1
Exhibit 10.45
--------------------------------------------------------------------------------
FISCAL AGENCY AGREEMENT
between
METROPOLITAN LIFE INSURANCE COMPANY,
Issuer
and
THE CHASE MANHATTAN BANK, N. A.,
Fiscal Agent
----------------------------
Dated as of November 1, 1993
----------------------------
6.30% Surplus Notes scheduled to mature on November 1, 2003
7.45% Surplus Notes scheduled to mature on November 1, 2023
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
1. The Securities ............................................ 1
(a) General .............................................. 1
(b) Forms of Securities .................................. 2
(c) Book-Entry Provisions ................................ 4
(d) Denominations ........................................ 5
2. Fiscal Agent; Other Agents ................................ 5
3. Authentication ............................................ 7
4. Payment and Cancellation .................................. 8
(a) Payment ............................................. 8
(b) Cancellation ........................................ 9
5. Global Securities ......................................... 9
6. Registration, Transfer, and Exchange of Securities ........ 11
7. Delivery of Certain Information ........................... 18
(a) Rule 144A Information ............................... 18
(b) Periodic Reports .................................... 18
8. Conditions of Fiscal Agent's Obligations .................. 19
(a) Compensation and Indemnity .......................... 19
(b) Agency .............................................. 19
(c) Advice of Counsel ................................... 20
(d) Reliance ............................................ 20
(e) Interest in Securities, etc. ........................ 20
(f) Non-Liability for Interest........................... 20
(g) Certifications ...................................... 20
(h) No Implied Obligations .............................. 21
9. Resignation and Appointment of Successor .................. 21
(a) Fiscal Agent and Paying Agent ........................ 21
(b) Resignation .......................................... 21
(C) Successors ........................................... 22
(d) Acknowledgement ...................................... 23
(e) Merger, Consolidation, etc. .......................... 23
10. Meetings and Amendments ................................... 23
(a) Calling of Meeting, Notice and Quorum ................ 23
(b) Approval ............................................. 25
(c) Binding Nature of Amendments, Notices, Notations, etc. 27
(d) "Outstanding" Defined ................................ 28
-i-
3
11. Governing Law ................................................. 28
12. Notices ....................................................... 28
13. Separability .................................................. 29
14. Headings ...................................................... 29
15. Counterparts .................................................. 29
EXHIBIT A FORM OF DEFINITIVE SECURITY ..................... A-1
EXHIBIT B FORM OF GLOBAL SECURITY ......................... B-1
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR
EXCHANGE OR TRANSFER OF RESTRICTED
DEFINITIVE SECURITY ............................ C-1
EXHIBIT D FORM OF TRANSFER CERTIFICATE FOR
TRANSFER FROM RESTRICTED
GLOBAL SECURITY TO REGULATION S
GLOBAL SECURITY ................................ D-l
EXHIBIT E FORM OF TRANSFER CERTIFICATE FOR
TRANSFER FROM RESTRICTED
GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY ................................ E-1
EXHIBIT F FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM REGULATION S
GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY ................................ F-1
EXHIBIT G-1 FORM OF OWNER SECURITIES
CERTIFICATION .................................. G-1
EXHIBIT G-2 FORM OF DEPOSITARY SECURITIES
CERTIFICATION .................................. G-2
-ii-
4
FISCAL AGENCY AGREEMENT, dated as of November 1, 1993, between
METROPOLITAN LIFE INSURANCE COMPANY, a mutual life insurance corporation
organized under the laws of the State of New York (the "Issuer"), having its
principal office at One Madison Avenue, New York, New York, and THE CHASE
MANHATTAN BANK, N.A., a banking organization organized under the laws of the
United States, 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 $700,000,000
aggregate principal amount of Surplus Notes of the Issuer, consisting of
$400,000,000 principal amount of 6.30% Surplus Notes scheduled to mature on
November 1, 2003 (the "Notes scheduled to mature 2003") and $300,000,000
principal amount of 7.45% Surplus Notes scheduled to mature on November 1, 2023
(the "Notes scheduled to mature 2023"). The Notes scheduled to mature 2003 and
the Notes scheduled to mature 2023 are sometimes referred to herein collectively
as the "Securities" or the "Notes", and each separately as a "Series" of
Securities or Notes. Claims based upon the Securities will rank below all
Indebtedness, Policy Claims - and Other Creditor Claims (each as hereinafter
defined), in accordance with Section 7435 of the New York Insurance Law
(together with any successor provision, and as may be hereafter amended from
time to time, "Section 7435"). The payment by the Issuer of principal and
interest on the Securities shall be conditioned upon the payment restrictions
set forth in paragraphs 4 and 10 of the Securities (the "Payment Restrictions").
The Notes scheduled to mature 2003 are scheduled to mature on November 1, 2003,
and the Notes scheduled to mature 2023 are scheduled to mature on November 1,
2023 (each such date, with respect to its respective series, the "Scheduled
Maturity Date"). Any reference herein to the term "principal" or the principal
amount of the Notes scheduled to mature 2023 shall include the amount of
premium, if any, payable upon redemption thereof in accordance with paragraph 15
thereof. Any reference herein to the term "scheduled maturity date" or other
date for the payment of principal of the Notes shall include (i) the date, if
any, fixed for redemption in accordance with paragraph 15 thereof and (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 a Purchase
5
Agreement, dated October 28, 1993 (the "Purchase Agreement"), between the Issuer
and the Purchasers named therein (the "Purchasers").
(i) Securities (other than global Securities, as hereinafter
defined) offered and sold pursuant to the Purchase Agreement to "accredited
investors", within the meaning of Rule 501(a) of the Securities Act of 1933, as
amended (the "Act"), shall be issued in definitive, fully registered form
without interest coupons, substantially in the form of Security attached as
Exhibit A hereto, with such applicable legends as are provided for in Exhibit A
("definitive Securities"). Upon transfer of any definitive Security,
registration of such transfer shall be effected in accordance with Section 6
hereof.
(ii) Securities offered and sold in reliance on Rule 144A ("Rule
144A") under the Act pursuant to the Purchase Agreement shall be issued in the
form of global Securities (the "Restricted Global Securities") in definitive,
fully registered form without interest coupons, substantially in the form of
Security attached as Exhibit B hereto, with such applicable legends as are
provided for in Exhibit B. Each such global Security shall be registered in the
name of a nominee of The Depository Trust Company (the "U.S. Depositary") and
deposited with the Fiscal Agent, at its New York office, as custodian for the
U.S. Depositary, duly executed by the Issuer and authenticated by the Fiscal
Agent as hereinafter provided. The aggregate principal amount of each Restricted
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Fiscal Agent, as custodian for the U.S. Depositary,
as hereinafter provided.
(iii) (A) Securities offered and sold in reliance on Regulation S
("Regulation S") under the Act pursuant to the Purchase Agreement shall be
initially issued in the form of temporary 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 U.S. Depositary and deposited with the Fiscal Agent, at its New
York office, as custodian for the U.S. Depositary, duly executed by the Issuer
and authenticated by the Fiscal Agent as hereinafter provided, for credit to
the respective accounts of beneficial owners of the Securities (or to such other
accounts as they may direct) at Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or Centrale
de Livraison de Valeurs Mobilieres S.A. ("CEDEL"). Until
-2-
6
such time as the Restricted Period (as defined below) shall have terminated,
each such global Security shall be referred to herein as a "Regulation S Global
Security". After such time as the Restricted Period shall have terminated and
the certifications referred to in (B) below shall have been provided, interests
in each such global Security shall be exchanged for interests in a like global
Security, referred to herein as an "Unrestricted Global Security". The aggregate
principal amount of each Regulation S Global Security and each Unrestricted
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 U.S. Depositary,
as hereinafter provided. As used herein, the term "Restricted Period" means the
period of 40 consecutive days beginning on and including the later of (i) the
day that Xxxxxxx, Sachs & Co., on behalf of the Purchasers, advises the Issuer
and the Fiscal Agent' is the day on which the Securities are first offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the day on which the closing for the offering of the
Securities occurs.
(B) On or after the termination of the Restricted Period, interests
in a Regulation S Global Security may be exchanged for interests in an
Unrestricted Global Security only after delivery by a beneficial owner of an
interest therein to Euroclear or CEDEL of a written certification (an "Owner
Securities Certification") substantially in the form of Exhibit G-1 hereto, and
upon delivery by Euroclear or CEDEL to the Fiscal Agent of a certificate or
certificates substantially in the form attached hereto as Exhibit G-2. Upon
receipt of such certificates, the Fiscal Agent will exchange the portion of the
Regulation S Global Security covered by such certification for interests in an
Unrestricted Global Security.
All Securities shall be issued substantially in the form of Security
attached hereto as either Exhibit A or B and shall be executed manually or in
facsimile on behalf of the Issuer by any two of its Chairman of the Board,
President, Chief Financial Officer, Executive Vice Presidents, Senior Vice
Presidents or Secretary (the "Authorized Officers"), notwithstanding that such
officers, or any of them, shall have ceased, for any reason, to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of any such Security. The Securities (i) may also
have such additional provisions, omissions, variations or substitutions as are
not inconsistent with the provisions of this Agreement, and (ii) may have such
letters, numbers or other marks of identification and such legends or
endorsements
-3-
7
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 thereof 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
proper execution of such Securities. All Securities shall be otherwise
substantially identical except as to maturity, interest rate, denomination and
as otherwise provided herein.
(c) Book-Entry Provisions. This Section 1(c) shall apply to all
Securities evidencing all or part of the Securities that are registered in the
name of the U.S. Depositary or a nominee thereof ("global Securities").
The Issuer shall execute and the Fiscal Agent shall, in accordance
with this Section 1(c), authenticate and deliver one or more global Securities
as required to be issued pursuant to Section 1(b) hereof, which (A) shall be
registered in the name of the U.S. Depositary or its nominee, (B) shall be
delivered by the Fiscal Agent to the U.S. Depositary or pursuant to the U.S.
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 U.S. 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 U.S.
