder of each Security affected thereby, (A) change the
Scheduled Interest Payment Date or Scheduled Maturity Date (in each case, as
defined in the Securities) of the principal of or any installment of interest on
any Security, (B) reduce the principal amount of any Security or the interest
rate thereon, or, if applicable, the premium payable, if any, with respect to a
redemption thereof, (C) change the currency in which, or the required place at
which, payment with respect to interest or principal in respect of the
Securities is payable, (D) change the Issuer's obligations under Section 7(a)
hereof in any manner adverse to the interests of the holder of a Security, (E)
impair the right of a holder of a Security to institute suit for the enforcement
of any payment, if such payment is permitted under the Payment Restrictions, on
or with respect to any Security, (F) reduce the above-stated percentage of the
principal amount of Outstanding Securities the vote or consent of the holders of
which is necessary to modify, amend or supplement this Agreement or the terms
and conditions of the Securities or to make, take or give any request, demand,
authorization, direction, notice, consent, waiver (including waiver of any
future compliance or past failure to perform) or other action provided hereby or
thereby to be made, taken or given, (G) reduce the percentage in aggregate
principal amount of Outstanding Securities that constitutes the quorum required
at any meeting of holders of Securities at which a resolution is adopted, (H)
change the restrictions on payment set forth in the Securities in a manner
adverse to such holder, or (I) change the provisions of Paragraph 10 of the
Securities in a manner adverse to such holder.
The Issuer and the Fiscal Agent may, with the prior approval of the
Superintendent, without the vote or consent of any holder of Securities, amend
this Agreement or the Securities for the purpose of (a) adding to the covenants
of the Issuer for the benefit of the holders of Securities, or (b) surrendering
any right or power conferred upon the Issuer, or (c) securing the Securities or
(d) evidencing the succession of another corporation to the Issuer and the
assumption by such successor of the covenants and obligations of the Issuer
herein and in the Securities as permitted by this Agreement and the Securities,
or (e) modifying the restrictions on, and procedures for, resale and other
transfers of the Securities to the extent required or permitted by any change in
applicable law or regulation, or the interpretation thereof, or in practices
relating to the resale or transfer of restricted securities generally, or (f)
accommodating the issuance, if any, of Securities in book-entry or certificated
form and matters related
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thereto which do not adversely affect the interest of any Security holder in any
material respect, or (g) curing any ambiguity or correcting or supplementing any
defective provision contained herein or in the Securities in a manner which does
not adversely affect the interest of any Security holder in any material
respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent
may determine is necessary or desirable and which shall not adversely affect the
interest of any Security holder.
It shall not be necessary for the vote or consent of the holders of
Securities to approve the particular form of any proposed modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action, but it shall be sufficient if such vote or
consent shall approve the substance thereof.
The Fiscal Agent may request an opinion of counsel in connection
with any amendment or supplement entered into hereunder.
(c) Binding Nature of Amendments, Notices, Notations, etc. Any
instrument given by or on behalf of any holder of a Security in connection with
any consent to or vote for any such modification, amendment, supplement,
request, demand, authorization, direction, notice, consent, waiver or other
action shall be irrevocable once given and shall be conclusive and binding on
all subsequent holders of such Security or any Security issued directly or
indirectly in exchange or substitution therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action taken, made or given in accordance with
Section 10(b) hereof shall be conclusive and binding on all holders of
Securities, whether or not they have given such consent or cast such vote or
were present at any meeting, and whether or not notation of such modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action is made upon the Securities. Notice of any
modification or amendment of, supplement to, or request, demand, authorization,
direction, notice, consent, waiver or other action with respect to the
Securities or this Agreement (other than for purposes of curing any ambiguity or
of curing, correcting or supplementing any defective provision hereof or
thereof) shall be given to each holder of Securities affected thereby, in all
cases as provided in the Securities.
Securities authenticated and delivered after the effectiveness of
any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may bear a notation in the
form approved by the Fiscal Agent and the Issuer as to any matter provided for
in such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action. New Securities modified to
conform, in the opinion of the Fiscal Agent and the Issuer, to any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action taken, made or given in accordance with
Section 10(b) hereof may be prepared by the Issuer, authenticated by the Fiscal
Agent and delivered in exchange for Outstanding Securities.
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(d) "Outstanding" Defined. For purposes of the provisions of this
Agreement and the Securities, any Security authenticated and delivered pursuant
to this Agreement shall, as of any date of determination, be deemed to be
"Outstanding", except:
(i) Securities theretofore cancelled by the Fiscal Agent or
delivered to the Fiscal Agent for cancellation;
(ii) Securities which have been called for redemption in accordance
with their terms or which have become payable, to the extent permitted
under the Payment Restrictions, at the Scheduled Maturity Date or
otherwise, and with respect to which, in each case, monies sufficient to
pay the principal thereof and any interest thereon shall have been paid;
and
(iii) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to this
Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities are present at a meeting of holders
of Securities for quorum purposes or have consented to or voted in favor of any
request, demand, authorization, direction, notice, consent, waiver, amendment,
modification or supplement hereunder, Securities owned directly or indirectly by
the Issuer, or any affiliate of the Issuer, shall be disregarded and deemed not
to be Outstanding.
11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT
REFERENCE TO CONFLICTS OF LAWS PROVISIONS.
12. Notices.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing, shall specify this Agreement by name
and date and shall identify the Securities, and if sent to the Fiscal Agent
shall be delivered, transmitted by facsimile or telegraphed to it at The Chase
Manhattan Bank, N.A., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Vice President, Corporate Trust Department, telephone: (718)
▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇, and if sent to the Issuer shall be delivered,
transmitted by facsimile or telegraphed to it at The Mutual Life Insurance
Company of New York, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Executive Vice President and Chief Investment Officer, telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇. The foregoing addresses for notices or
communications may be changed by written notice given by the addressee to each
party hereto, and the addressee's address shall be deemed changed for all
purposes from and after the giving of such notice.
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If the Fiscal Agent shall receive any notice or demand addressed to
the Issuer by the holder of a Security, the Fiscal Agent shall promptly forward
such notice or demand to the Issuer.
13. Separability.
In case any provision in this Agreement or in the Securities 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.
14. Headings.
The section headings herein are for convenience of reference only
and shall not affect the construction hereof.
15. Counterparts.
This Agreement may be executed in one or more counterparts, and by
each party separately on a separate counterpart, and each such counterpart when
executed and delivered shall be deemed to be an original. Such counterparts
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Fiscal
Agency Agreement as of the date first above written.
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President &
Chief Investment Officer
THE CHASE MANHATTAN BANK, N.A.
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------
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EXHIBIT A
FORM OF DEFINITIVE SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS MAY BE
HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
[INCLUDE IF SECURITY IS A RESTRICTED DEFINITIVE SECURITY OR
SECURITY ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(g) OF THE
FISCAL AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)]
-- THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE MUTUAL LIFE
INSURANCE COMPANY OF NEW YORK ("MONY") THAT (A) THIS SECURITY MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) BY THE INITIAL
INVESTOR (I) IN A MINIMUM PRINCIPAL AMOUNT OF $250,000 TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN
RULE 144A (OR ANY SUCCESSOR PROVISION THERETO, AND AS MAY HEREAFTER BE AMENDED
FROM TIME TO TIME), UNDER THE ACT IN A TRANSACTION IN ACCORDANCE WITH RULE 144A,
(II) IN AN OFFSHORE TRANSACTION IN A MINIMUM PRINCIPAL AMOUNT OF $500,000 IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S (TOGETHER WITH ANY
SUCCESSOR PROVISION, AND AS MAY HEREAFTER BE AMENDED FROM TIME TO TIME,
"REGULATION S") UNDER THE ACT OR (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 (OR ANY SUCCESSOR PROVISION THERETO, AND AS
MAY HEREAFTER BE AMENDED FROM TIME TO TIME) UNDER THE ACT (IF AVAILABLE) OR (2)
BY SUBSEQUENT INVESTORS, AS SET FORTH IN (1) ABOVE AND, IN ADDITION, IN A
MINIMUM PRINCIPAL AMOUNT OF $500,000 TO AN INSTITUTIONAL INVESTOR WHO IS AN
"ACCREDITED INVESTOR," AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) UNDER THE
ACT, IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
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25
STATES OF THE UNITED STATES, AND (B) THAT THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF MONY
THAT, IF THE HOLDER PROPOSES TO SELL OR TRANSFER THIS SECURITY TO ANY EMPLOYEE
BENEFIT PLAN (AS DEFINED IN SECTION 3 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED), THE HOLDER WILL COMPLY WITH THE RESTRICTIONS SET FORTH
IN PARAGRAPH 10 HEREOF.
ALL PAYMENTS OF PRINCIPAL (INCLUDING ANY PREMIUM WITH RESPECT
TO ANY REDEMPTION) AND INTEREST ON THIS SECURITY MAY ONLY BE MADE OUT OF MONY'S
FREE AND DIVISIBLE SURPLUS AND WITH THE PRIOR APPROVAL OF THE SUPERINTENDENT OF
INSURANCE OF THE STATE OF NEW YORK (THE "SUPERINTENDENT"), IN ACCORDANCE WITH
SECTION 1307 OF THE NEW YORK INSURANCE LAW (TOGETHER WITH ANY SUCCESSOR
PROVISION, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "SECTION 1307").
THERE ARE NO GUIDELINES OR INTERPRETATIONS AS TO THE EXTENT OF THE
SUPERINTENDENT'S DISCRETION UNDER SECTION 1307 IN DETERMINING WHETHER THE
FINANCIAL CONDITION OF MONY WARRANTS THE MAKING OF SUCH PAYMENTS.
IF THE NOTES MATURE PRIOR TO THE FINAL SCHEDULED MATURITY DATE
SET FORTH HEREIN, THE CLAIM OF A HOLDER OF NOTES WITH RESPECT TO THE PRINCIPAL
AMOUNT THEREOF WILL BE LIMITED TO AN AMOUNT EQUAL TO THE "ACCRETED VALUE" OF THE
NOTES, AS DESCRIBED IN PARAGRAPH 7 HEREOF, WHICH AMOUNT WILL FOR ALL PERIODS
PRIOR TO AUGUST 15, 1999 BE LESS THAN 100% OF THE PRINCIPAL AMOUNT AT MATURITY
OF THE NOTES.
THE NOTES WILL BE ISSUED AT AN ISSUE PRICE OF $578.54 PER
$1,000 PRINCIPAL AMOUNT, WHICH REPRESENTS A DISCOUNT OF 42.146% FROM THE
PRINCIPAL AMOUNT PAYABLE AT MATURITY. CONSEQUENTLY, PURCHASERS OF THE NOTES
SHOULD BE AWARE THAT, ALTHOUGH CASH INTEREST WILL NOT ACCRUE ON THE NOTES PRIOR
TO AUGUST 15, 1999, AND CASH INTEREST IS NOT SCHEDULED TO BE PAID ON THE NOTES
PRIOR TO FEBRUARY 15, 2000, ORIGINAL ISSUE DISCOUNT WILL ACCRUE FROM THE ISSUE
DATE OF THE NOTES AND WILL BE INCLUDIBLE AS INTEREST INCOME PERIODICALLY
(INCLUDING FOR PERIODS ENDING PRIOR TO FEBRUARY 15, 2000) IN A HOLDER'S GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF WHETHER THE
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26
HOLDER HAS RECEIVED THE CASH PAYMENTS TO WHICH THE INCOME IS ATTRIBUTABLE.
