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Exhibit 10.3
FISCAL AGENCY AGREEMENT
between
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK,
Issuer
and
CITIBANK, N.A.,
Fiscal Agent
--------------------------
Dated as of December 30, 1997
--------------------------
Series A Surplus Notes
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TABLE OF CONTENTS
1. The Securities.....................................................1
(a) General..........................................................1
(b) Forms of Securities..............................................1
(c) Book-Entry Provisions............................................3
(d) Denominations....................................................4
2. Fiscal Agent; Other Agents.........................................4
3. Authentication.....................................................5
4. Payment and Cancellation...........................................6
(a) Payment..........................................................6
(b) Cancellation.....................................................7
5. Global Securities..................................................7
6. Registration, Transfer and Exchange of Securities..................8
(a) General..........................................................8
(b) Transfer of Global Securities and Interests Therein..............9
(c) Transfers of Definitive Securities...............................9
(d) Successive Registrations........................................10
(e) Information.....................................................10
(f) Suspension......................................................10
(g) Legends.........................................................10
(h) Repurchase......................................................11
(i) Redemption......................................................11
7. Delivery of Certain Information...................................11
(a) Rule 144A Information...........................................11
(b) Periodic Reports................................................11
8. Conditions of Fiscal Agent's Obligations..........................12
(a) Compensation and Indemnity......................................12
(b) Agency..........................................................12
(c) Advice of Counsel...............................................13
(d) Reliance........................................................13
(e) Interest in Securities, etc.....................................13
(f) Non-Liability for Interest......................................13
(g) Certifications..................................................13
(h) No Implied Obligations..........................................13
9. Resignation and Appointment of Successor..........................14
(a) Fiscal Agent and Paying Agent...................................14
(b) Resignation and Removal.........................................14
(c) Successors......................................................15
(d) Acknowledgement.................................................15
(e) Merger, Consolidation, etc......................................16
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10. Meetings and Amendments...........................................16
(a) Calling of Meeting, Notice and Quorum...........................16
(b) Approval........................................................17
(c) Binding Nature of Amendments, Notices, Notations,
etc.............................................................19
(d) "Outstanding" Defined.............................................19
11. Governing Law.....................................................20
12. Notices...........................................................20
13. Separability......................................................21
14. Headings..........................................................21
15. Counterparts......................................................21
EXHIBIT A FORM OF DEFINITIVE SECURITIES......................A-1
EXHIBIT B FORM OF GLOBAL SECURITIES..........................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 December 30, 1997 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 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, and CITIBANK, 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 up to $115,000,000
aggregate principal amount of Series A Surplus Notes of the Issuer, scheduled to
mature on December 30, 2012 (the "Series A Notes" or the "Securities"). The
Securities shall bear interest thereon at the rate set forth in 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 Series A Notes (the "Payment Restrictions"). The Series A Notes are
scheduled to mature on December 30, 2012 (the "Final Scheduled Maturity Date").
Any reference herein to the term "principal" or the principal amount of the
Series A 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 Series A Notes shall include (i) the Final Scheduled Maturity Date, or
(ii) 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 an Investment Agreement, dated as of December 30, 1997
(the "Investment Agreement"), between the Issuer, MONY Financial Services
Corporation (the "Holding Company") and the Investors named therein (the
"Investors").
(i)The Securities (other than Global Securities, as
hereinafter defined) offered and sold pursuant to the Investment
Agreement to "accredited investors", within the meaning of Rule 501(a)
of the Securities Act of 1933, as
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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)The Securities offered and sold in reliance on Rule 144A
("Rule 144A") under the Act pursuant to the Investment Agreement shall
be issued in the form of Global Securities (the "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 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 Exhibit 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.
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(c) Book-Entry Provisions . This Section 1(c) shall apply to
all 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 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
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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 $150,000 and any
amount in excess thereof that is an integral multiple of $1,000.
2.Fiscal Agent; Other Agents.
The Issuer hereby appoints CITIBANK, N.A., acting through its
corporate trust office at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxx 0, Xxx Xxxx, Xxx Xxxx
00000 in the 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
CITIBANK, N.A. hereby accepts such appointment. CITIBANK, 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
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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 exceeding $115,000,000 of Series A Notes 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 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
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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 $1,000,000
(or any lesser amount at the discretion of the Issuer) 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 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
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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 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 14(a) or the first
sentence of paragraph 14(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
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registered in the name of a person other than the Depositary or a nominee
thereof.