Depositary] or in such other name as is requested by an authorized
representative of [insert name of U.S. Depositary] (and any payment
is made to [insert name of nominee of U.S. Depositary] or to such
other entity as is requested by an authorized representative of
[insert name of U.S. Depositary]), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN [insert
name of U.S. Depositary] OR A NOMINEE THEREOF IS WRONGFUL inasmuch
as the registered owner hereof, [insert name of nominee of U.S.
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
-4-
8
registered in the name of any person other than [insert name of U.S.
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(c) of the
Fiscal Agency Agreement. Beneficial interests in this global
Security may not be transferred except in accordance with Section
6(c) of the Fiscal Agency Agreement."
Neither any members of, or participants in, the U.S. Depositary
("Agent Members") nor any other persons on whose behalf Agent Members may act
(including Euroclear and CEDEL and account holders and participants therein)
shall have any rights under this Fiscal Agency Agreement with respect to any
global Security registered in the name of the U.S. Depositary or any nominee
thereof, or under any such global Security, and the U.S. 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 U.S. Depositary or such nominee,
as the case may be, or impair, as between the U.S. 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 (i) $250,000, in the
case of Securities offered and sold, or subsequently transferred, in reliance on
Rule 144A, (ii) $500,000 in the case of Securities offered and sold, or
subsequently transferred, in reliance on Regulation S or (iii) $500,000, in the
case of Securities offered and sold, or subsequently transferred to Accredited
Investors, and, in each case, any amount in excess thereof that is an integral
multiple of $1,000.
2. Fiscal Agrent: Other Agrents.
The Issuer hereby appoints The Chase Manhattan Bank, N.A., acting
through its corporate trust office at 0 Xxxxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 and payment office at 1 Chase Manhattan Plaza, Level lB,
-5-
9
Institutional Trust Window, Xxx Xxxx, Xxx Xxxx 00000 (for payments, exchanges
and transfers) 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
The Chase Manhattan Bank, N.A. hereby accepts such appointment. The Chase
Manhattan Bank, N.A., and any successor or successors as such fiscal agent
qualified and appointed in accordance with Section 9 hereof, are herein called
the "Fiscal Agent". The Fiscal Agent shall have the powers and authority granted
to and conferred upon it in the Securities and hereby and such further powers
and authority to act on behalf of the Issuer as may be mutually agreed upon by
the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a copy of this
Agreement available for inspection during normal business hours at its Corporate
Trust Office. The Fiscal Agent or any Paying Agent (as defined below) shall also
act as Transfer Agent (as defined below). All of the terms and provisions with
respect to such powers and authority contained in the Securities are subject to
and governed by the terms and provisions hereof.
The Issuer may, at its discretion, appoint one or more agents (a
"Paying Agent" or "Paying Agents") for the payment, to the extent permitted
under the Payment Restrictions, of the principal of and any interest on the
Securities, and one or more agents (a "Transfer Agent" or "Transfer Agents") for
the transfer and exchange of Securities, at such place or places as the Issuer
may determine; provided, however, that the Issuer shall at all times maintain a
Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New
York (which Paying Agent and Transfer Agent may be the Fiscal Agent) and in
Europe (which, so long as the Securities are listed on the Luxembourg Stock
Exchange and such Exchange shall so require, shall include an office or agency
in Luxembourg). 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. The Issuer also hereby initially appoints Chase Manhattan Bank
Luxembourg, S.A. at its office at 0 Xxx Xxxxxxx X-0000, Xxxxxxxxxx as Paying
Agent and Transfer Agent, and Chase Manhattan Bank Luxembourg, S.A. 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
-6-
10
shall promptly notify the Fiscal Agent of the name and address of any other
Paying Agent or Transfer Agent appointed by it and of the country or countries
in which a Paying Agent or Transfer Agent may act in that capacity, and will
notify the Fiscal Agent of the resignation or termination of any such Paying
Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the
Issuer may vary or terminate the appointment of any such Paying Agent or
Transfer Agent at any time and from time to time upon giving not less than 90
days' notice to such Paying Agent or Transfer Agent, as the case may be, and to
the Fiscal Agent. The Issuer shall cause notice of any resignation, termination
or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of
any change in the office through which any such Agent will act to be provided to
holders of Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly
executed on behalf of the Issuer for the purposes of the original issuance of
Securities, (i) to authenticate said Securities in an aggregate principal amount
not in excess of $400,000,000 in the case of the Notes scheduled to mature 2003
and $300,000,000 in the case of the Notes scheduled to mature 2023, 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 authenticating agent shall agree to
act as an authenticating agent pursuant to the terms and conditions of this
Agreement.
-7-
11
4. Payment and Cancellation.
(a) Payment. For so long as the Fiscal Agent is acting as a Paying
Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide
to the Fiscal Agent, in immediately available funds on or prior to 10:00 a.m.,
New York time, on each date on which a payment of principal of or any interest
on the Securities shall be scheduled, as set forth in the text of the
Securities, such amount, in U.S. dollars, as is necessary to make such payment,
and the Issuer hereby authorizes and directs the Fiscal Agent from funds so
provided to it to make or cause to be made payment of the principal of and any
interest, as the case may be, on the Securities in the manner, at the times and
for the purposes set forth herein and in the text of said Securities; provided
that (1) any permitted payment of interest on the Securities may be made by
check mailed to the persons (the "registered owners") in whose names such
Securities are registered on the register maintained pursuant to Section 6
hereof at the close of business on the record dates designated in the text of
the Securities and (2) the Issuer will not provide any such funds to the Fiscal
Agent prior to such time as the relevant payment of principal or interest is
approved by the Superintendent of Insurance of the State of New York (the
"Superintendent"). Permitted payments of principal of or any interest on the
Securities may be made, in the case of a registered owner of at least $5,000,000
aggregate principal amount of Securities, by wire transfer to an account
maintained by the payee with a bank as specified in the text of the Securities
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
-8-
12
thereon under an agreement with respect to such funds containing substantially
the same terms and conditions set forth in this Section 4(a) and in Section 8(b)
hereof; and the Fiscal Agent shall have no responsibility with respect to any
funds so provided by the Issuer to any such Paying Agent.
Payments of principal of and interest on the Securities shall be
made in the manner set forth in the Securities, including the Payment
Restrictions set forth therein.
(b) Cancellation. All Securities delivered to the Fiscal Agent (or
any other Agent appointed by the Issuer pursuant to Section 2 hereof) for
payment, redemption or registration of transfer or exchange as provided herein
or in the Securities shall be marked "cancelled" and, in the case of any other
such Agent, forwarded to the Fiscal Agent. All such Securities shall be
destroyed by the Fiscal Agent or such other person as may be jointly designated
by the Issuer and the Fiscal Agent, which shall thereupon furnish certificates
of such destruction to the Issuer.
5. Global Securities.
(a) Notwithstanding any other provisions of this Agreement or the
Securities, a global Security shall not be exchanged in whole or in part for a
Security registered in the name of any person other than the U.S. 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
U.S. Depositary in the event that (i) the U.S. Depositary has notified the
Issuer that it is unwilling or unable to continue as U.S. Depositary for such
global Security or such U.S. 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 U.S. 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
-9-
13
in the form of a definitive Security; provided, that no exchange may be made
pursuant to clause (iii) or (iv) in respect of any interest in the Regulation S
Global Security unless and until the certifications required by Section 1(b)
(iii) (B) above have been provided in respect of such interest. 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 U.S. Depositary. Any Security issued in exchange for a global Security or
any portion thereof shall be a global Security, provided that any such Security
so issued that is registered in the name of a person other than the U.S.
Depositary or a nominee thereof shall not be a global Security.
(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 U.S. 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 U.S. 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 U.S. 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 U.S. Depositary
or an authorized representative thereof. Any Security delivered in exchange for
the Restricted Global Security or any portion thereof shall, except as otherwise
provided by clause (iii) of Section 6(c), bear the legend regarding transfer
restrictions applicable to the Restricted Global Security set forth on the form
of Security attached as Exhibit B hereto.
(c) Subject to the provisions of Section 1(c) above, the registered
holder may grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent Members, to take any
-10-
14
action which a holder is entitled to take under this Fiscal Agency Agreement or
the Securities. In the event of the occurrence of any of the events specified in
paragraph (a) of this Section 5, the Issuer will promptly make available to the
Fiscal Agent a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
6. Registration, Transfer and
Exchange of Securities.
(a) General. The Fiscal Agent, as agent of the Issuer for this
purpose, shall maintain at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, a register of Securities for the registration
of Securities and the transfers and exchanges thereof. Subject to the provisions
of this Section 6, upon presentation for transfer or exchange of any Security at
the office of any Transfer Agent accompanied by a written instrument of transfer
or exchange in the form approved by the Issuer (it being understood that, until
notice to the contrary is given to holders of Securities, the Issuer shall be
deemed to have approved the form of instrument of transfer or exchange, if any,
printed on any Security), executed by the registered holder, in person or by
such holder's attorney thereunto duly authorized in writing, such Security shall
be transferred upon the register for the Securities, and a new Security shall be
authenticated and issued in the name of the transferee.
(b) Transfers of Restricted Definitive Securities. If a holder of
definitive, certificated Securities of any Series that bear or are required to
bear the legends set forth in the form of Security attached as Exhibit A hereto
("Restricted Definitive Securities") wishes at any time to transfer such
Restricted Definitive Securities or to exchange such Restricted Definitive
Securities, such exchange or transfer may be effected only in accordance with
the provisions of this Section 6 (b). Upon the receipt by the Fiscal Agent, as
Transfer Agent, at its office in The City of New York of (i) a Restricted
Definitive Security accompanied by a written and executed instrument of transfer
or exchange as provided in Section 6(a) and (ii) the following additional
information and documents, as applicable:
(l) if such Restricted Definitive Security is owned by the holder
thereof and is being exchanged, without transfer, or if such Restricted
Definitive Security is being transferred pursuant to an exemption
-11-
15
from registration in accordance with Regulation S under the Act, a
certification from such holder to that effect, substantially in the form
of Exhibit C hereto; or
(2) if the Restricted Definitive Security being transferred or
exchanged contains a restrictive legend, certification to the effect that
such transfer or exchange is in accordance with the restrictions
contained in such legend, if required by the Fiscal Agent,
the Fiscal Agent shall register the transfer of such Restricted Definitive
Security or exchange such Restricted Definitive Security for an equal principal
amount of Restricted Definitive Securities of other authorized denominations.