A-3
27
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
11 1/4% Surplus Note scheduled to mature on August 15, 2024
No. R- _____ $________
Issue Date: August 15, 1994
Issue Price: $578.54
Original Issue Discount: $421.46
Yield to Maturity: 11 1/4%
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a mutual life
insurance company organized under the laws of the State of New York (herein
called the "Issuer"), for value received, hereby promises to pay, subject to the
approval of the Superintendent pursuant to Section 1307, to
______________________, or registered assigns, the principal sum of
_______________ United States dollars ($__________) on August 15, 2024 (the
"Final Scheduled Maturity Date"), and to pay interest thereon, subject to the
approval of the Superintendent pursuant to Section 1307, from August 15, 1999 or
from the most recent Scheduled Interest Payment Date to which interest has been
paid or duly provided for, semi-annually in arrears on February 15 and August 15
in each year, commencing February 15, 2000 (each a "Scheduled Interest Payment
Date", which term shall also include any other dates on which the payment of
interest herein may be due in accordance with paragraph 4(a) hereof), at the
rate of 11 1/4% per annum, until the principal hereof is paid or duly provided
for. Any reference herein to the term "principal" or the "principal amount" of
this Security shall include the amount of premium, if any, payable upon
redemption hereof in accordance with paragraph 15 hereof. Any reference herein
to the term "Scheduled Maturity Date" or other date for the payment of principal
of this Security shall include the Final Scheduled Maturity Date and the date,
if any, fixed for redemption hereof in accordance with paragraph 15 hereof. The
date upon which any state or federal agency obtains an order or grants approval
for the rehabilitation, liquidation, conservation or dissolution of the Issuer
shall also be deemed to be the Scheduled Maturity Date of this Security. As
specified on the reverse hereof, all payments of principal of or interest on
this Security may be made only out of the Issuer's free and divisible surplus
and only with the prior approval of the Superintendent. The interest so payable,
and punctually paid or duly provided for, on any Scheduled Interest Payment Date
shall be paid, in accordance with the terms of the Fiscal Agency Agreement
hereinafter referred to, to the person (the "registered holder") in whose name
this Security (or one or more predecessor Securities) is registered at the close
of business on the January 31 or July 31 (whether or not a business day), as the
case may be (each a "Regular Record Date"), next preceding such Scheduled
Interest Payment Date. Interest on the Securities shall be calculated on the
basis of a 360-day year of twelve 30-day months. Any such interest not so
punctually paid or duly provided for shall forthwith
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28
cease to be payable to the registered holder on such Regular Record Date and
shall be paid to the person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a special
record date for the payment of such interest to be fixed by the Issuer, notice
whereof shall be given to registered holders of the Securities not less than 15
days prior to such special record date.
Interest on this Security will not accrue until August 15,
1999, except in the event the Accreted Value (as defined in Section 7 hereof)
hereof shall become immediately due and payable prior to such date in accordance
with paragraph 16(a) hereof, in which case such Accreted Value (the amount of
which shall be calculated in accordance with paragraph 7 hereof) shall bear
interest at the rate of 11 1/4%-per annum from the date such amount is due
until paid or duly provided for; provided, however, that interest will not
accrue or be payable upon any such interest with respect to any such Accreted
Value amounts.
Principal of this Security shall be payable against surrender
hereof at the corporate trust office of the Fiscal Agent hereinafter referred to
and at the offices of such other Paying Agents as the Issuer shall have
appointed pursuant to the Fiscal Agency Agreement. Payments of principal of the
Securities shall be made only against surrender of the Securities. Payments of
interest on this Security may be made, in accordance with the foregoing and
subject to applicable laws and regulations, by check mailed on or before the
Scheduled Interest Payment Date of such payment to the person entitled thereto
at such person's address appearing on the aforementioned register. In the case
of a registered holder of at least $5,000,000 aggregate principal amount of
Securities, payments of principal or interest may be made by wire transfer to an
account maintained by the payee with a bank if such registered holder so elects
by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days
as the Fiscal Agent may accept at its discretion) prior to the applicable
Scheduled Interest Payment Date or Scheduled Maturity Date hereof, of such
election and of the account to which payments are to be made. Unless such
designation is revoked, any such designation made by such holder with respect to
such Securities shall remain in effect with respect to any future payments with
respect to such Securities payable to such holder. The Issuer agrees that until
this Security has been delivered to the Fiscal Agent for cancellation, or monies
sufficient to pay the full principal of and interest remaining unpaid on this
Security have been made available for payment and either paid or returned to the
Issuer as provided herein, it will at all times maintain offices or agencies in
the Borough of Manhattan, The City of New York and for the payment of the
principal of and interest on the Securities as herein provided.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security may be executed by the Issuer by manual or
facsimile signatures, and such signatures may be executed on separate
counterparts.
A-5
29
Unless the certificate of authentication hereon has been
executed by the Fiscal Agent by manual signature, this Security shall not be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated:
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
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30
This is one of the Securities referred to in the
within-mentioned Fiscal Agency Agreement.
THE CHASE MANHATTAN BANK, N.A.,
as Fiscal Agent
By:
------------------------------------
Authorized Officer
A-7
31
FORM OF REVERSE
1. This Security is one of a duly authorized issue of 11 1/4%
Surplus Notes scheduled to mature on August 15, 2024 of the Issuer (herein
called the "Securities" or "Notes") , limited in aggregate principal amount to
$125,000,000. The Issuer and The Chase Manhattan Bank, N.A. (as "Fiscal Agent")
have entered into a Fiscal Agency Agreement, dated as of August 15, 1994 (such
instrument, as it may be duly amended from time to time, is herein called the
"Fiscal Agency Agreement") , which provides for the mechanism for issuing the
Securities and, inter alia, sets forth certain duties of the Fiscal Agent in
connection therewith. As used herein, the term "Fiscal Agent" includes any
successor fiscal agent under the Fiscal Agency Agreement. Copies of the Fiscal
Agency Agreement are on file and available for inspection at the corporate trust
office of the Fiscal Agent in the Borough of Manhattan, The City of New York.
Holders of Securities are referred to the Fiscal Agency Agreement for a
statement of the terms thereof, including those relating to transfer, payment,
exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall
also act as Transfer Agent and Securities registrar. Terms used herein which are
defined in the Fiscal Agency Agreement but not otherwise defined herein shall
have the meanings assigned to such terms in the Fiscal Agency Agreement.
The Securities are direct and unsecured obligations of the
Issuer and, subject to the payment restrictions contained in paragraphs 4 and 11
hereof (the "Payment Restrictions"), are scheduled to mature on August 15, 2024.
Section 1307 provides that the Securities are not part of the legal liabilities
of the Issuer and are not a basis of any set-off against the Issuer.
2. The Securities are issuable only in fully registered form
without coupons. Securities are issuable in minimum denominations of $[250,000]
$[500,000] and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The
City of New York, a Transfer Agent where Securities may be registered or
surrendered for registration of transfer or exchange. The Issuer has initially
appointed the Corporate Trust Office of the Fiscal Agent as its Transfer Agent
in the Borough of Manhattan, The City of New York. The Issuer shall cause each
Transfer Agent to act as a Securities registrar and shall cause to be kept at
the office of each Transfer Agent a register in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and registration of transfers of Securities. The
Issuer reserves the right to vary or terminate the appointment of any Transfer
Agent or to appoint additional or other Transfer Agents or to approve any change
in the office through which any Transfer Agent acts, provided that there shall
at all times be a Transfer Agent in the Borough of Manhattan, The City of New
York. The Issuer shall cause notice of any resignation, termination or
appointment of the Fiscal Agent or any Paying
A-8
32
Agent or Transfer Agent and of any change in the office through which any such
Agent shall act to be provided to holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, the transfer of a Security is registrable on the
aforementioned register upon surrender of such Security at any Transfer Agent
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer duly executed by, the registered holder thereof or
his attorney duly authorized in writing. Upon such surrender of this Security
for registration of transfer, the Issuer shall execute, and the Fiscal Agent
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, dated the date of authentication
thereof, of any authorized denominations and of a like aggregate principal
amount.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, at the option of the registered holder upon request confirmed
in writing, Securities may be exchanged for Securities of any authorized
denominations and aggregate principal amount upon surrender of the Securities to
be exchanged at the office of any Transfer Agent. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver, the Securities which the registered holder making the
exchange is entitled to receive. Any registration of transfer or exchange shall
be effected upon the Issuer being satisfied with the documents of title and
identity of the person making the request and subject to the restrictions set
forth in the immediately following paragraph and such reasonable regulations as
the Issuer may from time to time agree with the Fiscal Agent.
Securities may be redeemed by the Issuer, in whole or in part,
but only to the extent permitted by the Payment Restrictions, including the
prior approval of the Superintendent, in accordance with paragraph 15 hereof. In
the event of a partial redemption, the Issuer shall not be required (i) to
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the date notice is given identifying the
Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security, or portion thereof, called for redemption.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits, as the Securities surrendered
upon such registration of transfer or exchange. No service charge shall be made
for any registration of transfer or exchange, but the Issuer 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 Security for registration of
transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal
Agent may treat the person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected
by notice to the contrary.
A-9
33
4. (a) Notwithstanding anything to the contrary set forth
herein or in the Fiscal Agency Agreement, any payment of principal of, interest
on or any monies owing with respect to this Security, whether at the Scheduled
Interest Payment Date or Scheduled Maturity Date specified herein or otherwise,
may be made only (i) out of the free and divisible surplus of the Issuer which
the Superintendent determines to be available for such payments under Section
1307 and (ii) with the prior approval of the Superintendent whenever, in his
judgment, the financial condition of the Issuer warrants such payment, in
accordance with Section 1307. If the Superintendent does not approve the making
of any payment of principal of or interest on this Security on the Scheduled
Interest Payment Date or Scheduled Maturity Date thereof, as specified herein,
the Scheduled Interest Payment Date or Scheduled Maturity Date, as the case may
be, shall be extended and such payment shall be made by the Issuer on the next
following Business Day on which the Issuer shall have the approval of the
Superintendent to make such payment. Interest will continue to accrue on any
such unpaid principal through the actual date of payment at the rate of interest
stated on the face hereof. Interest will not accrue on interest with respect to
which the Scheduled Interest Payment Date has been extended, during the period
of such extension. If the Superintendent approves a payment of principal of or
interest on the Securities in an amount that is less than the full amount of
principal of and interest on the Securities then scheduled to be paid in respect
of the Securities, payment of such partial amount shall be made pro rata among
Security holders as their interests may appear.
(b) Any payment of principal of or interest on any Security as
to which the approval of the Superintendent has been obtained and which is not
punctually paid or duly provided for on the Scheduled Interest Payment Date or
Scheduled Maturity Date thereof, as set forth herein (such payment being
referred to as an "Unpaid Amount"), will forthwith cease to be payable to the
registered owner of this Security on the relevant record date designated herein,
and such Unpaid Amount will instead be payable to the registered owner of this
Security on a subsequent special record date. The Issuer shall fix the special
record date and payment date for the payment of any Unpaid Amount. At least 15
days before the special record date, the Issuer shall mail to each holder of the
Securities and the Fiscal Agent a notice that states the special record date,
payment date and amount of interest or principal to be paid. On the payment date
set forth in such notice, the Paying Agent shall pay the amount of interest or
principal to be so paid to each holder of the Securities in the manner set forth
in Section 4(a) of the Fiscal Agency Agreement.