(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
Global Security or any portion thereof shall, except as otherwise provided by
Section 6(h), bear the legend regarding transfer restrictions applicable to the
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 Definitive Securities.
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
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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 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 Definitive Securities. If a holder of Definitive
Securities wishes at any time to transfer such Definitive Securities or to
exchange such Definitive Securities, such transfer or exchange may be effected
only in accordance with the provisions of this Section 6(c). So long as the
Definitive Securities are held by the Investors and their subsidiaries and
affiliates, no transfer certificate is necessary for transfers by them in
accordance with Section 1.6(d) of the Investment Agreement. Upon the receipt by
the Fiscal Agent, as Transfer Agent, at its office in The City of New York of
(i) a Definitive Security accompanied by a written and executed instrument of
transfer or exchange as provided in Section 6(a) and (ii) if such Definitive
Security bears the legend containing transfer restrictions set forth in the
second paragraph of legends in the form of Security attached hereto as Exhibit
A-1, the following additional information and documents, as applicable:
(1) if such Definitive Security is owned by the holder thereof and
is being exchanged, without transfer, or if such 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 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 if required by the Fiscal Agent,
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the Fiscal Agent shall register the transfer of such Definitive Security or
exchange such Definitive Security for an equal principal amount of 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.
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
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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.
(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. The Securities shall not be redeemable by the Issuer
prior to Final Scheduled Maturity Date.
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.
(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
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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
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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.
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.
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(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 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 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
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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 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 then 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
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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) 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
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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 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
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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.
(d)"Outstanding" Defined. For purposes of the provisions of
this Agreement and the Securities, any Security
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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 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 CITIBANK,
N.A., Corporate Agency and Trust Administration, 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxx 0, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxx, Senior Trust
Officer, telephone: (000) 000-0000, facsimile: (000) 000-0000, 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, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxx, Executive Vice President and Chief
Investment Officer, telephone: (000) 000-0000, facsimile: (000) 000-0000. The
foregoing addresses for notices or communications may be
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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.
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/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
CITIBANK, N.A.
By: /s/ X. Xxxxx
-------------------------------
Name: X. Xxxxx
Title: Senior Trust Officer
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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 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 (I) 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 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, (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 (IV) 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
9 HEREOF.
ALL PAYMENTS OF PRINCIPAL 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
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27
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.
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THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
Series A Surplus Note scheduled to mature on
December 30, 2012
No. R-_____ $
Issue Date:
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 December 30, 2012 (the "Final Scheduled Maturity Date"),
and to pay interest thereon, subject to the approval of the Superintendent
pursuant to Section 1307, from December 30, 1997, or from the most recent
Scheduled Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 30 and December 31 in each year,
commencing June 30, 1998 (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 9 1/2% per
annum, until the principal hereof is paid or duly provided for. 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 upon which any state or federal agency obtains an order or grants
approval for the rehabilitation, liquidation, conservation or dissolution of the
Issuer. 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 June 15 or December 15 (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
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holders of the Securities not less than 15 days prior to such special record
date.
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 $1,000,000 (or any lesser amount at the discretion
of the Issuer) 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.
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.
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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.
CITIBANK, N.A.
as Fiscal Agent
By: -----------------------------
Authorized Officer
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FORM OF REVERSE
1. This Security is one of a duly authorized issue of Series A Surplus
Notes scheduled to mature on December 30, 2012 of the Issuer (herein called the
"Securities" or "Notes"), limited in aggregate principal amount to
$115,000,000. The Issuer and CITIBANK, N.A. (as "Fiscal Agent") have entered
into a Fiscal Agency Agreement, dated as of December 30, 1997 (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 10 hereof
(the "Payment Restrictions"), are scheduled to mature on December 30, 2012.
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 $150,000 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
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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 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 not be redeemed by the Issuer, in whole or in part, prior
to the Final Scheduled Maturity Date.
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,
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33
and neither the Issuer nor the Fiscal Agent nor any such agent shall be
affected by notice to the contrary.
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.
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34
5. (a) For so long as the Fiscal Agent is acting as a Payment 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 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
$1,000,000 (or any lesser amount at the discretion of the Issuer) 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
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35
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.
7. 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 8 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 of 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 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
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36
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.
8. 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
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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.