To permit registrations of transfers and exchanges, the Issuer shall
execute and the Fiscal Agent (or an authenticating agent appointed pursuant to
Section 2) shall authenticate and deliver definitive Securities at the Fiscal
Agent's or any Transfer Agent's request. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any transfer tax or other governmental charge payable in
connection with any registration of transfer or exchange.
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.
(c) Transfer of Global Securities and Interests Therein.
Notwithstanding any other provision of this Agreement or the Securities,
transfers of a global Security, in whole or in part, and transfer of interests
therein of the kind described in clauses (ii), (iii) or (iv) below, shall be
made only in accordance with this Section 6(c), and all transfers of an interest
in the Regulation S Global Security shall comply with Section 6(c) (iv) or (v)
below.
(i) General. A global Security may not be transferred, in whole or
in part, to any person other than the U.S. Depositary or a nominee
thereof, and no such transfer to any such other person may be registered;
provided that this clause (i) shall not
-12-
16
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. Nothing in this Section 6(c)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a global Security
effected in accordance with the other provisions of this Section 6(c).
(ii) Restricted Global Security to Regulation S Global Security. If
the holder of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a person who wishes to
take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected, subject to
the rules and procedures of the U.S. Depositary, Euroclear and CEDEL, in
each case to the extent applicable (the "Applicable Procedures"), only in
accordance with the provisions of this Section 6(c)(ii). Upon receipt by
the Fiscal Agent, as Transfer Agent, at its office in The City of New York
of (l) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Fiscal Agent to credit or
cause to be credited to a specified Agent Member's account a beneficial
interest in the Regulation S Global Security in a principal amount equal
to that of the beneficial interest in the Restricted Global Security to be
so transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of the
Agent Member (and the Euroclear or CEDEL account, as the case may be) to
be credited with, and the account of the Agent Member to be debited for,
such beneficial interest and (3) a certificate in substantially the form
of Exhibit D attached hereto given by the holder of such beneficial
interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S.
Depositary to reduce the principal amount of the Restricted Global
Security, and to increase the principal amount of the Regulation S Global
Security, by the principal amount of the beneficial interest in the
Restricted Global Security to be so transferred, and to credit or cause to
be credited to the account of the person specified in such instructions
(which shall be the Agent Member for Euroclear or CEDEL or both, as the
case may be) a beneficial interest in the Regulation S Global Security
having a principal amount equal to the amount by which
-13-
17
the principal amount of the Restricted Global Security was reduced upon
such transfer.
(iii) Restricted Global Security to Unrestricted Global Security. If
the holder of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a person who wishes to
take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Security, such transfer may be effected, subject to
the Applicable Procedures only in accordance with this Section 6(c)(iii).
Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The
City of New York of (l) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Fiscal Agent to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Unrestricted Global Security in a principal
amount equal to that of the beneficial interest in the Restricted Global
Security to be so transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Agent Member and, in the case of any such transfer
pursuant to Regulation S, the Euroclear or CEDEL account for which such
Agent Member's account is held) to be credited with, and the account of
the Agent Member to be debited for, such beneficial interest and (3) a
certificate in substantially the form of Exhibit E attached hereto given
by the holder of such beneficial interest, the Fiscal Agent, as Transfer
Agent, shall instruct the U.S. Depositary to reduce the principal amount
of the Restricted Global Security, and to increase the principal amount of
the Unrestricted Global Security, by the principal amount of the
beneficial interest in the Restricted Global Security to be so
transferred, and to credit or cause to be credited to the account of the
person specified in such instructions a beneficial interest in the
Unrestricted Global Security having a principal amount equal to the amount
by which the principal amount of the Restricted Global Security was
reduced upon such transfer.
(iv) Regulation S Global Security or Unrestricted Global Security to
Restricted Global Security. If the holder of a beneficial interest in the
Regulation S Global Security or the Unrestricted Global Security wishes at
any time to transfer such interest to a person who wishes to take delivery
thereof in the form of a beneficial interest in the Restricted Global
Security, such transfer may be effected, subject to the
-14-
18
Applicable Procedures and only in accordance with this Section 6(c)(iv).
Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The
City of New York of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member, directing the Fiscal Agent, as
Transfer Agent, to credit or cause to be credited to a specified Agent
Member's account a beneficial interest in the Restricted Global Security
equal to that of the beneficial interest in the Regulation S Global
Security or the Unrestricted Global Security to be so transferred and (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member to be
credited with, and the account of the Agent Member (or, if such account is
held for Euroclear or CEDEL, the Euroclear or CEDEL account, as the case
may be) to be debited for, such beneficial interest, and (3) with respect
to a transfer of a beneficial interest in the Regulation S Global Security
(but not the Unrestricted Global Security), a certificate substantially in
the form of Exhibit F hereto given by the holder of such beneficial
interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S.
Depositary to reduce the principal amount of the Regulation S Global
Security or the Unrestricted Global Security as the case may be and
increase the principal amount of the Restricted Global Security, by the
principal amount of the beneficial interest in the Regulation S Global
Security or the Unrestricted Global Security to be so transferred, and to
credit or cause to be credited to the account of the person specified in
such instructions a beneficial interest in the Restricted Global Security
having a principal amount equal to the amount by which the principal
amount of the Regulation S Global Security or the Unrestricted Global
Security was reduced upon such transfer.
(v) Interests in Recrulation S Global Security to be Held Through
Euroclear or CEDEL. Until the later of the termination of the Restricted
Period and the provision of the certifications required by Section
1(b)(iii)(B) hereof in respect of any interest in the Regulation S Global
Security, such interests may be held only through Agent Members acting for
and on behalf of Euroclear and CEDEL, and any purchaser of Securities in a
sale made in reliance on Regulation S may not sell or offer to sell such
Securities within the United States or to a U.S. person or for the account
or benefit of a U.S. person within the meaning of Regulation S, provided,
that this clause (v) shall
-15-
19
not prohibit any transfer in accordance with Section 6(c) (iv) hereof.
(vi) Other Exchanges. In the event that a global Security or any
portion thereof is exchanged for Securities other than global Securities,
such other Securities may in turn be exchanged (on transfer or otherwise)
for Securities that are not global Securities or for beneficial interests
in a global Security (if any is then outstanding) only in accordance with
such procedures, which shall be substantially consistent with the
provisions of clauses (i) through (v) above (including the certification
requirements intended to insure that transfers of beneficial interests in
a global Security comply with Rule 144A, Rule 144 or Regulation S under
the Act, as the case may be) and any Applicable Procedures, as may be from
time to time adopted by the Issuer and the Fiscal Agent; provided that any
beneficial interest in the Regulation S Global Security shall not be
exchangeable for a definitive Security until the expiration of the
Restricted Period and unless and until the certifications required by
Section 1(b)(iii)(B) have been provided in respect of such interest.
(d) 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 tax or other
governmental charge payable in connection therewith and any other amounts
required to be paid by the provisions of the Securities.
(e) 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) 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) 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
-16-
20
"Legend"), the Securities so issued shall not bear the Legend. If Securities are
issued upon the transfer, exchange or replacement of Securities bearing the
Legend, or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Issuer such satisfactory
evidence, which may include an opinion of independent counsel licensed to
practice law in the State of New York, as may be reasonably required by the
Issuer that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A, Rule 144 or Regulation S under the Act or that such Securities are
not "restricted securities" within the meaning of Rule 144 under the Act. Upon
provision of such satisfactory evidence, the Fiscal Agent, at the direction of
the Issuer, shall authenticate and deliver a Security that does not bear the
Legend. The Issuer agrees to indemnify the Fiscal Agent for, and to hold it
harmless against, any loss, liability or expense, including the fees and
expenses of counsel, reasonably incurred, arising out of or in connection with
actions taken or omitted by the Fiscal Agent in reliance upon such legal opinion
and the delivery of a Security that does not bear a Legend.
(h) 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) The Notes scheduled to mature 2003, may not be redeemed at the
option of the Issuer or any holder of such Notes. Subject to the Payment
Restrictions, including the approval of the Superintendent pursuant to Section
1307, the Notes scheduled to mature 2023 may be redeemed at the election of the
Issuer, in whole or in part. In the case of any redemption of Notes scheduled to
mature 2023, not less than 45 days (unless shorter notice is acceptable to the
Fiscal Agent) before the date designated for redemption, the Issuer shall give
notice to the Fiscal Agent of its election to redeem the Notes scheduled to
mature 2023 on the date specified in such notice, stating the aggregate
principal amount of such Securities to be redeemed on such date. The Fiscal
Agent shall cause notice of redemption to be given in the name of and at the
expense of the Issuer in the manner provided in such Securities. If less than
all the Notes
-17-
21
scheduled to mature 2023 are to be redeemed, the particular Securities to be
redeemed shall be selected, subject to the restrictions set forth in Section
1(d) hereof, not less than 30 days prior to the date such Securities are to be
redeemed by the Fiscal Agent from the Outstanding Notes scheduled to mature 2023
not previously called for redemption, by such method as the Fiscal Agent shall
deem fair and appropriate, which may provide for the selection for redemption of
portions (equal to $250,000 or any integral multiple thereof) of the principal
amount of the Notes scheduled to mature 2023 of a denomination larger than
$500,000. Upon any partial redemption, subject to the restrictions set forth in
Section 1(d) hereof, the Issuer will issue and the Fiscal Agent shall
authenticate and deliver in exchange thereof or one or more registered
Securities, of any authorized denomination as requested by the holder, in
aggregate principal amount equal to the unredeemed portion of the principal of
such Security. The Notes may not be redeemed at the option of a holder thereof.