5. (a) For so long as the Fiscal Agent is acting as a Paying
Agent hereunder, the Issuer shall provide, subject to the Payment Restrictions,
to the Fiscal Agent in immediately available funds on or prior to 10:00 a.m.,
New York time, of each date on which a payment of principal of or any interest
on this Security is payable, as set forth herein, such amounts as are necessary
(with any amounts then held by the Fiscal Agent and available for the purpose)
to make such payment, and the Issuer hereby authorizes and directs the Fiscal
Agent from funds so provided to it to make or cause to
A-10
34
be made payment of the principal of and any interest, as the case may be, on
this Security as set forth herein and in the Fiscal Agency Agreement. Payments
of principal of or any interest on the Securities may be made, in the case of a
registered holder of at least $5,000,000 principal amount of Securities, by wire
transfer to an account maintained by the payee with a bank if such registered
holder so elects by giving notice to the Fiscal Agent, not less than 15 days (or
such fewer days as the Fiscal Agent may accept at its discretion) prior to the
date on which such payments are scheduled to be made, of such election and of
the account to which payments are to be made. Unless such designation is
revoked, any such designation made by such holder with respect to such
Securities shall remain in effect with respect to any future payments with
respect to such Securities payable to such holder. The Issuer shall pay any
reasonable administrative costs in connection with making any such payments. The
Fiscal Agent shall arrange directly with any other Paying Agent who may have
been appointed by the Issuer pursuant to the provisions of Section 2 of the
Fiscal Agency Agreement for the payment from funds so paid by the Issuer of the
principal of and any interest on this Security. Any monies held in respect of
this Security remaining unclaimed at the end of two years after such principal
and such interest shall have become payable in accordance with the Payment
Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies
sufficient therefor shall have been duly made available for payment shall,
together with any interest made available for payment thereon, be repaid to the
Issuer upon written request and upon such repayment all liability of the Fiscal
Agent with respect thereto shall cease, without, however, limiting in any way
any obligation the Issuer may have to pay the principal of and interest on this
Security, subject to the Payment Restrictions.
(b) In any case where the Scheduled Interest Payment Date or
Scheduled Maturity Date of any Security shall be at any place of payment a day
on which banking institutions are not carrying out transactions in U.S. dollars
or are authorized or obligated by law or executive order to close, then payment
of principal or interest need not be made on such date at such place but may be
made on the next succeeding day at such place which is not a day on which
banking institutions in the applicable jurisdiction are generally authorized or
obligated by law or executive order to close (a "Business Day"), with the same
force and effect as if made on the Scheduled Interest Payment Date or Scheduled
Maturity Date thereof, and no interest shall accrue for the period after such
date.
6. The Issuer shall pay all stamp and other duties, if any,
which may be imposed by the United States of America or any governmental entity
or any political subdivision thereof or taxing authority of or in the foregoing
with respect to the Fiscal Agency Agreement or the initial issuance of this
Security. Except as otherwise specifically provided in this Security, the Issuer
shall not be required to make any payment with respect to any tax, duty,
assessment or other governmental charge of whatever nature imposed or levied by
any government or any political subdivision or taxing authority thereof or
therein.
▇-▇▇
▇▇
▇. In the event that, pursuant to any provisions of this
Security or the Fiscal Agency Agreement, the principal in respect of this
Security shall mature prior to the Final Scheduled Maturity Date, the principal
amount so matured shall be equal to the Accreted Value hereof. The "Accreted
Value" shall be equal to the sum of (i) the issue price of this Security as
determined in accordance with Section 1273 of the Internal Revenue Code, as
amended from time to time (the "Code"), plus (ii) the aggregate of the portions
of the original issue discount (the excess of the amounts considered as part of
the "stated redemption price at maturity" within the meaning of Section
1273(a)(2) of the Code or any successor provisions, whether denominated as
principal or interest, over the issue price) that shall theretofore have accrued
pursuant to Section 1272 of the Code (without regard to Section 1272(a)(7) of
the Code) from the date of issue (a) for each six-month or shorter period ending
February 15 or August 15 prior to the date of determination and (b) for the
shorter period, if any, from the end of the immediately preceding six-month or
shorter period, as the case may be, to the date of determination, minus all
amounts theretofore paid in respect of this Security, which amounts are
considered as part of the "stated redemption price at maturity" of this Security
within the meaning of Section 1273(a)(2) of the Code or any successor provisions
(whether such amounts paid were denominated principal or interest).
8. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities,
(a) Except with respect to transactions covered by paragraph 9
hereof, the Issuer will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, material rights
(charter and statutory) and franchise; provided, however, that the Issuer 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 Issuer and that the Issuer has used its
best efforts to not disadvantage in any material respect the holders of the
Securities, or that not preserving such right or franchise is in the best
interest of the policyholders of the Issuer having considered the interests of
the holders of the Securities.
(b) The Issuer will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), if such action would cause the Issuer
to be in violation of the Investment Company Act at any time prior to payment in
full of the Securities.
(c) The Issuer shall use its best efforts to obtain the
approval of the Superintendent in accordance with Section 1307 for the payment
by the Issuer of interest on and principal of the Securities on the Scheduled
Interest Payment Dates or Scheduled Maturity Dates thereof, and, in the event
any such approval has not been obtained for any such payment at or prior to the
Scheduled Interest Payment Date
A-12
36
or Scheduled Maturity Date thereof, as the case may be, to continue to use its
best efforts to obtain such approval promptly thereafter. Not less than 45 days
prior to the Scheduled Interest Payment Date or Scheduled Maturity Date thereof
(excluding any such Scheduled Maturity Date which arises as a result of the
obtaining of an order or the granting of approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer), the Issuer will seek
the approval of the Superintendent to make each payment of interest on and
principal of the Securities. In addition, the Issuer shall notify or cause to be
notified each holder and the Fiscal Agent no later than 5 Business Days (as
defined herein) prior to the Scheduled Interest Payment Date for interest on or
the Scheduled Maturity Date for principal of any Security (excluding any such
Scheduled Maturity Date which arises as a result of the obtaining of an order or
the granting of approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer) in the event that the Superintendent has not then
approved the making of any such payment on such Scheduled Interest Payment Date
or such Scheduled Maturity Date, and thereafter shall promptly notify each
holder and the Fiscal Agent in the event that the Issuer shall have failed to
make any such payment on any such Scheduled Interest Payment Date or such
Scheduled Maturity Date. Without limiting the Issuer's obligations set forth in
this paragraph, it is understood that, to the extent authorized by the Issuer's
Board of Directors, the Issuer may continue to declare policyowner dividends and
to make dividend payments on its participating policies even though payments on
the Securities may not have been approved by the Superintendent, regardless of
the effect any such declaration or payment may have on the Superintendent's
decision regarding payment of interest on or principal of the Securities.
9. For so long as any of the Securities remain Outstanding or
any amounts remain unpaid on any of the Securities, the Issuer may convert
itself from a mutual life insurance company into a stock life insurance company
(such conversion, a "demutualization"), merge or consolidate with or into any
other corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any person, firm or corporation, if (i) (A)
in the case of a merger or consolidation, the Issuer is the surviving
corporation or (B) in the case of a merger or consolidation where the Issuer is
not the surviving corporation and in the case of any such sale, conveyance,
transfer or other disposition, the successor corporation is a corporation
organized and existing under the laws of the United States or a State thereof
and such corporation expressly assumes by supplemental fiscal agency agreement
all the obligations of the Issuer under the Securities and the Fiscal Agency
Agreement, (ii) at the time of any such demutualization, merger or
consolidation, or such sale, conveyance, transfer or other disposition, the
Issuer shall not have failed to make payment of interest on or principal of the
Securities after having received the Superintendent's prior approval to make
such payment and (iii) the Issuer has delivered to the Fiscal Agent an Officer's
Certificate stating that such demutualization, merger, consolidation, sale,
conveyance, transfer or other disposition complies with this paragraph and that
all conditions precedent herein provided for relating to such transaction have
been complied with. In the event of the assumption by a successor corporation of
the obligations of the Issuer as provided in clause (i)(B) of the immediately
preceding sentence, such successor corporation shall succeed to and be
substituted for the Issuer hereunder and under the Fiscal Agency Agreement and
all such obligations of the Issuer shall terminate.
▇-▇▇
▇▇
▇▇. No employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the prohibited transaction provisions of the Internal Revenue Code
of 1986, as amended (the "Code"), as to which the Issuer is a party in interest
or a disqualified person (each a "Plan"), and no Person acting on behalf of a
Plan, may acquire this Security, unless the acquisition of the Security is
exempt under one or more of Prohibited Transaction exemptions 84-14, 90-1 or
91-38 (or any amendment thereof) or another applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
purchase by any Person of this Security shall constitute a representation by
such Person to the Issuer and the Fiscal Agent that such Person either (i) is
not a Plan or (ii) is a Plan, and may acquire this Security under an applicable
exemption from the prohibitions under Section 406 of ERISA and Section 4975 of
the Code. The restrictions on purchases of the Securities set forth in this
paragraph 10 are in addition to those otherwise set forth in Section 6 of the
Fiscal Agency Agreement and under applicable law.
11. (a) The Issuer agrees, and each Security holder by
accepting a Security agrees, that the indebtedness evidenced by the Securities
is subordinated in right of payment, to the extent and in the manner provided in
this paragraph, to the prior payment in full of all Indebtedness, Policy Claims
and Other Creditor Claims (each as hereinafter defined), in accordance with
Section 7435 of the New York Insurance Law (together with any successor
provision, and as may be hereafter amended from time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation, conservation, dissolution or reorganization
proceeding relating to the Issuer or its property, the priority of claims of
Security holders shall be determined in accordance with Section 7435. In a
proceeding commenced under Article 74 of the New York Insurance Law, claims for
principal of or interest on the Securities constitute Class 7 claims under
Section 7435, as currently in effect. If the Superintendent approves a payment
of principal of or interest on the Securities in an amount that is less than the
full amount of principal of and interest on the Securities then scheduled to be
paid in respect of the Securities, payment of such partial amount shall be made
pro rata among Security holders as their interests may appear.
(c) If a distribution is made to Security holders that,
because of this paragraph, should not have been made to them, the Security
holders who receive the distribution shall hold it in trust for holders of
Policy Claims, Indebtedness and Other Creditor Claims and pay it over to them as
their interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the
Paying Agent of any facts known to the Issuer that would cause a payment of
principal of or interest on the Securities to violate this paragraph.
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(e) This paragraph defines the relative rights of Security
holders, on the one hand, and holders of any other claims, in accordance with
Section 7435, on the other hand. Nothing in this Security or the Fiscal Agency
Agreement shall (i) impair, as between the Issuer and Security holders, the
obligation of the Issuer which is, subject to the Payment Restrictions, absolute
and unconditional to pay principal of and interest on the Securities in
accordance with their terms; (ii) affect the relative rights of Security holders
and creditors of the Issuer, other than holders of Policy Claims, Indebtedness
or Other Creditor Claims; or (iii) prevent the Fiscal Agent or any Security
holder from exercising any available remedies upon a breach by the Issuer of its
obligations hereunder, subject to the rights of holders of Policy Claims,
Indebtedness or Other Creditor Claims to receive distributions otherwise payable
to Security holders.