9. 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, 91-38 or
96-23 (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 9 are in addition to those otherwise set forth in Section 6 of the
Fiscal Agency Agreement and under applicable law.
10. (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 Section, 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
Section, 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
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Creditor Claims and pay it over to them as their interest 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 Section.
(e) This Section 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 Section 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
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surplus notes or similar obligations of the Issuer (including the Issuer's
11-1/4% Surplus Notes scheduled to mature on August 15, 2024) 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 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.
11. 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.
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40
12. 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 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 12
as hereinabove set forth.
13. 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 (with respect to the Securities only and
not any other Securities that may be issued under 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
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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.
14. 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. Notwithstanding any other provision of this
Security or the Fiscal Agency Agreement, in no event shall the Fiscal Agent or
any 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
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42
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.
15. 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 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 EXCEPT IN
ACCORDANCE WITH SECTION 6(B) OF THE FISCAL AGENCY AGREEMENT.
[INCLUDE UNLESS, PURSUANT TO SECTION 6(g) OF THE FISCAL AGENCY
AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND
B-1
44
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 (I) 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 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 (IV) 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 9 HEREOF.
ALL PAYMENTS OF PRINCIPAL 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 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.
2
45
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
Series A Surplus Note scheduled to mature on
December 30, 2012
CUSIP NO.:__________
No. R-____ $
Issue Date:
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 fifteen million dollars ($115,000,000) when taken together
with all of the Issuer's Series A Surplus Notes scheduled to mature on December
30, 2012, 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 Series A Surplus Notes in respect of which beneficial
interests are held through the Depositary in the form of a Global Security, on
December 30, 2012 (the "Final Scheduled Maturity Date"), and to pay interest
thereon, subject to the approval of the Superintendent pursuant to Section 1307,
from December 30, 1997 or from the most recent Scheduled Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on June 30 and December 31 in each year, commencing June 30, 1998(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 9-1/2% per annum. 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, 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. 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
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46
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 June 15 or
December 15 (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.
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 $1,000,000 (or any lesser amount at the discretion
of the Issuer) 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
4
47
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.
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.
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48
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.
CITIBANK, N.A.
as Fiscal Agent
By:__________________________
Authorized Officer
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49
FORM OF REVERSE
1. This Security is one of a duly authorized issue of Series A
Surplus Notes scheduled to mature on December 30, 2012 (herein called the
"Securities" or "Notes"), limited in aggregate principal amount to one hundred
fifteen million dollars ($115,000,000). The Issuer and CITIBANK, N.A. (as
"Fiscal Agent") have entered into a Fiscal Agency Agreement, dated as of
December 30, 1997 (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 10 hereof
(the "Payment Restrictions"), are scheduled to mature on December 30, 2012.
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 $150,000 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
7
50
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 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 not be redeemed by the Issuer, in whole or in part,
prior to the Final Scheduled Maturity Date.
8
51
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.
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.
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52
(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 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
$1,000,000 (or any lesser amount at the discretion of the Issuer) 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
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53
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.
7. For so long as any of the Securities remain Outstanding or any
amount remains unpaid on any of the Securities,
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54
(a) Except with respect to transactions covered by Paragraph 8
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 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
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55
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.
8. 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
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Agreement and all such obligations of the Issuer shall terminate.
9. 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, 91-38 or
96-23 (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 9 are in addition to those otherwise set forth in Section 6 of the
Fiscal Agency Agreement and under applicable law.
10. (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 Section, 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
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57
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 Section, 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 Section.
(e) This Section 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 Section 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
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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 (including the
Issuer's 11-1/4% scheduled to mature on August 15, 2004) 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 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
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59
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.
11. 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.
12. 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
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60
authenticate 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 12 as hereinabove set forth.
13. 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 (with respect to the Securities only and
not any other Securities that may be issued under 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
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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.
14. 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. Notwithstanding any other provision of this
Security or the Fiscal Agency Agreement, in no event shall the Fiscal Agent or
any 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
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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.
15. 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
DEFINITIVE SECURITY
CITIBANK, N.A.
as Fiscal Agent
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Re: The Mutual Life Insurance Company of New York, Series A
Surplus Notes (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated as of
December 30, 1997 (the "Fiscal Agency Agreement"), between The Mutual Life
Insurance Company of New York, as Issuer, and CITIBANK, 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
Definitive Securities held 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
require-
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64
ments of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction; or
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 pre-arranged 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.
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This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Investors. 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
3