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 l44A 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
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.
-18-
22
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, damages, 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 or 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.
-19-
23
(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, 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.
-20-
24
(h) No Implied Obligations. The duties and obligations of the
Fiscal Agent and the Issuer with respect to matters governed by this Agreement
shall be determined solely by the express provisions hereof, and neither the
Fiscal Agent nor the Issuer shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement and the
Securities, as applicable, and no implied covenants or obligations shall be read
into this Agreement or the Securities against either the Fiscal Agent or the
Issuer. Nothing in this Agreement shall be construed to require the Fiscal Agent
to advance or expend its own funds.
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. 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
-21-
25
New York, in good standing and having and acting through 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 hereof of
compensation for services rendered and to reimbursement of reasonable
out-of-pocket expenses incurred hereunder.
(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 who has been a bona fide holder of a Security for at least six months
(which Security, in the case of such other Paying Agent, is referred to in this
sentence), on behalf of himself and all others similarly
-22-
26
situated, or the Fiscal Agent, may petition any court of competent jurisdiction
for the appointment of a successor fiscal or paying agent, as the case may be.
The Issuer shall give prompt written notice to each other Paying Agent of the
appointment of a successor Fiscal Agent.
(d) Acknowledgement. Any successor Fiscal Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Issuer an
instrument accepting such appointment hereunder, and thereupon such successor
Fiscal Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Fiscal Agent hereunder and all provisions hereof shall be binding on such
successor Fiscal Agent, and such predecessor, upon payment of its compensation
and reimbursement of its disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Fiscal Agent
shall be entitled to receive, all monies, securities, books, records or other
property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger. Consolidation. etc. Any bank or trust company into which
the Fiscal Agent hereunder may be merged, or resulting from any merger or
consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal
Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Fiscal Agent, provided that it shall be qualified as aforesaid,
shall be the successor Fiscal Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
10. Meetings and Amendments.
(a) Calling of Meeting, Notice and Quorum. A meeting of holders of
Securities of a Series 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 of such
Series to be made, given or taken by holders of Securities of such Series or to
modify, amend or supplement the terms of the Securities of such Series 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
-23-
27
holders of Securities of such Series 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
of a Series, 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 of such Series, 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) of a Series shall have requested the
Fiscal Agent to call a meeting of the holders of Securities of such Series 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 of a
Series, a person shall be a holder of Outstanding Securities of such Series or a
person duly appointed by an instrument in writing as proxy for such a holder.
The persons entitled to vote a majority in principal amount of the Outstanding
Securities of a Series 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 of a Series 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 of a Series with respect to the proof of the appointment of proxies
in respect of holders of Securities of such Series, the record date for
determining the registered owners of Securities of such Series 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 of a Series 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
-24-
28
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 of a
Series 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 of the
Series then Outstanding meeting, or (ii) with the written consent of the holders
of not less than a majority in aggregate principal amount of the Securities of
such Series 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 of such Series or this Agreement in any
way, and the holders of Securities of such Series 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 of such Series to be made, given or taken by
holders of Securities of such Series; 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 of such Series 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 of
such Series affected thereby, (A) change the Scheduled Interest Payment Date or
Scheduled Maturity Date (in each case, as defined in the Securities of such
Series) of the principal of or any installment of interest on any Security of
such Series, (B) reduce the principal amount of any Security of such Series or
the interest rate thereon, or, if applicable, the premium payable, if any, with
respect to a redemption thereof, (C) change the currency in which, or the
required place at which, payment with respect to interest or principal in
respect of the Securities of such Series 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 of such Series, (E) impair the right of a holder of a
Security of such Series 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 of such Series, (F) reduce the above-stated percentage of the
principal amount of Outstanding Securities of such Series 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 of such Series
-25-
29
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 of such Series that constitutes the quorum required at any meeting of
holders of Securities of such Series 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 of a Series for the purpose of (a) adding to
the covenants of the Issuer for the benefit of the holders of Securities of such
Series, or (b) surrendering any right or power conferred upon the Issuer, or (c)
securing the Securities of such Series 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 of such
Series as permitted by this Agreement and the Securities of such Series, or (e)
modifying the restrictions on, and procedures for, resale and other transfers of
the Securities of such Series to the extent required 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 of such Series in a manner which does not adversely affect the
interest of any Security holder in any material respect, or (h) effecting any
amendment which the Issuer and the Fiscal Agent may determine is necessary or
desirable and which shall not adversely affect the interest of any Security
holder.
It shall not be necessary for the vote or consent of the holders of
Securities to approve the particular form of any proposed modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action, but it shall be sufficient if such vote or
consent shall approve the substance thereof.
-26-
30
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 of a Series 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 thereof 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 of a Series, 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
of such Series. 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 of a Series 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 of such
Series.
Securities of a Series 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 of such Series 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 of such Series.
-27-
31
(d) "Outstanding" Defined. For purposes of the provisions of this
Agreement and the Securities, any Security authenticated and delivered pursuant
to this Agreement shall, as of any date of determination, be deemed to be
"Outstanding", except:
(i) Securities theretofore cancelled by the Fiscal Agent or
delivered to the Fiscal Agent for cancellation;
(ii) Securities which have been called for redemption in accordance
with their terms or which have become payable, to the extent permitted
under the Payment Restrictions, at the Scheduled Maturity Date or
otherwise, and with respect to which, in each case, monies sufficient to
pay the principal thereof and any interest thereon shall have been paid;
and
(iii) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to this
Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities of a Series are present at a meeting
of holders of Securities of such Series 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 of
such Series 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.
12. Notices.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing, shall specify this Agreement by name
and date and shall identify the Securities, and if sent to the Fiscal Agent
shall be delivered, transmitted by facsimile or telegraphed to it at The Chase
Manhattan Bank, N.A., 4 Chase XxxxxXxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxxxx, Corporate Trust Administration, telephone:
(000) 000-0000, fax: (000) 000-0000, and if sent to the Issuer shall be
delivered, transmitted by facsimile or
-28-
32
telegraphed to it at Metropolitan Life Insurance Company, Xxx Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Senior Vice President and Treasurer,
telephone: (000) 000-0000, fax: (000) 000-0000. The foregoing addresses for
notices or communications may be changed by written notice given by the
addressee to each party hereto, and the addressee's address shall be deemed
changed for all purposes from and after the giving of such notice.
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
-29-
33
delivered shall be deemed to be an original. Such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal
Agency Agreement as of the date first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice-President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, N.A.
By: /s/ X. X. Xxxxxx
------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
Attest: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Xxxxxxxxx Xxxxxxx
Assistant Secretary
-30-
34
EXHIBIT A
FORM OF DEFINITIVE SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS MAY BE
HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
[INCLUDE IF SECURITY IS A RESTRICTED DEFINITIVE SECURITY OR SECURITY
ISSUED IN EXCHANGE THEREFOR (UELESS, 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 METROPOLITAN LIFE INSURANCE
COMPANY ("METLIFE") THAT (A) THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) BY THE INITIAL INVESTOR (I) IN A MINIMUM
PRINCIPAL AMOUNT OF $250,000 TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A, IN A TRANSACTION IN
ACCORDANCE WITH RULE 144A, (II) IN AN OFFSHORE TRANSACTION IN A MINIMUM
PRINCIPAL AMOUNT OF $500,000 IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS MAY BE HEREAFTER
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 BE HEREAFTER AMENDED FROM TIME TO TIME) UNDER THE ACT (IF
AVAILABLE) OR (2) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (1) ABOVE AND, IN
ADDITION, IN A MINIMUM PRINCIPAL AMOUNT OF $500,000 TO AN ACCREDITED INVESTOR,
AS DEFINED IN RULE 501(a) 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 METLIFE 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
A- 1
35
1974, AS AMENDED), THE HOLDER WILL COMPLY WITH THE RESTRICTIONS SET FORTH IN
PARAGRAPH 9 HEREOF.
PAYMENTS OF PRINCIPAL (INCLUDING ANY PREMIUM WITH RESPECT TO ANY
REDEMPTION) AND INTEREST ON THIS SECURITY MAY ONLY BE MADE OUT OF METLIFE'S FREE
AND DIVISIBLE SURPLUS AND WITH THE PRIOR APPROVAL OF THE SUPERINTENDENT OF
INSURANCE OF THE STATE OF NEW YORK (THE "SUPERINTENDENT"), IN ACCORDANCE WITH
SECTION 1307 OF THE NEW YORK INSURANCE LAW (TOGETHER WITH ANY SUCCESSOR
PROVISION, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "SECTION 1307").
THERE ARE NO GUIDELINES OR INTERPRETATIONS AS TO THE EXTENT OF THE
SUPERINTENDENT'S DISCRETION UNDER SECTION 1307 IN DETERMINING WHETHER THE
FINANCIAL CONDITION OF METLIFE WARRANTS THE MAKING OF SUCH PAYMENTS.