(f) No right of any holder of Policy Claims, Indebtedness or
Other Creditor Claims to enforce the subordination of the indebtedness evidenced
by the Securities shall be impaired by any act or failure to act by the Issuer
or by its failure to comply with the terms of this Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof,
authorizes and directs the Fiscal Agent on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all
such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i)
all existing or future indebtedness of the Issuer for borrowed money, (ii) all
existing or future indebtedness for borrowed money of other persons, the payment
of which is guaranteed by the Issuer, (iii) all existing or future obligations
of the Issuer under any agreement obligating the Issuer to cause another person
to maintain a minimum level of net worth, or otherwise to ensure the solvency of
such person and (iv) any expense or any claim or amount, to the extent that
payment of principal of and interest on the Securities is required by law to be
subordinated to the prior payment thereof. Any obligation of the Issuer which by
its express terms is subordinated in right of payment to, or ranks equally with,
the Securities, or any indebtedness or other obligation of any separate account
of the Issuer, shall not constitute Indebtedness. However, under current law the
Issuer cannot incur any indebtedness which by its terms is subordinate to the
Securities. In addition, any other surplus notes or similar obligations of the
Issuer shall not constitute Indebtedness and will rank pari passu with the
Securities.
As used herein, "Policy Claims" shall mean all existing or
future claims of policyholders or beneficiaries, as the case may be, under any
and all existing or future policies, endorsements, riders and other contracts of
insurance, annuity contracts (including, without limitation, guaranteed
investment contracts) and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or hereafter created, all claims arising
under separate account agreements to the extent such claims are not fully
discharged by the assets held by the Issuer in the applicable separate accounts
and all claims of The Life Insurance Company Guaranty Corporation of New York or
any
A-15
39
other guaranty corporation or association of New York or any other jurisdiction,
other than claims described in clause (i) of the definition of "Other Creditor
Claims" below and claims for interest.
As used herein "Other Creditor Claims" shall mean all other
claims which, pursuant to Section 7435, have priority over claims with respect
to the Securities. Under Section 7435 as currently in effect, such other claims
include (i) claims with respect to the actual and necessary costs and expenses
of administration incurred by a liquidator, conservator, rehabilitator or
ancillary rehabilitator under Section 7435; (ii) claims with respect to the
actual and necessary costs and expenses of administration incurred by The Life
Insurance Guaranty Corporation or The Life Insurance Company Guaranty
Corporation of New York; (iii) claims of The Life Insurance Company Guaranty
Corporation for certain funds loaned to the Superintendent under Section 7713(d)
of the New York Insurance Law; (iv) debts up to $1,200 due to employees for
services performed within one year of the commencement of rehabilitation,
liquidation, conservation, dissolution or reorganization proceedings; (v) claims
for payment for goods furnished or services rendered in the ordinary course of
business within 90 days of the declaration of the impairment or insolvency of
the Issuer; (vi) claims of the federal or any state or local government (except
in the case of claims for a penalty or forfeiture which are included only to the
extent of pecuniary loss and reasonable costs occasioned by the act giving rise
to the forfeiture or penalty); and (vii) claims of general creditors and all
other claims having priority under Section 7435.
12. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities, the Issuer shall, in
accordance with Rule 144A, comply with the terms of the agreements set forth in
Section 7 of the Fiscal Agency Agreement. The provisions of Sections 7 and 8 of
the Fiscal Agency Agreement are hereby incorporated mutatis mutandis herein.
13. In case this Security shall become mutilated, defaced,
destroyed, lost or stolen, the Issuer will execute and upon the Issuer's request
the Fiscal Agent shall authenticate and deliver a new Security, having a number
not contemporaneously outstanding, of like tenor (including the same date of
issuance) and equal principal amount, registered in the same manner, dated the
date of its authentication and bearing interest from the date to which interest
has been paid on this Security, in exchange and substitution for this Security
(upon surrender and cancellation thereof) or in lieu of and substitution for
this Security. In the case where this Security is destroyed, lost or stolen, the
applicant for a substituted Security shall furnish to the Issuer such security
or indemnity as may be required by the Issuer to save it and the Fiscal Agent
harmless, and, in every case of destruction, loss or theft of this Security, the
applicant shall also furnish to the Issuer satisfactory evidence of the
destruction, loss or theft of this Security and of the ownership thereof;
provided, however, that if the registered holder hereof is, in the judgment of
the Issuer, an institution of recognized responsibility, such holder's written
agreement of indemnity shall be deemed to be satisfactory for the issuance of a
new Security in lieu of and substitution for this Security. The Fiscal Agent
shall authenticate
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40
any such substituted Security and deliver the same only upon written request or
authorization of the Issuer. Upon the issuance of any substituted Security, the
Issuer may require the payment by the registered holder thereof of a sum
sufficient to cover fees and expenses connected therewith. In case this Security
has matured or is about to mature and shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except if this Security is mutilated or defaced)
upon compliance by the registered holder with the provisions of this paragraph
13 as hereinabove set forth.
14. Section 10 of the Fiscal Agency Agreement, which Section
is hereby incorporated mutatis mutandis by reference herein, provides that, with
certain exceptions as therein provided and with the consent of the holders of a
majority of the principal amount of the Outstanding Securities present at a
meeting duly called pursuant thereto or by written consent of such percentage of
the principal amount of all Outstanding Securities, the Issuer and the Fiscal
Agent may, with the prior approval of the Superintendent, modify, amend or
supplement the Fiscal Agency Agreement or the terms of the Securities or may
give consents or waivers or take other actions with respect thereto. Any such
modification, amendment, supplement, consent, waiver or other action shall be
conclusive and binding on the holder of this Security and on all future holders
of this Security and of any Security issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation
thereof is made upon this Security. The Fiscal Agency Agreement and the terms of
the Securities may, with the prior approval of the Superintendent, be modified
or amended by the Issuer and the Fiscal Agent, without the consent of any
holders of Securities, for the purpose of (a) adding to the covenants of the
Issuer for the benefit of the holders of Securities, or (b) surrendering any
right or power conferred upon the Issuer, or (c) securing the Securities
pursuant to the requirements hereof, thereof or otherwise, or (d) evidencing the
succession of another corporation to the Issuer and the assumption by such
successor of the covenants and obligations of the Issuer herein and in the
Fiscal Agency Agreement as permitted by the Securities and the Fiscal Agency
Agreement, or (e) modifying the restrictions on, and procedures for, resale and
other transfers of the Securities to the extent required or permitted by any
change in applicable law or regulation (or the interpretation thereof) or in
practices relating to the resale or transfer of restricted securities generally,
or (f) accommodating the issuance, if any, of Securities in book-entry or
certificated form and matters related thereto which do not adversely affect the
interest of any Security holder in any material respect, or (g) curing any
ambiguity or correcting or supplementing any defective provision contained
herein or in the Fiscal Agency Agreement in a manner which does not adversely
affect the interest of any Security holder in any material respect, or (h)
effecting any amendment which the Issuer and the Fiscal Agent may determine is
necessary or desirable and which shall not adversely affect the interest of any
Security holder, to all of which each holder of any Security, by acceptance
thereof, consents.
15. (a) Subject to the Payment Restrictions and the prior
approval of the Superintendent, up to $31,250,000 of the aggregate principal
amount of the
A-17
41
Securities may be redeemed at the option of the Issuer, in each twelve-month
period commencing August 15, 2021, at any time upon not more than 60 days' nor
less than 30 days' notice as herein provided, at the following Redemption Prices
(expressed as percentages of the principal amount), in each case together with
accrued interest (except if the date of such redemption is a Scheduled Interest
Payment Date) to the date of redemption, during the twelve-month period
beginning August 15 of the years indicated:
Year Redemption Price
---- ----------------
2021 100%
2022 100%
2023 100%
Interest installments the payment of which have been approved by the
Superintendent and which are payable on or prior to such date of redemption will
be payable to the holders of such Securities of record at the close of business
on the relevant Record Dates set forth herein.
(b) In the case of any partial redemption of Securities, the
Securities to be redeemed shall be selected by the Fiscal Agent not less than 30
days prior to the date of such redemption, from the Outstanding Securities not
previously called for redemption, by such method as the Fiscal Agent shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities of a denomination larger than $250,000.
(c) Notices to redeem Securities shall be given to holders of
Securities in writing mailed, first-class postage prepaid, to each holder of
Securities, or portions thereof, so to be redeemed, at his address as it appears
in the Security Register. Such notice will be given once not more than 60 days
nor less than 30 days prior to the date fixed for redemption, and shall be
deemed to have been given on the date of mailing. If by reason of the suspension
of regular mail service, or by reason of any other cause, it shall be
impracticable to give notice to the holders of Securities in the manner
prescribed herein, then such notification in lieu thereof as shall be made by
the Issuer or by the Fiscal Agent on behalf of and at the instruction of the
Issuer shall constitute sufficient provision of such notice, if such
notification shall, so far as may be practicable, approximate the terms and
conditions of the mailed notice in lieu of which it is given. Neither the
failure to give notice nor any defect in any notice given to any particular
holder of a Security shall affect the sufficiency of any notice with respect to
other Securities. Notices to redeem Securities shall specify the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of the Securities to be redeemed
(or portion thereof in the case of a partial redemption), that interest accrued
to the date fixed for redemption (unless the date of redemption is a Scheduled
Interest Payment Date) will be paid as specified in said notice, and that on and
after said date interest thereon will cease to accrue if the Securities
A-18
42
are so redeemed. In addition, in the case of a partial redemption, the
Redemption Notice shall specify the Securities called for redemption and the
aggregate principal amount of the Securities to remain Outstanding after the
redemption.
(d) If notice of redemption has been given in the manner set
forth in paragraph 15(c) hereof, the Securities so to be redeemed shall, subject
to the Payment Restrictions, be payable in full on the date specified in such
notice and upon presentation and surrender of the Securities at the place or
places specified in such notice, the Securities shall be paid and redeemed by
the Issuer at the places and in the manner and currency herein specified and at
the redemption price together with accrued interest (unless the redemption date
is a Scheduled Interest Payment Date) to the redemption date. From and after the
redemption date, if monies for the redemption of Securities called for
redemption shall have been made available at the Principal Office of the Fiscal
Agent for redemption on the redemption date, the Securities called for
redemption shall cease to bear interest, and the only right of the holders with
respect to such Securities or portion thereof being redeemed shall be to receive
payment of the redemption price together with accrued interest (unless the
redemption date is an Interest Payment Date) to the redemption date as
aforesaid. If monies for the redemption of the Securities are not made available
for payment until after the redemption date, the Securities called for
redemption shall not cease to bear interest until such monies have been so made
available.
(e) Any Security which is to be redeemed only in part shall be
surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Fiscal Agent duly executed by, the holder thereof or his attorney duly
authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver to the holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such holder, and as permitted by Section 1(d) of the Agreement, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
16. Holders of Securities may enforce the Fiscal Agency
Agreement or the Securities only in the manner set forth below.
(a) In the event that any state or federal agency shall obtain
an order or grant approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer, the Securities will upon the obtaining of such an
order or the granting of such approval immediately mature in full (subject to
the provisions of the next sentence) without any action on the part of the
Fiscal Agent or any holder of the Securities, with payment thereon being subject
to the Payment Restrictions, and any restrictions imposed as a consequence of,
or pursuant to, such proceedings. In the event the Securities shall mature prior
to August 15, 1999 in accordance with the preceding sentence, the principal
amount due in respect thereof shall equal the Accreted Value of the Security as
of such date, calculated in accordance with paragraph 7 hereof. Notwithstanding
any other provision of this Security or the Fiscal Agency Agreement, in no event
shall the Fiscal Agent or any
A-19
43
holder of the Securities be entitled to declare the Securities to immediately
mature or otherwise be immediately payable.