A-2
36
METROPOLITAN LIFE INSURANCE COMPANY
% Surplus Note scheduled to mature on _________________
No. R-________ $_________
METROPOLITAN LIFE INSURANCE COMPANY, a mutual life insurance company
organized under the laws of the State of New York (herein called the "Issuer"),
for value received, hereby promises to pay, subject to the approval of the
Superintendent pursuant to Section 1307, to _________ or registered assigns, the
principal sum of ______________ United States dollars ($_________) on November
1, ___ (the "Scheduled Maturity Date"), and to pay interest thereon, subject to
the approval of the Superintendent pursuant to Section 1307, from November 1,
1993 or from the most recent Scheduled Interest Payment Date to which interest
has been paid or duly provided for, semiannually in arrears on May 1 and
November 1 in each year, commencing May 1, 1994 (each a "Scheduled Interest
Payment Date"), at the rate of ___% per annum, until the principal hereof is
paid or duly provided for. [Any reference herein to the term "principal" or to
the principal amount of the Notes shall include the amount of premium, if any,
payable upon redemption thereof in accordance with paragraph 15. Any reference
herein to the term "scheduled maturity date" or other date for the payment of
principal of the Notes shall include the date, if any, fixed for redemption
thereof in accordance with paragraph 15.] The date upon which any state or
federal agency obtains an order or grants approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer shall also be deemed to
be the scheduled maturity date. As specified on the reverse hereof, all payments
of principal of or interest on this Security may be made only out of the
Issuer's free and divisible surplus and only with the prior approval of the
Superintendent. The interest so payable, and punctually paid or duly provided
for, on any Scheduled Interest Payment Date shall be paid, in accordance with
the terms of the Fiscal Agency Agreement hereinafter referred to, to the person
(the "registered holder") in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the April 15
or the October 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
A-3
37
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
payment date of such payment to the person entitled thereto at such person's
address appearing on the aforementioned register. In the case of a registered
holder of at least $5,000,000 aggregate principal amount of Securities, payments
of principal or interest may be made by wire transfer to an account maintained
by the payee with a bank if such registered holder so elects by giving notice to
the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent
may accept at its discretion) prior to the applicable scheduled 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 in Europe (including, for so long as the
Securities are listed on the Luxembourg Stock Exchange and such Exchange shall
so require, in Luxembourg) for the payment of the principal of and interest on
the Securities as herein provided.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security may be executed by the Issuer by manual or facsimile
signatures, and such signatures may be executed on separate counterparts.
A-4
38
Unless the certificate of authentication hereon has been executed by
the Fiscal Agent by manual signature, this Security shall not be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated:
METROPOLITAN LIFE INSURANCE
COMPANY
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Fiscal Agency Agreement.
THE CHASE MANHATTAN BANK, N.A.
as Fiscal Agent
By:
---------------------------------
Authorized Officer
A-5
39
FORM OF REVERSE
1. This Security is one of a duly authorized issue of ___% Surplus
Notes scheduled to mature on November 1, ____ of the Issuer (herein called the
"Securities" or "Notes"), limited in aggregate principal amount to
$[___,000,000]. The Issuer and The Chase Manhattan Bank, N.A. (as "Fiscal
Agent") have entered into a Fiscal Agency Agreement, dated as of November 1,
1993 (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 November 1, ____.
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.
[Any reference herein to the term "principal" or to the principal
amount of the Notes shall include the amount of premium, if any, payable upon
redemption thereof in accordance with paragraph 15. Any reference herein to the
term "scheduled maturity date" or other date for the payment of principal of the
Notes shall include the date, if any, fixed for redemption thereof in accordance
with paragraph 15.] The date upon which any state or federal agency obtains an
order or grants approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer shall be deemed to be the scheduled maturity date.
X-0
00
0. The Securities are issuable only in fully registered form without
coupons. Securities are issuable in minimum denominations of $[250,000]
[$500,000] and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in each of the Borough of Manhattan,
The City of New York and a city in Europe (including, for so long as the
Securities are listed on the Luxembourg Stock Exchange and such Exchange shall
so require, in Luxembourg), Transfer Agents 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, and Chase
Manhattan Bank Luxembourg, S.A. as its Transfer Agent in Luxembourg. The Issuer
shall cause each Transfer Agent to act as a Securities registrar and shall cause
to be kept at the office of each Transfer Agent a register in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Securities and registration of transfers of Securities. The
Issuer reserves the right to vary or terminate the appointment of any Transfer
Agent or to appoint additional or other Transfer Agents or to approve any change
in the office through which any Transfer Agent acts, provided that there shall
at all times be a Transfer Agent in the Borough of Manhattan, The City of New
York and in Europe (including, for so long as the Securities are listed on the
Luxembourg Stock Exchange and such Exchange shall so require, in Luxembourg).
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 regis-
A-7
41
tered holder upon request confirmed in writing, Securities may be exchanged for
Securities of any authorized denominations and aggregate principal amount upon
surrender of the Securities to be exchanged at the office of any Transfer Agent.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Fiscal Agent shall authenticate and deliver, the Securities
which the registered holder making the exchange is entitled to receive. Any
registration of transfer or exchange shall be effected upon the Issuer being
satisfied with the documents of title and identity of the person making the
request and subject to the restrictions set forth in the immediately following
paragraph and such reasonable regulations as the Issuer may from time to time
agree with the Fiscal Agent.
Securities may be redeemed by the Issuer, in whole or in part, but
only to the extent permitted by the Payment Restrictions, including the prior
approval of the Superintendent, and in accordance with Paragraph 15 hereof. In
the event of a partial redemption, the Issuer shall not be required (i) to
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the date notice is given identifying the
Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security, or portion thereof, called for redemption.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith, other than an exchange in connection with the partial
redemption of a Security not involving any registration of a transfer.
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
A-8
42
with respect to this Security, whether at the scheduled 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 payment date or
scheduled maturity date thereof, as specified herein, the scheduled 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 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 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,
A-9
43
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 $5,000,000 principal amount
of Securities, by wire transfer to an account maintained by the payee with a
bank if such registered holder so elects by giving notice to the Fiscal Agent,
not less than 15 days (or such fewer days as the Fiscal Agent may accept at its
discretion) prior to the date on which such payments are scheduled to be made,
of such election and of the account to which payments are to be made. Unless
such designation is revoked, any such designation made by such holder with
respect to such Securities shall remain in effect with respect to any future
payments with respect to such Securities payable to such holder. The Issuer
shall pay any reasonable administrative costs in connection with making any such
payments. The Fiscal Agent shall arrange directly with any other Paying Agent
who may have been appointed by the Issuer pursuant to the provisions of Section
2 of the Fiscal Agency Agreement for the payment from funds so paid by the
Issuer of the principal of and any interest on this Security. Any monies held in
respect of this Security remaining unclaimed at the end of two years after such
principal and such interest shall have become payable in accordance with the
Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and
monies sufficient thereof or 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 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
A-10
44
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 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,
(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
A-11
45
and principal of the Securities on the scheduled 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 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 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 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 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 payment date or such scheduled maturity date.
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
A-12
46
make such payment and (iii) the Issuer has delivered to the Fiscal Agent an
Officer's Certificate stating that such demutualization, merger, consolidation,
sale, conveyance, transfer or other disposition complies with this paragraph and
that all conditions precedent herein provided for relating to such transaction
have been complied with. In the event of the assumption by a successor
corporation of the obligations of the Issuer as provided in clause (i)(B) of
the immediately preceding sentence, such successor corporation shall succeed to
and be substituted for the Issuer hereunder and under the Fiscal Agency
Agreement and all such obligations of the Issuer shall terminate.
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 or 91-38 (or
any amendment thereof) or another applicable exemption from the prohibitions
under Section 406 of ERISA and Section 4975 of the Code. The purchase by any
Person of this Security shall constitute a representation by such Person to the
Issuer and the Fiscal Agent that such Person either (i) is not a Plan or (ii) is
a Plan, and may acquire this Security under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
restrictions on purchases of the Securities set forth in this Paragraph 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 Paragraph, to the prior payment in full of all Indebtedness, Policy Claims
and Other Creditor Claims (each as hereinafter defined), in accordance with
Section 7435 of the New York Insurance Law (together with any successor
provision, and as may be hereafter amended from time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation, conservation, dissolution or reorganization
proceeding relating to the Issuer or its property, the priority of claims of
Security holders shall be determined in accordance with Section 7435. In a
proceeding commenced under Article 74 of the New York
A-13
47
Insurance Law, claims for principal of or interest on the Securities constitute
Class 7 claims under Section 7435, as currently in effect. If the Superintendent
approves a payment of principal of or interest on the Securities in an amount
that is less than the full amount of principal of and interest on the Securities
then scheduled to be paid in respect of the Securities, payment of such partial
amount shall be made pro rata among Security holders as their interests may
appear.
(c) If a distribution is made to Security holders that, because of
this Paragraph, should not have been made to them, the Security holders who
receive the distribution shall hold it in trust for holders of Policy Claims,
Indebtedness and Other Creditor Claims and pay it over to them as their
interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the Paying
Agent of any facts known to the Issuer that would cause a payment of principal
of or interest on the Securities to violate this Paragraph.
(e) This Paragraph defines the relative rights of Security holders,
on the one hand, and holders of any other claims, in accordance with Section
7435, on the 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
X-00
00
Xxxxxxxxx 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 indebtedness of the Issuer which
by its express terms is subordinated in right of payment to, or ranks equally
with, the Securities shall not constitute Indebtedness. However, under current
law the Issuer cannot issue any indebtedness which by its terms is subordinate
to the Securities. In addition, any other surplus notes or similar obligations
of the Issuer shall not constitute Indebtedness and will rank pari passu with
the Securities.
As used herein, "Policy Claims" shall mean all existing or future
claims of policyholders or beneficiaries, as the case may be, under any and all
existing or future policies, endorsements, riders and other contracts of
insurance, annuity contracts, including, without limitation, guaranteed
investment contracts, and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or hereafter created, all claims 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
A-15
49
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.
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 them to save each of them 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
A-16
50
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 of this series
present at a meeting duly called pursuant thereto or by written consent of such
percentage of the principal amount of all Outstanding Securities, the Issuer and
the Fiscal Agent may, with the prior approval of the Superintendent, modify,
amend or supplement the Fiscal Agency Agreement or the terms of the Securities
of this series 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 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
X- 00
00
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 of all Series will upon the obtaining
of such an order or the granting of such approval immediately mature in full
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 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
A-18
52
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 payment or scheduled maturity dates expressed in such
Securities, or to bring suit for the enforcement of any such payment on or after
such respective scheduled payment or scheduled maturity dates, 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. (a) Subject to the approval of the Superintendent pursuant to
Section 1307, the Notes are subject to redemption at any time on or after
November 1, 2003, as a whole or in part, at the election of the Issuer at the
following redemption prices (expressed as percentages of principal amount)
during the 12-month period beginning November 1, of the years indicated,
Redemption Redemption
Year Price Year Price
---- --------- --- ----------
2003 103.529% 2008 101.764%
2004 103.176% 2009 101.411%
2005 102.823% 2010 101.059%
2006 102.470% 2011 100.706%
2007 102.117% 2012 100.353%
and thereafter at a redemption price equal to 100% of the principal amount,
together in each case with accrued interest (except where the date of such
redemption is a Scheduled Interest Payment Date) to the date of such redemption
(subject to the prior approval of the Superintendent pursuant to Section 1307),
but interest installments the payment of which have been approved by the
Superintendent and which are payable on or prior to such date of redemption
will be payable to the holders of record of such Securities at the close of
business on the relevant Record Dates set forth herein. Partial redemption's
must be in an amount not less than $1,000,000 aggregate principal amount of
Securities.
A-19
53
(b) In the case of any partial redemption of Securities, the
Securities to be redeemed shall be selected by the Fiscal Agent not less than 30
days prior to the date of such redemption, from the Outstanding Securities not
previously called for redemption, by such method as the Fiscal Agent shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to $250,000 or any integral multiple thereof) of the principal
amount of registered Securities of a denomination larger than $500,000.
(c) Notices to redeem Securities shall be given to holders of
Securities in writing mailed, first-class postage prepaid, to each holder of
registered Securities, or portions thereof, so to be redeemed, at his address as
it appears in the Security Register. Such notice will be given once not more
than 60 days nor less than 30 days prior to the date fixed for redemption. If by
reason of the suspension of regular mail service, or by reason of any other
cause, it shall be impracticable to give notice to the holders of Securities in
the manner prescribed herein, then such notification in lieu thereof as shall be
made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of
the Issuer shall constitute sufficient provision of such notice, if such
notification shall, so far as may be practicable, approximate the terms and
conditions of the mailed notice in lieu of which it is given. Neither the
failure to give notice nor any defect in any notice given to any particular
holder of a Security shall affect the sufficiency of any notice with respect to
other Securities. Notices to redeem Securities shall specify the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of the Securities to be redeemed
(or portion thereof in the case of a partial redemption), that interest accrued
to the date fixed for redemption (unless the date of redemption is a Scheduled
Interest Payment Date) will be paid as specified in said notice, and that on and
after said date interest thereon will cease to accrue if the Notes scheduled to
mature on November 1, 2023 are so redeemed. In addition, in the case of a
partial redemption, the Redemption Notice shall specify the Securities called
for redemption and the aggregate principal amount of the Securities to remain
Outstanding after the redemption.
(d) If notice of redemption has been given in the manner set forth
in Paragraph 15(c) hereof, the Securities so to be redeemed shall be payable in
full on the date specified in such notice and upon presentation and surrender
A-20
54
of the Securities at the place or places specified in such notice, the
Securities shall be paid and redeemed by the Issuer at the places and in the
manner and currency herein specified and at the redemption price together with
accrued interest (unless the redemption date is a Scheduled Interest Payment
Date) to the redemption date. From and after the redemption date, if monies for
the redemption of Securities called for redemption shall have been made
available at the Principal Office of the Fiscal Agent for redemption on the
redemption date, the Securities called for redemption shall cease to bear
interest, and the only right of the holders with respect to such Securities or
portion thereof being redeemed shall be to receive payment of the redemption
price together with accrued interest (unless the redemption date is an Interest
Payment Date) to the redemption date as aforesaid. If monies for the redemption
of the Securities are not made available for payment until after the redemption
date, the Securities called for redemption shall not cease to bear interest
until such monies have been so made available.
(e) Any Security which is to be redeemed only in part shall be
surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Fiscal Agent duly executed by, the holder thereof or his attorney duly
authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver to the holder of such Security without service charge,
a new registered Security or Securities, of any authorized denomination as
requested by such holder, and as permitted by Section 1(d) of the Agreement, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.]
16. 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.
A-21
55
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 BE HEREAFTER AMENDED FROM TIME TO TIME), "RULE 144A").
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF U.S. 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 U.S. DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF U.S. DEPOSITARY] (AND ANY PAYMENT
IS MADE TO [INSERT NAME OF NOMINEE OF U.S. DEPOSITARY] OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF U.S.
DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON OTHER THAN [INSERT NAME OF U.S. DEPOSITARY] OR A NOMINEE
THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [INSERT NAME OF
NOMINEE OF U.S. 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 U.S. 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(C) OF THE FISCAL AGENCY AGREEMENT.
BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH SECTION 6(C) OF THE FISCAL AGENCY AGREEMENT.
[INCLUDE IF SECURITY IS A REGULATION S GLOBAL SECURITY - - THIS
SECURITY IS A REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH
MAY BE HEREAFTER
B-1
56
AMENDED FROM TIME TO TIME, "REGULATION S") GLOBAL SECURITY WITHIN THE MEANING OF
THE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. INTERESTS IN THIS
REGULATION S GLOBAL SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE 40-DAY
RESTRICTED PERIOD REFERRED TO IN SECTION 1(B) (III) OF THE FISCAL AGENCY
AGREEMENT, AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS REGULATION S
GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL SECURITY OR
IN THE UNRESTRICTED GLOBAL SECURITY EXCEPT AFTER THE LATER OF THE DATE OF
TERMINATION OF THE RESTRICTED PERIOD AND THE DATE ON WHICH THE OWNER SECURITIES
CERTIFICATE AND THE DEPOSITARY SECURITIES CERTIFICATION RELATING TO SUCH
INTEREST HAVE BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE FISCAL AGENCY
AGREEMENT, TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNER OF SUCH INTEREST ARE
NOT U.S. PERSONS.]
ALL PAYMENTS OF PRINCIPAL (INCLUDING ANY PREMIUM WITH RESPECT TO ANY
REDEMPTION) AND INTEREST ON THIS SECURITY MAY ONLY BE MADE OUT OF METLIFE'S FREE
AND DIVISIBLE SURPLUS AND WITH THE PRIOR APPROVAL OF THE SUPERINTENDENT OF
INSURANCE OF THE STATE OF NEW YORK, IN ACCORDANCE WITH SECTION 1307 OF THE NEW
YORK INSURANCE LAW.
[INCLUDE IF SECURITY IS A RESTRICTED GLOBAL SECURITY OR SECURITY
ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(G) OF THE FISCAL
AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)] - - THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF METROPOLITAN LIFE INSURANCE
COMPANY ("METLIFE") THAT (A) THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) BY THE INITIAL INVESTOR (I) IN A MINIMUM
PRINCIPAL AMOUNT OF $250,000 TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (OR ANY SUCCESSOR
PROVISION THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME) IN A
TRANSACTION IN ACCORDANCE WITH RULE 144A, (II) IN AN OFFSHORE TRANSACTION IN A
MINIMUM PRINCIPAL AMOUNT OF $500,000 IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S (OR ANY SUCCESSOR PROVISION THERETO, AND AS MAY BE HEREAFTER
AMENDED FROM TIME TO TIME), OR (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 (OR ANY SUCCESSOR PROVISION THERETO, AND AS MAY BE
HEREAFTER AMENDED FROM TIME TO TIME) UNDER THE ACT (IF AVAILABLE) OR (2) BY
SUBSEQUENT PURCHASERS, AS SET FORTH IN (1) ABOVE AND, IN ADDITION, IN A MINIMUM
PRINCIPAL AMOUNT OF $500,000 TO AN ACCREDITED INVESTOR, AS DEFINED IN RULE
501(a) 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)
B-2
57
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 METLIFE 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.
PAYMENTS OF PRINCIPAL (AND PREMIUM, IF ANY) AND INTEREST ON THIS
SECURITY MAY ONLY BE MADE OUT OF METLIFE'S FREE AND DIVISIBLE SURPLUS AND WITH
THE PRIOR APPROVAL OF THE SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK,
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 METLIFE WARRANTS THE MAKING OF SUCH PAYMENTS.
B-3
58
METROPOLITAN LIFE INSURANCE COMPANY
____% Surplus Note scheduled to mature on __________ CUSIP
NO.:_________ ISIN NO.:_________ COMMON CODE:_________ No. R-_______
$_________
METROPOLITAN LIFE INSURANCE COMPANY, a mutual life insurance company
organized under the laws of the State of New York (herein called the "Issuer"),
for value received, hereby promises to pay, subject to the approval of the
Superintendent pursuant to Section 1307, to ______ or registered assigns, the
principal sum of ______________ United States dollars ($_________), or such
other amount (not to exceed [ ] million dollars ($[ ,000,000]) when taken
together with all of the Issuer's __% Surplus Notes scheduled to mature on
November 1, ____ 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 __% Surplus Notes scheduled to mature on
November 1, ____ in respect of which beneficial interest, are held through the
U.S. Depositary in the form of a[n] [Restricted] [Unrestricted] [Regulation 5]
Global Security, on November 1, ___ (the "Scheduled Maturity Date"), and to pay
interest thereon, subject to the approval of the Superintendent pursuant to
Section 1307, from November 1, 1993 or from the most recent Scheduled Interest
Payment Date to which interest has been paid or duly provided for, semiannually
in arrears on May 1 and November 1 in each year, commencing May 1, 1994 (each a
"Scheduled Interest Payment Date"), at the rate of ___% per annum, until the
principal hereof is paid or duly provided for. [Any reference herein to the term
"principal" or to the principal amount of the Notes shall include the amount of
premium, if any, payable upon redemption thereof in accordance with paragraph
15. Any reference herein to the term "scheduled maturity date" or other date for
the payment of principal of the Notes shall include the date, if any, fixed for
redemption thereof in accordance with paragraph 15.] The date upon which any
state or federal agency obtains an order or grants approval for the
rehabilitation, liquidation, conservation or dissolution of the Issuer shall
also be deemed to be the scheduled maturity date. As specified on the reverse
hereof, all payments of principal of (and premium, if any, on) or interest on
this Security may be made only out of the Issuer's free and divisible surplus
and only with the prior approval of the Superintendent. The interest so payable,
and punctually paid or duly provided for, on any Scheduled
B-4
59
Interest Payment Date shall be paid, in accordance with the terms of the Fiscal
Agency Agreement hereinafter referred to, to the person (the "registered
holder") in whose name this Security (or one or more predecessor Securities) is
registered at the close of business on the April 15 or the October 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
payment date of such payment to the person entitled thereto at such person's
address appearing on the aforementioned register. In the case of a registered
holder of at least $5,000,000 aggregate principal amount of Securities, payments
of principal or interest may be made by wire transfer to an account maintained
by the payee with a bank if such registered holder so elects by giving notice to
the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent
may accept at its discretion) prior to the applicable scheduled 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 in Europe (including,
B-5
60
for so long as the Securities are listed on the Luxembourg Stock Exchange and
such Exchange shall so require, an office or agency in Luxembourg) 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated:
METROPOLITAN LIFE INSURANCE
COMPANY
By:_______________________
Name:
Title:
By:__________________________
Name:
Title:
B-6
61
This is one of the Securities referred to in the within-mentioned
Fiscal Agency Agreement.