(b) In the event that the Superintendent approves in whole or
in part a payment of any interest on or principal of any Securities and the
Issuer fails to pay the full amount of such approved payment on the date such
amount is scheduled to be paid, such approved amount will be immediately payable
on such date without any action on the part of the Fiscal Agent or any holder of
Securities. In the event that the Issuer fails to perform any of its other
obligations hereunder or under the Fiscal Agency Agreement, each holder of the
Securities may pursue any available remedy to enforce the performance of any
provision of such Securities or the Fiscal Agency Agreement, provided, however,
that such remedy shall in no event include the right to declare the Securities
immediately payable, and shall in no circumstances be inconsistent with the
provisions of Section 1307. A delay or omission by any Security holder in
exercising any right or remedy accruing as a result of the Issuer's failure to
perform its obligations hereunder or under the Fiscal Agency Agreement and the
continuation thereof shall not impair such right or remedy or constitute a
waiver of or acquiescence in such non-performance by the Issuer. To the extent
permitted by law, no remedy is exclusive of any other remedy and all remedies
are cumulative.
(c) Notwithstanding any other provision of this Security or
the Fiscal Agency Agreement, the right of any holder of Securities to receive
payment of the principal of and interest on such holder's Securities on or after
the respective Scheduled Interest Payment Dates or Scheduled Maturity Date
expressed in such Securities, or to bring suit for the enforcement of any such
payment on or after such respective Scheduled Interest Payment Dates or
Scheduled Maturity Date, in each case subject to such payment on such dates
having received the approval of the Superintendent pursuant to the Payment
Restrictions, including the approval of the Superintendent pursuant to Section
1307, is absolute and unconditional and shall not be impaired or affected
without the consent of the holder.
17. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, subject to the Payment Restrictions, to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
44
IN WITNESS WHEREOF, the parties hereto have executed this
Fiscal Agency Agreement as of the date first above written.
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By:
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
By:/s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President
Attest:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
45
EXHIBIT B
FORM OF GLOBAL SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH
MAY HEREAFTER BE AMENDED FROM TIME TO TIME, "RULE 144A").
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF DEPOSITARY] TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IN EXCHANGE FOR THIS
SECURITY OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF [INSERT NAME OF
NOMINEE OF DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] (AND ANY PAYMENT IS MADE TO
(INSERT NAME OF NOMINEE OF DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY]), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN
[INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, [INSERT NAME OF NOMINEE OF DEPOSITARY], HAS AN
INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL
AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL SECURITY MAY NOT BE
EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY
PERSON OTHER THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY AGREEMENT,
AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 6(B) OF THE FISCAL AGENCY AGREEMENT.
BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
46
EXCEPT IN ACCORDANCE WITH SECTION 6(B) OF THE FISCAL AGENCY AGREEMENT.
[INCLUDE IF SECURITY IS A RESTRICTED GLOBAL SECURITY OR SECURITY
ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(G) OF THE FISCAL
AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)] -- THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK ("MONY") THAT (A) THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) BY THE INITIAL INVESTOR (I) IN A
MINIMUM PRINCIPAL AMOUNT OF $250,000 TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (OR ANY
SUCCESSOR PROVISION THERETO, AND AS MAY HEREAFTER BE AMENDED FROM TIME TO TIME)
UNDER THE ACT, IN A TRANSACTION IN ACCORDANCE WITH RULE 144A, (II) IN AN
OFFSHORE TRANSACTION IN A MINIMUM PRINCIPAL AMOUNT OF $500,000 IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION, AND
AS MAY HEREAFTER BE AMENDED FROM TIME TO TIME, "REGULATION S") UNDER THE ACT OR
(III) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (OR ANY
SUCCESSOR PROVISION THERETO, AND AS MAY HEREAFTER BE AMENDED FROM TIME TO TIME)
UNDER THE ACT (IF AVAILABLE) OR (2) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (1)
ABOVE AND, IN ADDITION, IN A MINIMUM PRINCIPAL AMOUNT OF $500,000 TO AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR," AS DEFINED IN RULE
501(a) (1), (2), (3) OR (7) UNDER THE ACT, IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES, AND (B) THAT THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF MONY THAT, IF
THE HOLDER PROPOSES TO SELL OR TRANSFER THIS SECURITY TO ANY EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED), THE HOLDER WILL COMPLY WITH THE RESTRICTIONS SET FORTH IN
PARAGRAPH 10 HEREOF.
ALL PAYMENTS OF PRINCIPAL (INCLUDING ANY PREMIUM WITH RESPECT TO ANY
REDEMPTION) AND INTEREST ON THIS SECURITY MAY ONLY BE MADE OUT OF THE FREE AND
DIVISIBLE SURPLUS OF MONY AND WITH THE PRIOR APPROVAL OF THE SUPERINTENDENT OF
INSURANCE OF THE STATE OF NEW YORK (THE "SUPERINTENDENT"), IN
47
ACCORDANCE WITH SECTION 1307 OF THE NEW YORK INSURANCE LAW (TOGETHER WITH ANY
SUCCESSOR PROVISION, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "SECTION
1307"). THERE ARE NO GUIDELINES OR INTERPRETATIONS AS TO THE EXTENT OF THE
SUPERINTENDENT'S DISCRETION UNDER SECTION 1307 IN DETERMINING WHETHER THE
FINANCIAL CONDITION OF MONY WARRANTS THE MAKING OF SUCH PAYMENTS.
IF THE NOTES MATURE PRIOR TO THE FINAL SCHEDULED MATURITY DATE SET
FORTH HEREIN, THE CLAIM OF A HOLDER OF NOTES WITH RESPECT TO THE PRINCIPAL
AMOUNT THEREOF WILL BE LIMITED TO AN AMOUNT EQUAL TO THE "ACCRETED VALUE" OF THE
NOTES, AS DESCRIBED IN PARAGRAPH 7 HEREOF, WHICH AMOUNT WILL FOR ALL PERIODS
PRIOR TO AUGUST 15, 1999 BE LESS THAN 100% OF THE PRINCIPAL AMOUNT AT MATURITY
OF THE NOTES.
THE NOTES WILL BE ISSUED AT AN ISSUE PRICE OF $578.54 PER $1,000
PRINCIPAL AMOUNT, WHICH REPRESENTS A DISCOUNT OF 42.146% FROM THE PRINCIPAL
AMOUNT PAYABLE AT MATURITY. CONSEQUENTLY, PURCHASERS OF THE NOTES SHOULD BE
AWARE THAT, ALTHOUGH CASH INTEREST WILL NOT ACCRUE ON THE NOTES PRIOR TO AUGUST
15, 1999, AND CASH INTEREST IS NOT SCHEDULED TO BE PAID ON THE NOTES PRIOR TO
FEBRUARY 15, 2000, ORIGINAL ISSUE DISCOUNT WILL ACCRUE FROM THE ISSUE DATE OF
THE NOTES AND WILL BE INCLUDIBLE AS INTEREST INCOME PERIODICALLY (INCLUDING FOR
PERIODS ENDING PRIOR TO FEBRUARY 15, 2000) IN A HOLDER'S GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF WHETHER THE HOLDER HAS RECEIVED
THE CASH PAYMENTS TO WHICH THE INCOME IS ATTRIBUTABLE.
48
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
11 1/4% Surplus Note scheduled to mature on August 15, 2024
CUSIP NO.: ________
No. R- _____ $125,000,000
Issue Date: August 15, 1994
Issue Price: $578.54
Original Issue Discount: $421.46
Yield to Maturity: 11 1/4%
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a mutual life
insurance company organized under the laws of the State of New York (herein
called the "Issuer"), for value received, hereby promises to pay, subject to the
approval of the Superintendent pursuant to Section 1307, to __________, or
registered assigns, the principal sum of ____________United States dollars ($
________ ), or such other amount (not to exceed one hundred and twenty five
million dollars ($125,000,000) when taken together with all of the Issuer's 11
1/4% Surplus Notes scheduled to mature on August 15, 2024 issued and outstanding
in definitive certificated form or in the form of another Global Security) as
may from time to time represent the principal amount of the Issuer's 11 1/4%
Surplus Notes scheduled to mature on August 15, 2024 in respect of which
beneficial interests are held through the Depositary in the form of a Restricted
Global Security, on August 15, 2024 (the "Final Scheduled Maturity Date"), and
to pay interest thereon, subject to the approval of the Superintendent pursuant
to Section 1307, from August 15, 1999 or from the most recent Scheduled Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on February 15 and August 15 in each year, commencing February 15,
2000 (each a "Scheduled Interest Payment Date", which term shall also include
any other dates on which the payment of interest herein may be due in accordance
with paragraph 4(a) hereof), at the rate of 11 1/4% per annum, until the
principal hereof is paid or duly provided for. Any reference herein to the term
"principal" or the "principal amount" of this Security shall include the amount
of premium, if any, payable upon redemption hereof in accordance with paragraph
15 hereof. Any reference herein to the term "Scheduled Maturity Date" or other
date for the payment of principal of this Security shall include the Final
Scheduled Maturity Date and the date, if any, fixed for redemption hereof in
accordance with paragraph 15 hereof. The date upon which any state or federal
agency obtains an order or grants approval for the rehabilitation, liquidation,
conservation or dissolution of the Issuer shall also be deemed to be the
Scheduled Maturity Date of this Security. As specified on the reverse hereof,
all payments of principal of (and premium, if any, on) or interest on this
Security may be made only out of the Issuer's free and divisible surplus and
only with the prior approval of the Superintendent. The interest so payable, and
punctually paid or duly provided for,
B-4
49
on any Scheduled Interest Payment Date shall be paid, in accordance with the
terms of the Fiscal Agency Agreement hereinafter referred to, to the person (the
"registered holder") in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the January 31 or July 31
(whether or not a business day), as the case may be (each a "Regular Record
Date"), next preceding such Scheduled Interest Payment Date. Interest on the
Securities shall be calculated on the basis of a 360-day year of twelve 30-day
months. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the registered holder on such Regular Record
Date and shall be paid to the person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a special
record date for the payment of such interest to be fixed by the Issuer, notice
whereof shall be given to registered holders of the Securities not less than 15
days prior to such special record date.
Interest on this Security will not accrue until August 15,
1999, except in the event the Accreted Value (as defined in Section 7 hereof)
hereof shall become immediately due and payable prior to such date in accordance
with paragraph 16(a) hereof, in which case such Accreted Value (the amount of
which shall be calculated in accordance with paragraph 7 hereof) shall bear
interest at the rate of 11 1/4% per annum from the date such amount is due until
paid or duly provided for; provided, however, that interest will not accrue or
be payable upon any such interest with respect to any such Accreted Value
amounts.