THE CHASE MANHATTAN BANK, N.A.
as Fiscal Agent
By:__________________________
Authorized Officer
B-7
62
FORM OF REVERSE
1. This Security is one of a duly authorized issue of ___% Surplus
Notes scheduled to mature on November 1, ____ of the Issuer (herein called the
"Securities" or "Notes"), limited in aggregate principal amount to
$[___,000,000]. The Issuer and The Chase Manhattan Bank, N.A. (as "Fiscal
Agent") have entered into a Fiscal Agency Agreement, dated as of November 1,
1993 (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 November 1, ____.
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.
[Any reference herein to the term "principal" or to the principal
amount of the Notes shall include the amount of premium, if any, payable upon
redemption thereof in accordance with paragraph 15. Any reference herein to the
term "scheduled maturity date" or other date for the payment of principal of the
Notes shall include the date, if any, fixed for redemption thereof in accordance
with paragraph 15.] The date upon which any state or federal agency obtains an
order or grants approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer shall be deemed to be the scheduled maturity date.
B-8
63
2. The Securities are issuable only in fully registered form without
coupons. Securities are issuable in minimum denominations of $[250,000]
[$500,000] and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in each of the Borough of Manhattan,
The City of New York and a city in Europe (including, for so long as the
Securities are listed on the Luxembourg Stock Exchange and such Exchange shall
so require, in Luxembourg), Transfer Agents 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, and Chase
Manhattan Bank Luxembourg, S.A. as its Transfer Agent in Luxembourg. The Issuer
shall cause each Transfer Agent to act as a Securities registrar and shall cause
to be kept at the office of each Transfer Agent a register in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Securities and registration of transfers of Securities. The
Issuer reserves the right to vary or terminate the appointment of any Transfer
Agent or to appoint additional or other Transfer Agents or to approve any change
in the office through which any Transfer Agent acts, provided that there shall
at all times be a Transfer Agent in the Borough of Manhattan, The City of New
York and in Europe (including, for so long as the Securities are listed on the
Luxembourg Stock Exchange and such Exchange shall so require, in Luxembourg).
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 regis-
B-9
64
tered holder upon request confirmed in writing, Securities may be exchanged for
Securities of any authorized denominations and aggregate principal amount upon
surrender of the Securities to be exchanged at the office of any Transfer Agent.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Fiscal Agent shall authenticate and deliver, the Securities
which the registered holder making the exchange is entitled to receive. Any
registration of transfer or exchange shall be effected upon the Issuer being
satisfied with the documents of title and identity of the person making the
request and subject to the restrictions set forth in the immediately following
paragraph and such reasonable regulations as the Issuer may from time to time
agree with the Fiscal Agent.
Securities may be redeemed by the Issuer, in whole or in part, but
only to the extent permitted by the Payment Restrictions, including the prior
approval of the Superintendent, and in accordance with Paragraph 15 hereof. In
the event of a partial redemption, the Issuer shall not be required (i) to
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the date notice is given identifying the
Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security, or portion thereof, called for redemption.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith, other than an exchange in connection with the partial
redemption of a Security not involving any registration of a transfer.
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
B-10
65
with respect to this Security, whether at the scheduled 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 payment date or
scheduled maturity date thereof, as specified herein, the scheduled 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 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 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,
B-1l
66
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 $5,000,000 principal amount
of Securities, by wire transfer to an account maintained by the payee with a
bank if such registered holder so elects by giving notice to the Fiscal Agent,
not less than 15 days (or such fewer days as the Fiscal Agent may accept at its
discretion) prior to the date on which such payments are scheduled to be made,
of such election and of the account to which payments are to be made. Unless
such designation is revoked, any such designation made by such holder with
respect to such Securities shall remain in effect with respect to any future
payments with respect to such Securities payable to such holder. The Issuer
shall pay any reasonable administrative costs in connection with making any such
payments. The Fiscal Agent shall arrange directly with any other Paying Agent
who may have been appointed by the Issuer pursuant to the provisions of Section
2 of the Fiscal Agency Agreement for the payment from funds so paid by the
Issuer of the principal of and any interest on this Security. Any monies held in
respect of this Security remaining unclaimed at the end of two years after such
principal and such interest shall have become payable in accordance with the
Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and
monies sufficient thereof or 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 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
B-12
67
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 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,
(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
B-13
68
and principal of the Securities on the scheduled 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 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 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 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 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 payment date or such scheduled maturity date.
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
B-14
69
make such payment and (iii) the Issuer has delivered to the Fiscal Agent an
Officer's Certificate stating that such demutualization, merger, consolidation,
sale, conveyance, transfer or other disposition complies with this paragraph and
that all conditions precedent herein provided for relating to such transaction
have been complied with. In the event of the assumption by a successor
corporation of the obligations of the Issuer as provided in clause (i)(B) of
the immediately preceding sentence, such successor corporation shall succeed to
and be substituted for the Issuer hereunder and under the Fiscal Agency
Agreement and all such obligations of the Issuer shall terminate.
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 or 91-38 (or
any amendment thereof) or another applicable exemption from the prohibitions
under Section 406 of ERISA and Section 4975 of the Code. The purchase by any
Person of this Security shall constitute a representation by such Person to the
Issuer and the Fiscal Agent that such Person either (i) is not a Plan or (ii) is
a Plan, and may acquire this Security under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
restrictions on purchases of the Securities set forth in this Paragraph 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 Paragraph, to the prior payment in full of all Indebtedness, Policy Claims
and Other Creditor Claims (each as hereinafter defined), in accordance with
Section 7435 of the New York Insurance Law (together with any successor
provision, and as may be hereafter amended from time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation, conservation, dissolution or reorganization
proceeding relating to the Issuer or its property, the priority of claims of
Security holders shall be determined in accordance with Section 7435. In a
proceeding commenced under Article 74 of the New York
B-15
70
Insurance Law, claims for principal of or interest on the Securities constitute
Class 7 claims under Section 7435, as currently in effect. If the Superintendent
approves a payment of principal of or interest on the Securities in an amount
that is less than the full amount of principal of and interest on the Securities
then scheduled to be paid in respect of the Securities, payment of such partial
amount shall be made pro rata among Security holders as their interests may
appear.
(c) If a distribution is made to Security holders that, because of
this Paragraph, should not have been made to them, the Security holders who
receive the distribution shall hold it in trust for holders of Policy Claims,
Indebtedness and Other Creditor Claims and pay it over to them as their
interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the Paying
Agent of any facts known to the Issuer that would cause a payment of principal
of or interest on the Securities to violate this Paragraph.
(e) This Paragraph defines the relative rights of Security holders,
on the one hand, and holders of any other claims, in accordance with Section
7435, on the 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
X-00
00
Xxxxxxxxx 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 indebtedness of the Issuer which
by its express terms is subordinated in right of payment to, or ranks equally
with, the Securities shall not constitute Indebtedness. However, under current
law the Issuer cannot issue any indebtedness which by its terms is subordinate
to the Securities. In addition, any other surplus notes or similar obligations
of the Issuer shall not constitute Indebtedness and will rank pari passu with
the Securities.
As used herein, "Policy Claims" shall mean all existing or future
claims of policyholders or beneficiaries, as the case may be, under any and all
existing or future policies, endorsements, riders and other contracts of
insurance, annuity contracts, including, without limitation, guaranteed
investment contracts, and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or hereafter created, all claims 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
B- 17
72
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.
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 them to save each of them 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
B-l8
73
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 of this series
present at a meeting duly called pursuant thereto or by written consent of such
percentage of the principal amount of all Outstanding Securities, the Issuer and
the Fiscal Agent may, with the prior approval of the Superintendent, modify,
amend or supplement the Fiscal Agency Agreement or the terms of the Securities
of this series 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 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
B- 19
74
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 of all Series will upon the obtaining
of such an order or the granting of such approval immediately mature in full
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 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
B-20
75
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 payment or scheduled maturity dates expressed in such
Securities, or to bring suit for the enforcement of any such payment on or after
such respective scheduled payment or scheduled maturity dates, 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. (a) Subject to the approval of the Superintendent pursuant to
Section 1307, the Notes are subject to redemption at any time on or after
November 1, 2003, as a whole or in part, at the election of the Issuer at the
following redemption prices (expressed as percentages of principal amount)
during the 12-month period beginning November 1 of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
2003 103.529% 2008 101.764%
2004 103.176% 2009 101.411%
2005 102.823% 2010 101.059%
2006 102.470% 2011 100.706%
2007 102.117% 2012 100.353%
and thereafter at a redemption price equal to 100% of the principal amount,
together in each case with accrued interest (except where the date of such
redemption is a Scheduled Interest Payment Date) to the date of such redemption
(subject to the prior approval of the Superintendent pursuant to Section 1307),
but interest installments the payment of which have been approved by the
Superintendent and which are payable on or prior to such date of redemption will
be payable to the holders of record of such Securities at the close of business
on the relevant Record Dates set forth herein. Partial redemptions must be in
an amount not less than $1,000,000 aggregate principal amount of Securities.