Principal of this Security shall be payable against surrender
hereof at the corporate trust office of the Fiscal Agent hereinafter referred to
and at the offices of such other Paying Agents as the Issuer shall have
appointed pursuant to the Fiscal Agency Agreement. Payments of principal of the
Securities shall be made only against surrender of the Securities. Payments of
interest on this Security may be made, in accordance with the foregoing and
subject to applicable laws and regulations, by check mailed on or before the
Scheduled Interest Payment Date of such payment to the person entitled thereto
at such person's address appearing on the aforementioned register. In the case
of a registered holder of at least $5,000,000 aggregate principal amount of
Securities, payments of principal or interest may be made by wire transfer to an
account maintained by the payee with a bank if such registered holder so elects
by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days
as the Fiscal Agent may accept at its discretion) prior to the applicable
Scheduled Interest Payment Date or Scheduled Maturity Date hereof, of such
election and of the account to which payments are to be made. Unless such
designation is revoked, any such designation made by such holder with respect to
such Securities shall remain in effect with respect to any future payments with
respect to such Securities payable to such holder. The Issuer agrees that until
this Security has been delivered to the Fiscal Agent for cancellation, or monies
sufficient to pay the full principal of and interest remaining unpaid on this
Security have been made available for payment and either paid or returned to the
Issuer as provided herein, it will at all times maintain offices or agencies in
the Borough of Manhattan, The City of New York for the payment of the principal
of and interest on the Securities as herein provided.
B-5
50
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security may be executed by the Issuer by manual or
facsimile signatures, and such signatures may be executed on separate
counterparts.
Unless the certificate of authentication hereon has been
executed by the Fiscal Agent by manual signature, this Security shall not be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated:
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
This is one of the Securities referred to in the
within-mentioned Fiscal Agency Agreement.
THE CHASE MANHATTAN BANK, N.A.,
as Fiscal Agent
By:
-----------------------------------
Authorized Officer
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51
FORM OF REVERSE
1. This Security is one of a duly authorized issue of 11 1/4%
Surplus Notes scheduled to mature on August 15, 2024 of the Issuer (herein
called the "Securities" or "Notes"), limited in aggregate principal amount to
$125,000,000. The Issuer and The Chase Manhattan Bank, N.A. (as "Fiscal Agent")
have entered into a Fiscal Agency Agreement, dated as of August 15, 1994 (such
instrument, as it may be duly amended from time to time, is herein called the
"Fiscal Agency Agreement"), which provides for the mechanism for issuing the
Securities and, inter alia, sets forth certain duties of the Fiscal Agent in
connection therewith. As used herein, the term "Fiscal Agent" includes any
successor fiscal agent under the Fiscal Agency Agreement. Copies of the Fiscal
Agency Agreement are on file and available for inspection at the corporate trust
office of the Fiscal Agent in the Borough of Manhattan, The City of New York.
Holders of Securities are referred to the Fiscal Agency Agreement for a
statement of the terms thereof, including those relating to transfer, payment,
exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall
also act as Transfer Agent and Securities registrar. Terms used herein which are
defined in the Fiscal Agency Agreement but not otherwise defined herein shall
have the meanings assigned to such terms in the Fiscal Agency Agreement.
The Securities are direct and unsecured obligations of the
Issuer and, subject to the payment restrictions contained in paragraphs 4 and 11
hereof (the "Payment Restrictions"), are scheduled to mature on August 15, 2024.
Section 1307 provides that the Securities are not part of the legal liabilities
of the Issuer and are not a basis of any set-off against the Issuer.
2. The Securities are issuable only in fully registered form
without coupons. Securities are issuable in minimum denominations of $[250,000]
$[500,000] and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The
City of New York, a Transfer Agent where Securities may be registered or
surrendered for registration of transfer or exchange. The Issuer has initially
appointed the Corporate Trust Office of the Fiscal Agent as its Transfer Agent
in the Borough of Manhattan, The City of New York. The Issuer shall cause each
Transfer Agent to act as a Securities registrar and shall cause to be kept at
the office of each Transfer Agent a register in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and registration of transfers of Securities. The
Issuer reserves the right to vary or terminate the appointment of any Transfer
Agent or to appoint additional or other Transfer Agents or to approve any change
in the office through which any Transfer Agent acts, provided that there shall
at all times be a Transfer Agent in the Borough of Manhattan, The City of New
York. The Issuer shall cause notice of any resignation, termination or
appointment of the Fiscal Agent or any Paying
B-7
52
Agent or Transfer Agent and of any change in the office through which any such
Agent shall act to be provided to holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, the transfer of a Security is registrable on the
aforementioned register upon surrender of such Security at any Transfer Agent
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer duly executed by, the registered holder thereof or
his attorney duly authorized in writing. Upon such surrender of this Security
for registration of transfer, the Issuer shall execute, and the Fiscal Agent
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, dated the date of authentication
thereof, of any authorized denominations and of a like aggregate principal
amount.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, at the option of the registered holder upon request confirmed
in writing, Securities may be exchanged for Securities of any authorized
denominations and aggregate principal amount upon surrender of the Securities to
be exchanged at the office of any Transfer Agent. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver, the Securities which the registered holder making the
exchange is entitled to receive. Any registration of transfer or exchange shall
be effected upon the Issuer being satisfied with the documents of title and
identity of the person making the request and subject to the restrictions set
forth in the immediately following paragraph and such reasonable regulations as
the Issuer may from time to time agree with the Fiscal Agent.
Securities may be redeemed by the Issuer, in whole or in part,
but only to the extent permitted by the Payment Restrictions, including the
prior approval of the Superintendent, in accordance with paragraph 15 hereof. In
the event of a partial redemption, the Issuer shall not be required (i) to
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the date notice is given identifying the
Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security, or portion thereof, called for redemption.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits, as the Securities surrendered
upon such registration of transfer or exchange. No service charge shall be made
for any registration of transfer or exchange, but the Issuer 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 Security for registration of
transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal
Agent may treat the person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected
by notice to the contrary.
B-8
53
4. (a) Notwithstanding anything to the contrary set forth
herein or in the Fiscal Agency Agreement, any payment of principal of, interest
on or any monies owing with respect to this Security, whether at the Scheduled
Interest Payment Date or Scheduled Maturity Date specified herein or otherwise,
may be made only (i) out of the free and divisible surplus of the Issuer which
the Superintendent determines to be available for such payments under Section
1307 and (ii) with the prior approval of the Superintendent whenever, in his
judgment, the financial condition of the Issuer warrants such payment, in
accordance with Section 1307. If the Superintendent does not approve the making
of any payment of principal of or interest on this Security on the Scheduled
Interest Payment Date or Scheduled Maturity Date thereof, as specified herein,
the Scheduled Interest Payment Date or Scheduled Maturity Date, as the case may
be, shall be extended and such payment shall be made by the Issuer on the next
following Business Day on which the Issuer shall have the approval of the
Superintendent to make such payment. Interest will continue to accrue on any
such unpaid principal through the actual date of payment at the rate of interest
stated on the face hereof. Interest will not accrue on interest with respect to
which the Scheduled Interest Payment Date has been extended, during the period
of such extension. If the Superintendent approves a payment of principal of or
interest on the Securities in an amount that is less than the full amount of
principal of and interest on the Securities then scheduled to be paid in respect
of the Securities, payment of such partial amount shall be made pro rata among
Security holders as their interests may appear.
(b) Any payment of principal of or interest on any Security as
to which the approval of the Superintendent has been obtained and which is not
punctually paid or duly provided for on the Scheduled Interest Payment Date or
Scheduled Maturity Date thereof, as set forth herein (such payment being
referred to as an "Unpaid Amount"), will forthwith cease to be payable to the
registered owner of this Security on the relevant record date designated herein,
and such Unpaid Amount will instead be payable to the registered owner of this
Security on a subsequent special record date. The Issuer shall fix the special
record date and payment date for the payment of any Unpaid Amount. At least 15
days before the special record date, the Issuer shall mail to each holder of the
Securities and the Fiscal Agent a notice that states the special record date,
payment date and amount of interest or principal to be paid. On the payment date
set forth in such notice, the Paying Agent shall pay the amount of interest or
principal to be so paid to each holder of the Securities in the manner set forth
in Section 4(a) of the Fiscal Agency Agreement.
5. (a) For so long as the Fiscal Agent is acting as a Paying
Agent hereunder, the Issuer shall provide, subject to the Payment Restrictions,
to the Fiscal Agent in immediately available funds on or prior to 10:00 a.m.,
New York time, of each date on which a payment of principal of or any interest
on this Security is payable, as set forth herein, such amounts as are necessary
(with any amounts then held by the Fiscal Agent and available for the purpose)
to make such payment, and the Issuer hereby authorizes and directs the Fiscal
Agent from funds so provided to it to make or cause to
B-9
54
be made payment of the principal of and any interest, as the case may be, on
this Security as set forth herein and in the Fiscal Agency Agreement. Payments
of principal of or any interest on the Securities may be made, in the case of a
registered holder of at least $5,000,000 principal amount of Securities, by wire
transfer to an account maintained by the payee with a bank if such registered
holder so elects by giving notice to the Fiscal Agent, not less than 15 days (or
such fewer days as the Fiscal Agent may accept at its discretion) prior to the
date on which such payments are scheduled to be made, of such election and of
the account to which payments are to be made. Unless such designation is
revoked, any such designation made by such holder with respect to such
Securities shall remain in effect with respect to any future payments with
respect to such Securities payable to such holder. The Issuer shall pay any
reasonable administrative costs in connection with making any such payments. The
Fiscal Agent shall arrange directly with any other Paying Agent who may have
been appointed by the Issuer pursuant to the provisions of Section 2 of the
Fiscal Agency Agreement for the payment from funds so paid by the Issuer of the
principal of and any interest on this Security. Any monies held in respect of
this Security remaining unclaimed at the end of two years after such principal
and such interest shall have become payable in accordance with the Payment
Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies
sufficient therefor shall have been duly made available for payment shall,
together with any interest made available for payment thereon, be repaid to the
Issuer upon written request and upon such repayment all liability of the Fiscal
Agent with respect thereto shall cease, without, however, limiting in any way
any obligation the Issuer may have to pay the principal of and interest on this
Security, subject to the Payment Restrictions.
(b) In any case where the Scheduled Interest Payment Date or
Scheduled Maturity Date of any Security shall be at any place of payment a day
on which banking institutions are not carrying out transactions in U.S. dollars
or are authorized or obligated by law or executive order to close, then payment
of principal or interest need not be made on such date at such place but may be
made on the next succeeding day at such place which is not a day on which
banking institutions in the applicable jurisdiction are generally authorized or
obligated by law or executive order to close (a "Business Day"), with the same
force and effect as if made on the Scheduled Interest Payment Date or Scheduled
Maturity Date thereof, and no interest shall accrue for the period after such
date.
6. The Issuer shall pay all stamp and other duties, if any,
which may be imposed by the United States of America or any governmental entity
or any political subdivision thereof or taxing authority of or in the foregoing
with respect to the Fiscal Agency Agreement or the initial issuance of this
Security. Except as otherwise specifically provided in this Security, the Issuer
shall not be required to make any payment with respect to any tax, duty,
assessment or other governmental charge of whatever nature imposed or levied by
any government or any political subdivision or taxing authority thereof or
therein.
▇-▇▇
▇▇
▇. In the event that, pursuant to any provisions of this
Security or the Fiscal Agency Agreement, the principal in respect of this
Security shall mature prior to the Final Scheduled Maturity Date, the principal
amount so matured shall be equal to the Accreted Value hereof. The "Accreted
Value" shall be equal to the sum of (i) the issue price of this Security as
determined in accordance with Section 1273 of the Internal Revenue Code, as
amended from time to time (the "Code"), plus (ii) the aggregate of the portions
of the original issue discount (the excess of the amounts considered as part of
the "stated redemption price at maturity" within the meaning of Section 1273(a)
(2) of the Code or any successor provisions, whether denominated as principal or
interest, over the issue price) that shall theretofore have accrued pursuant to
Section 1272 of the Code (without regard to Section 1272(a)(7) of the Code)
from the date of issue (a) for each six-month or shorter period ending February
15 or August 15 prior to the date of determination and (b) for the shorter
period, if any, from the end of the immediately preceding six-month or shorter
period, as the case may be, to the date of determination, minus all amounts
theretofore paid in respect of this Security, which amounts are considered as
part of the "stated redemption price at maturity" of this Security within the
meaning of Section 1273(a)(2) of the Code or any successor provisions (whether
such amounts paid were denominated principal or interest).
8. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities,
(a) Except with respect to transactions covered by paragraph 9
hereof, the Issuer will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, material rights
(charter and statutory) and franchise; provided, however, that the Issuer 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 Issuer and that the Issuer has used its
best efforts to not disadvantage in any material respect the holders of the
Securities, or that not preserving such right or franchise is in the best
interest of the policyholders of the Issuer having considered the interests of
the holders of the Securities.
(b) The Issuer will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), if such action would cause the
Issuer to be in violation of the Investment Company Act at any time prior to
payment in full of the Securities.
(c) The Issuer shall use its best efforts to obtain the
approval of the Superintendent in accordance with Section 1307 for the payment
by the Issuer of interest on and principal of the Securities on the Scheduled
Interest Payment Dates or Scheduled Maturity Dates thereof, and, in the event
any such approval has not been obtained for any such payment at or prior to the
Scheduled Interest Payment Date
B-11
56
or Scheduled Maturity Date thereof, as the case may be, to continue to use its
best efforts to obtain such approval promptly thereafter. Not less than 45 days
prior to the Scheduled Interest Payment Date or Scheduled Maturity Date thereof
(excluding any such Scheduled Maturity Date which arises as a result of the
obtaining of an order or the granting of approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer), the Issuer will seek
the approval of the Superintendent to make each payment of interest on and
principal of the Securities. In addition, the Issuer shall notify or cause to be
notified each holder and the Fiscal Agent no later than 5 Business Days (as
defined herein) prior to the Scheduled Interest Payment Date for interest on or
the Scheduled Maturity Date for principal of any Security (excluding any such
Scheduled Maturity Date which arises as a result of the obtaining of an order or
the granting of approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer) in the event that the Superintendent has not then
approved the making of any such payment on such Scheduled Interest Payment Date
or such Scheduled Maturity Date, and thereafter shall promptly notify each
holder and the Fiscal Agent in the event that the Issuer shall have failed to
make any such payment on any such Scheduled Interest Payment Date or such
Scheduled Maturity Date. Without limiting the Issuer's obligations set forth in
this paragraph, it is understood that, to the extent authorized by the Issuer's
Board of Directors, the Issuer may continue to declare policyowner dividends and
to make dividend payments on its participating policies even though payments on
the Securities may not have been approved by the Superintendent, regardless of
the effect any such declaration or payment may have on the Superintendent's
decision regarding payment of interest on or principal of the Securities.
9. For so long as any of the Securities remain Outstanding or
any amounts remain unpaid on any of the Securities, the Issuer may convert
itself from a mutual life insurance company into a stock life insurance company
(such conversion, a "demutualization"), merge or consolidate with or into any
other corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any person, firm or corporation, if (i)(A)
in the case of a merger or consolidation, the Issuer is the surviving
corporation or (B) in the case of a merger or consolidation where the Issuer is
not the surviving corporation and in the case of any such sale, conveyance,
transfer or other disposition, the successor corporation is a corporation
organized and existing under the laws of the United States or a State thereof
and such corporation expressly assumes by supplemental fiscal agency agreement
all the obligations of the Issuer under the Securities and the Fiscal Agency
Agreement, (ii) at the time of any such demutualization, merger or
consolidation, or such sale, conveyance, transfer or other disposition, the
Issuer shall not have failed to make payment of interest on or principal of the
Securities after having received the Superintendent's prior approval to make
such payment and (iii) the Issuer has delivered to the Fiscal Agent an Officer's
Certificate stating that such demutualization, merger, consolidation, sale,
conveyance, transfer or other disposition complies with this paragraph and that
all conditions precedent herein provided for relating to such transaction have
been complied with. In the event of the assumption by a successor corporation of
the obligations of the Issuer as provided in clause (i)(B) of the immediately
preceding sentence, such successor corporation shall succeed to and be
substituted for the Issuer hereunder and under the Fiscal Agency Agreement and
all such obligations of the Issuer shall terminate.
B-12
57
10. No employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the prohibited transaction provisions of the Internal Revenue Code
of 1986, as amended (the "Code"), as to which the Issuer is a party in interest
or a disqualified person (each a "Plan"), and no Person acting on behalf of a
Plan, may acquire this Security, unless the acquisition of the Security is
exempt under one or more of Prohibited Transaction exemptions 84-14, 90-1 or
91-38 (or any amendment thereof) or another applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
purchase by any Person of this Security shall constitute a representation by
such Person to the Issuer and the Fiscal Agent that such Person either (i) is
not a Plan or (ii) is a Plan, and may acquire this Security under an applicable
exemption from the prohibitions under Section 406 of ERISA and Section 4975 of
the Code. The restrictions on purchases of the Securities set forth in this
paragraph 10 are in addition to those other-wise set forth in Section 6 of the
Fiscal Agency Agreement and under applicable law.
11. (a) The Issuer agrees, and each Security holder by
accepting a Security agrees, that the indebtedness evidenced by the Securities
is subordinated in right of payment, to the extent and in the manner provided in
this paragraph, to the prior payment in full of all Indebtedness, Policy Claims
and Other Creditor Claims (each as hereinafter defined), in accordance with
Section 7435 of the New York Insurance Law (together with any successor
provision, and as may be hereafter amended from time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation, conservation, dissolution or reorganization
proceeding relating to the Issuer or its property, the priority of claims of
Security holders shall be determined in accordance with Section 7435. In a
proceeding commenced under Article 74 of the New York Insurance Law, claims for
principal of or interest on the Securities constitute Class 7 claims under
Section 7435, as currently in effect. If the Superintendent approves a payment
of principal of or interest on the Securities in an amount that is less than the
full amount of principal of and interest on the Securities then scheduled to be
paid in respect of the Securities, payment of such partial amount shall be made
pro rata among Security holders as their interests may appear.
(c) If a distribution is made to Security holders that,
because of this paragraph, should not have been made to them, the Security
holders who receive the distribution shall hold it in trust for holders of
Policy Claims, Indebtedness and Other Creditor Claims and pay it over to them as
their interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the
Paying Agent of any facts known to the Issuer that would cause a payment of
principal of or interest on the Securities to violate this paragraph.
(e) This paragraph defines the relative rights of Security
holders, on the one hand, and holders of any other claims, in accordance with
Section 7435, on the
B-13
58
other hand. Nothing in this Security or the Fiscal Agency Agreement shall (i)
impair, as between the Issuer and Security holders, the obligation of the Issuer
which is, subject to the Payment Restrictions, absolute and unconditional to pay
principal of and interest on the Securities in accordance with their terms; (ii)
affect the relative rights of Security holders and creditors of the Issuer,
other than holders of Policy Claims, Indebtedness or Other Creditor Claims; or
(iii) prevent the Fiscal Agent or any Security holder from exercising any
available remedies upon a breach by the Issuer of its obligations hereunder,
subject to the rights of holders of Policy Claims, Indebtedness or Other
Creditor Claims to receive distributions otherwise payable to Security holders.
(f) No right of any holder of Policy Claims, Indebtedness or
Other Creditor Claims to enforce the subordination of the indebtedness evidenced
by the Securities shall be impaired by any act or failure to act by the Issuer
or by its failure to comply with the terms of this Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof,
authorizes and directs the Fiscal Agent on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all
such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i)
all existing or future indebtedness of the Issuer for borrowed money, (ii) all
existing or future indebtedness for borrowed money of other persons, the payment
of which is guaranteed by the Issuer, (iii) all existing or future obligations
of the Issuer under any agreement obligating the Issuer to cause another person
to maintain a minimum level of net worth, or otherwise to ensure the solvency of
such person and (iv) any expense or any claim or amount, to the extent that
payment of principal of and interest on the Securities is required by law to be
subordinated to the prior payment thereof. Any obligation of the Issuer which by
its express terms is subordinated in right of payment to, or ranks equally with,
the Securities, or any indebtedness or other obligation of any separate account
of the Issuer, shall not constitute Indebtedness. However, under current law the
Issuer cannot incur any indebtedness which by its terms is subordinate to the
Securities. In addition, any other surplus notes or similar obligations of the
Issuer shall not constitute Indebtedness and will rank pari passu with the
Securities.
As used herein, "Policy Claims" shall mean all existing or
future claims of policyholders or beneficiaries, as the case may be, under any
and all existing or future policies, endorsements, riders and other contracts of
insurance, annuity contracts (including, without limitation, guaranteed
investment contracts) and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or hereafter created, all claims arising
under separate account agreements to the extent such claims are not fully
discharged by the assets held by the Issuer in the applicable separate accounts
and all claims of The Life Insurance Company Guaranty Corporation of New York or
any other guaranty corporation or association of New York or any other
jurisdiction, other
B-14
59
than claims described in clause (i) of the definition of "Other Creditor Claims"
below and claims for interest.
As used herein, "Other Creditor Claims" shall mean all other
claims which, pursuant to Section 7435, have priority over claims with respect
to the Securities. Under Section 7435 as currently in effect, such other claims
include (i) claims with respect to the actual and necessary costs and expenses
of administration incurred by a liquidator, conservator, rehabilitator or
ancillary rehabilitator under Section 7435; (ii) claims with respect to the
actual and necessary costs and expenses of administration incurred by The Life
Insurance Guaranty Corporation or The Life Insurance Company Guaranty
Corporation of New York; (iii) claims of The Life Insurance Company Guaranty
Corporation for certain funds loaned to the Superintendent under Section 7713(d)
of the New York Insurance Law; (iv) debts up to $1,200 due to employees for
services performed within one year of the commencement of rehabilitation,
liquidation, conservation, dissolution or reorganization proceedings; (v) claims
for payment for goods furnished or services rendered in the ordinary course of
business within 90 days of the declaration of the impairment or insolvency of
the Issuer; (vi) claims of the federal or any state or local government (except
in the case of claims for a penalty or forfeiture which are included only to the
extent of pecuniary loss and reasonable costs occasioned by the act giving rise
to the forfeiture or penalty); and (vii) claims of general creditors and all
other claims having priority under Section 7435.
12. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities, the Issuer shall, in
accordance with Rule 144A, comply with the terms of the agreements set forth in
Section 7 of the Fiscal Agency Agreement. The provisions of Sections 7 and 8 of
the Fiscal Agency Agreement are hereby incorporated mutatis mutandis herein.