B-21
76
(b) In the case of any partial redemption of Securities, the
Securities to be redeemed shall be selected by the Fiscal Agent not less than 30
days prior to the date of such redemption, from the Outstanding Securities not
previously called for redemption, by such method as the Fiscal Agent shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to $250,000 or any integral multiple thereof) of the principal
amount of registered Securities of a denomination larger than $500,000.
(c) Notices to redeem Securities shall be given to holders of
Securities in writing mailed, first-class postage prepaid, to each holder of
registered Securities, or portions thereof, so to be redeemed, at his address as
it appears in the Security Register. Such notice will be given once not more
than 60 days nor less than 30 days prior to the date fixed for redemption. If by
reason of the suspension of regular mail service, or by reason of any other
cause, it shall be impracticable to give notice to the holders of Securities in
the manner prescribed herein, then such notification in lieu thereof as shall be
made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of
the Issuer shall constitute sufficient provision of such notice, if such
notification shall, so far as may be practicable, approximate the terms and
conditions of the mailed notice in lieu of which it is given. Neither the
failure to give notice nor any defect in any notice given to any particular
holder of a Security shall affect the sufficiency of any notice with respect to
other Securities. Notices to redeem Securities shall specify the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of the Securities to be redeemed
(or portion thereof in the case of a partial redemption), that interest accrued
to the date fixed for redemption (unless the date of redemption is a Scheduled
Interest Payment Date) will be paid as specified in said notice, and that on and
after said date interest thereon will cease to accrue if the Notes scheduled to
mature on November 1, 2023 are so redeemed. In addition, in the case of a
partial redemption, the Redemption Notice shall specify the Securities called
for redemption and the aggregate principal amount of the Securities to remain
Outstanding after the redemption.
(d) If notice of redemption has been given in the manner set forth
in Paragraph 15(c) hereof, the Securities so to be redeemed shall be payable in
full on the date specified in such notice and upon presentation and surrender of
the Securities at the place or places specified in such
B-22
77
notice, the Securities shall be paid and redeemed by the Issuer at the places
and in the manner and currency herein specified and at the redemption price
together with accrued interest (unless the redemption date is a Scheduled
Interest Payment Date) to the redemption date. From and after the redemption
date, if monies for the redemption of Securities called for redemption shall
have been made available at the Principal Office of the Fiscal Agent for
redemption on the redemption date, the Securities called for redemption shall
cease to bear interest, and the only right of the holders with respect to such
Securities or portion thereof being redeemed shall be to receive payment of the
redemption price together with accrued interest (unless the redemption date is
an Interest Payment Date) to the redemption date as aforesaid. If monies for the
redemption of the Securities are not made available for payment until after the
redemption date, the Securities called for redemption shall not cease to bear
interest until such monies have been so made available.
(e) Any Security which is to be redeemed only in part shall be
surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Fiscal Agent duly executed by, the holder thereof or his attorney duly
authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver to the holder of such Security without service charge,
a new registered Security or Securities, of any authorized denomination as
requested by such holder, and as permitted by Section 1(d) of the Agreement, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.]
16. 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.
B-23
78
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER OF
RESTRICTED DEFINITIVE SECURITY
(Transfers and exchanges pursuant to ss.6(b)
of the Fiscal Agency Agreement)
The Chase Manhattan Bank, N.A.
as Fiscal Agent
0 Xxxxx XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Metropolitan Life Insurance Company,
____% Surplus Notes scheduled to
mature on November 1, (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated as of
November 1, 1993 (the "Fiscal Agency Agreement"), between Metropolitan Life
Insurance Company, as Issuer, and The Chase Manhattan Bank, N.A., as Fiscal
Agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Fiscal Agency Agreement.
This letter relates to $_________________ principal amount of
Restricted Definitive Securities held in definitive form by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 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:
(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
C-1
79
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.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchasers. Terms used in
this certificate and not otherwise defined in the Fiscal Agency Agreement have
the meanings set forth in Regulation S under the Act.
[Insert Name of Transferor]
By:__________________________
Name:
Title:
Dated: _________________, ________
cc: Metropolitan Life Insurance Company
C-2
80
EXHIBIT D
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
SECURITY TO REGULATION S GLOBAL SECURITY (Transfers
Pursuant to ss. 6(c) (ii) of the Fiscal Agency Agreement)
The Chase Manhattan Bank, N.A.
as Fiscal Agent
0 Xxxxx XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Metropolitan Life Insurance Company,
____% Surplus Notes scheduled to
mature on November 1, (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated as of
November 1, 1993 (the "Fiscal Agency Agreement"), between Metropolitan Life
Insurance Company, as Issuer, and The Chase Manhattan Bank, N.A., as Fiscal
Agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Fiscal Agency Agreement.
This letter relates to $_________________ principal amount of Securities
which are evidenced by a Restricted Global Security (CUSIP No. ________) and
held with the U.S. Depositary in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a person who will take delivery thereof in the
form of an equal principal amount of Securities evidenced by a Regulation S
Global Security (CUSIP No. ___________), which amount, immediately after such
transfer, is to be held with the U.S. Depositary through Euroclear or CEDEL or
both (Common Code _______).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with 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:
(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
D- 1
81
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 contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above was held with the U.S Depositary
through Euroclear or CEDEL or both (Common Code _______
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Purchasers. Terms used in this
certificate and not otherwise defined in the Fiscal Agency Agreement have the
meanings set forth in Regulation S under the Act.
[Insert Name of Transferor]
By:__________________________
Name:
Title:
Dated: _________________, ________
cc: Metropolitan Life Insurance Company
D-2
82
EXHIBIT E
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
SECURITY TO UNRESTRICTED GLOBAL SECURITY
(Transfers Pursuant to ss.6 (c) (iii)
of the Fiscal Agency Agreement)
The Chase Manhattan Bank, N.A.
as Fiscal Agent
0 Xxxxx XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Metropolitan Life Insurance Company,
____% Surplus Notes scheduled to mature on
November 1. (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated as of
November 1, 1993 (the "Fiscal Agency Agreement"), between Metropolitan Life
Insurance Company, as Issuer, and The Chase Manhattan Bank, N.A., as Fiscal
Agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Fiscal Agency Agreement.
This letter relates to $__________________ principal amount of
Securities which are evidenced by a Restricted Global Security (CUSIP No.
_________) and held with the U.S. Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by an
Unrestricted Global Security (CUSIP No._________).
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the Act and
accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a person in
the United States;
X- 0
00
(X) either:
(i) 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
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(C) 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
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the United States Securities Act
of 1933, as amended (the "Act"); or
(2) if the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchasers.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated:________________, ______
cc: Metropolitan Life Insurance Company
X-0
00
XXXXXXX X
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM REGULATION S GLOBAL
SECURITY TO RESTRICTED GLOBAL SECURITY (Transfers
Pursuant to ss. 6(c) (iv) of the Fiscal Agency Agreement)
The Chase Manhattan Bank, N.A.
as Fiscal Agent
0 Xxxxx XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Metropolitan Life Insurance Company,
____% Surplus Notes scheduled to
mature on November 1, (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated as of
November 1, 1993 (the "Fiscal Agency Agreement"), between Metropolitan Life
Insurance Company, as Issuer, and The Chase Manhattan Bank, N.A., as Fiscal
Agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Fiscal Agency Agreement.
This letter relates to $_______________ principal amount of
Securities which are evidenced by a Regulation S Global Security (CUSIP No.
________) and held with the U.S. Depository through [Euroclear] [CEDEL] (Common
Code _______ in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in Securities to
a person that will take delivery thereof in the form of an equal principal
amount of Securities evidenced by a Restricted Global Security (CUSIP No._____).
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such transfer is being effected pursuant
to and in accordance with Rule 144A under the Act and, accordingly, the
Transferor does hereby further certify that the Securities are being transferred
to a person that the Transferor reasonably believes is purchasing the Securities
for its own account, or for one or more accounts with respect to which such
person exercises sole investment discretion, and such person and each such
account is a "qualified institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United States
or any other jurisdiction.
F-1
85
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchasers.
[Insert Name of Transferor]
By:__________________________
Name:
Title:
Dated: _________________, ________
cc: Metropolitan Life Insurance Company
86
EXHIBIT G-l
EXHIBIT G-1
FORM OF OWNER SECURITIES CERTIFICATION
CERTIFICATE
METROPOLITAN LIFE INSURANCE COMPANY
____% Surplus Notes scheduled to mature on November 1, ________
This is to certify that, as of the date hereof, except as set forth
below, the above-referenced Securities held by you for our account are
beneficially owned by (a) non-U.S. person(s) or non-U.S. person(s) who purchased
the Securities in transactions which did not require registration under the Act.
As used in this paragraph the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act of 1933, as amended (the "Act").
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
[This certification excepts and does not relate to $________________
of such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.]
G-1
87
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:_____________________________________, _______*
[Name of Person Making Certification]
By:__________________________________________________
------------
* To be dated no earlier than 15 days prior to the exchange date to which
the certification relates.
EXHIBIT G-2
88
EXHIBIT G-2
FORM OF DEPOSITARY SECURITIES CERTIFICATION
(TO BE GIVEN BY THE EUROCLEAR OPERATOR OR CEDEL S.A.)
CERTIFICATE
METROPOLITAN LIFE INSURANCE COMPANY
__% Surplus Notes scheduled to mature on November 1, ______
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Fiscal Agency Agreement, as of the date hereof,
$____________ principal amount of the above-captioned Securities is owned by
non-U.S. persons or U.S. persons who purchased the Securities in transactions
which did not require registration under the United States Securities Act of
1933, as amended.
We further certify (i) that we are not making available herewith for
exchange any portion of the Regulation S Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with
G-2-l
89
which this certification is or would be relevant, we irrevocably authorize you
to produce this certification to any interested party in such proceedings.
Dated:________________________________________, ______*
[Name of Person Making Certification]
By:____________________________________________________
-------------
* To be dated no earlier than 15 days prior to the exchange date to which the
certification relates.
G-2-2