13. In case this Security shall become mutilated, defaced,
destroyed, lost or stolen, the Issuer will execute and upon the Issuer's request
the Fiscal Agent shall authenticate and deliver a new Security, having a number
not contemporaneously outstanding, of like tenor (including the same date of
issuance) and equal principal amount, registered in the same manner, dated the
date of its authentication and bearing interest from the date to which interest
has been paid on this Security, in exchange and substitution for this Security
(upon surrender and cancellation thereof) or in lieu of and substitution for
this Security. In the case where this Security is destroyed, lost or stolen, the
applicant for a substituted Security shall furnish to the Issuer such security
or indemnity as may be required by the Issuer to save it and the Fiscal Agent
harmless, and, in every case of destruction, loss or theft of this Security, the
applicant shall also furnish to the Issuer satisfactory evidence of the
destruction, loss or theft of this Security and of the ownership thereof;
provided, however, that if the registered holder hereof is, in the judgment of
the Issuer, an institution of recognized responsibility, such holder's written
agreement of indemnity shall be deemed to be satisfactory for the issuance of a
new Security in lieu of and substitution for this Security. The Fiscal Agent
shall authenticate any such substituted Security and deliver the same only upon
written request or
B-15
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authorization of the Issuer. Upon the issuance of any substituted Security, the
Issuer may require the payment by the registered holder thereof of a sum
sufficient to cover fees and expenses connected therewith. In case this Security
has matured or is about to mature and shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except if this Security is mutilated or defaced)
upon compliance by the registered holder with the provisions of this paragraph
13 as hereinabove set forth.
14. Section 10 of the Fiscal Agency Agreement, which Section
is hereby incorporated mutatis mutandis by reference herein, provides that, with
certain exceptions as therein provided and with the consent of the holders of a
majority of the principal amount of the Outstanding Securities present at a
meeting duly called pursuant thereto or by written consent of such percentage of
the principal amount of all Outstanding Securities, the Issuer and the Fiscal
Agent may, with the prior approval of the Superintendent, modify, amend or
supplement the Fiscal Agency Agreement or the terms of the Securities or may
give consents or waivers or take other actions with respect thereto. Any such
modification, amendment, supplement, consent, waiver or other action shall be
conclusive and binding on the holder of this Security and on all future holders
of this Security and of any Security issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation
thereof is made upon this Security. The Fiscal Agency Agreement and the terms of
the Securities may, with the prior approval of the Superintendent, be modified
or amended by the Issuer and the Fiscal Agent, without the consent of any
holders of Securities, for the purpose of (a) adding to the covenants of the
Issuer for the benefit of the holders of Securities, or (b) surrendering any
right or power conferred upon the Issuer, or (c) securing the Securities
pursuant to the requirements hereof, thereof or otherwise, or (d) evidencing the
succession of another corporation to the Issuer and the assumption by such
successor of the covenants and obligations of the Issuer herein and in the
Fiscal Agency Agreement as permitted by the Securities and the Fiscal Agency
Agreement, or (e) modifying the restrictions on, and procedures for, resale and
other transfers of the Securities to the extent required or permitted by any
change in applicable law or regulation (or the interpretation thereof) or in
practices relating to the resale or transfer of restricted securities generally,
or (f) accommodating the issuance, if any, of Securities in book-entry or
certificated form and matters related thereto which do not adversely affect the
interest of any Security holder in any material respect, or (g) curing any
ambiguity or correcting or supplementing any defective provision contained
herein or in the Fiscal Agency Agreement in a manner which does not adversely
affect the interest of any Security holder in any material respect, or (h)
effecting any amendment which the Issuer and the Fiscal Agent may determine is
necessary or desirable and which shall not adversely affect the interest of any
Security holder, to all of which each holder of any Security, by acceptance
thereof, consents.
15. (a) Subject to the Payment Restrictions and the prior
approval of the Superintendent, up to $31,250,000 of the aggregate principal
amount of the Securities may be redeemed at the option of the Issuer, in each
twelve-month period
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commencing August 15, 2021, at any time upon not more than 60 days' nor less
than 30 days' notice as herein provided, at the following Redemption Prices
(expressed as percentages of the principal amount), in each case together with
accrued interest (except if the date of such redemption is a Scheduled Interest
Payment Date) to the date of redemption, during the twelve-month period
beginning August 15 of the years indicated:
Year Redemption Price
2021 100%
2022 100%
2023 100%
Interest installments the payment of which have been approved by the
Superintendent and which are payable on or prior to such date of redemption will
be payable to the holders of such Securities of record at the close of business
on the relevant Record Dates set forth herein.
(b) In the case of any partial redemption of Securities, the
Securities to be redeemed shall be selected by the Fiscal Agent not less than 30
days prior to the date of such redemption, from the Outstanding Securities not
previously called for redemption, by such method as the Fiscal Agent shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities of a denomination larger than $250,000.
(c) Notices to redeem Securities shall be given to holders of
Securities in writing mailed, first-class postage prepaid, to each holder of
Securities, or portions thereof, so to be redeemed, at his address as it appears
in the Security Register. Such notice will be given once not more than 60 days
nor less than 30 days prior to the date fixed for redemption, and shall be
deemed to have been given on the date of mailing. If by reason of the suspension
of regular mail service, or by reason of any other cause, it shall be
impracticable to give notice to the holders of Securities in the manner
prescribed herein, then such notification in lieu thereof as shall be made by
the Issuer or by the Fiscal Agent on behalf of and at the instruction of the
Issuer shall constitute sufficient provision of such notice, if such
notification shall, so far as may be practicable, approximate the terms and
conditions of the mailed notice in lieu of which it is given. Neither the
failure to give notice nor any defect in any notice given to any particular
holder of a Security shall affect the sufficiency of any notice with respect to
other Securities. Notices to redeem Securities shall specify the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of the Securities to be redeemed
(or portion thereof in the case of a partial redemption), that interest accrued
to the date fixed for redemption (unless the date of redemption is a Scheduled
Interest Payment Date) will be paid as specified in said notice, and that on and
after said date interest thereon will cease to accrue if the Securities are so
redeemed. In addition, in the case of a partial redemption, the Redemption
Notice
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shall specify the Securities called for redemption and the aggregate principal
amount of the Securities to remain Outstanding after the redemption.
(d) If notice of redemption has been given in the manner set
forth in paragraph 15(c) hereof, the Securities so to be redeemed shall, subject
to the Payment Restrictions, be payable in full on the date specified in such
notice and upon presentation and surrender of the Securities at the place or
places specified in such notice, the Securities shall be paid and redeemed by
the Issuer at the places and in the manner and currency herein specified and at
the redemption price together with accrued interest (unless the redemption date
is a Scheduled Interest Payment Date) to the redemption date. From and after the
redemption date, if monies for the redemption of Securities called for
redemption shall have been made available at the Principal Office of the Fiscal
Agent for redemption on the redemption date, the Securities called for
redemption shall cease to bear interest, and the only right of the holders with
respect to such Securities or portion thereof being redeemed shall be to receive
payment of the redemption price together with accrued interest (unless the
redemption date is an Interest Payment Date) to the redemption date as
aforesaid. If monies for the redemption of the Securities are not made available
for payment until after the redemption date, the Securities called for
redemption shall not cease to bear interest until such monies have been so made
available.
(e) Any Security which is to be redeemed only in part shall be
surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Fiscal Agent duly executed by, the holder thereof or his attorney duly
authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver to the holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such holder, and as permitted by Section 1(d) of the Agreement, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
16. Holders of Securities may enforce the Fiscal Agency
Agreement or the Securities only in the manner set forth below.
(a) In the event that any state or federal agency shall obtain
an order or grant approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer, the Securities will upon the obtaining of such an
order or the granting of such approval immediately mature in full (subject to
the provisions of the next sentence) without any action on the part of the
Fiscal Agent or any holder of the Securities, with payment thereon being subject
to the Payment Restrictions, and any restrictions imposed as a consequence of,
or pursuant to, such proceedings. In the event the Securities shall mature prior
to August 15, 1999 in accordance with the preceding sentence, the principal
amount due in respect thereof shall equal the Accreted Value of the Security as
of such date, calculated in accordance with paragraph 7 hereof. Notwithstanding
any other provision of this Security or the Fiscal Agency Agreement, in no event
shall the Fiscal Agent or any
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holder of the Securities be entitled to declare the Securities to immediately
mature or otherwise be immediately payable.
(b) In the event that the Superintendent approves in whole or
in part a payment of any interest on or principal of any Securities and the
Issuer fails to pay the full amount of such approved payment on the date such
amount is scheduled to be paid, such approved amount will be immediately payable
on such date without any action on the part of the Fiscal Agent or any holder of
Securities. In the event that the Issuer fails to perform any of its other
obligations hereunder or under the Fiscal Agency Agreement, each holder of the
Securities may pursue any available remedy to enforce the performance of any
provision of such Securities or the Fiscal Agency Agreement; provided, however,
that such remedy shall in no event include the right to declare the Securities
immediately payable, and shall in no circumstances be inconsistent with the
provisions of Section 1307. A delay or omission by any Security holder in
exercising any right or remedy accruing as a result of the Issuer's failure to
perform its obligations hereunder or under the Fiscal Agency Agreement and the
continuation thereof shall not impair such right or remedy or constitute a
waiver of or acquiescence in such non-performance by the Issuer. To the extent
permitted by law, no remedy is exclusive of any other remedy and all remedies
are cumulative.
(c) Notwithstanding any other provision of this Security or
the Fiscal Agency Agreement, the right of any holder of Securities to receive
payment of the principal of and interest on such holder's Securities on or after
the respective Scheduled Interest Payment Dates or Scheduled Maturity Date
expressed in such Securities, or to bring suit for the enforcement of any such
payment on or after such respective Scheduled Interest Payment Dates or
Scheduled Maturity Date, in each case subject to such payment on such dates
having received the approval of the Superintendent pursuant to the Payment
Restrictions, including the approval of the Superintendent pursuant to Section
1307, is absolute and unconditional and shall not be impaired or affected
without the consent of the holder.
17. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, subject to the Payment Restrictions, to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER OF
RESTRICTED DEFINITIVE SECURITY
The Chase Manhattan Bank, N.A.,
as Fiscal Agent
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Institutional Trust Window
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: The Mutual Life Insurance Company of New
York, 11 1/4% Surplus Notes scheduled to
mature on August 15, 2024 (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated
as of August 15, 1994 (the "Fiscal Agency Agreement"), between The Mutual Life
Insurance Company of New York, as Issuer, and The Chase Manhattan Bank, N.A., as
Fiscal Agent. Capitalized terms used but not defined herein shall have the
meanings given to them in the Fiscal Agency Agreement.
This letter relates to $________________ principal amount of
Restricted Definitive Securities held in definitive form by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such
Securities, the Transferor does hereby certify that (i) such Securities are
owned by the Transferor and are being exchanged without transfer or (ii) such
transfer has been effected pursuant to and in accordance with Rule 144A, Rule
144 or Rule 903 or Rule 904 under the United States Securities Act of 1933, as
amended (the "Act"), and accordingly the Transferor does hereby further certify
that:
I. if the transfer is being effected pursuant to and in
accordance with Rule 144A under the Act, that the Securities are being
transferred to a person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more
accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States
or any other jurisdiction; or
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II. if the transfer has been effected pursuant to Rule 144,
the Securities have been transferred in a transaction permitted by Rule
144; or
III. if the transfer has been effected pursuant to Rule 903 or
904:
(1) the offer of the Securities was not made to a
person in the United States;
(2) either:
(A) at the time the buy order was
originated, the transferee was outside the United
States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was
outside the United States, or
(B) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Initial Purchasers. Terms
used in this certificate and not otherwise defined in the Fiscal Agency
Agreement have the meanings set forth in Regulation S under the Act.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
cc: The Mutual Life Insurance Company of New York
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