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Exhibit 10.46
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FISCAL AGENCY AGREEMENT
between
METROPOLITAN LIFE INSURANCE COMPANY,
Issuer
and
THE CHASE MANHATTAN BANK, N. A.,
Fiscal Agent
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Dated as of November 13, 1995
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7% Surplus Notes scheduled to mature on November 1, 2005
7.70% Surplus Notes scheduled to mature on November 1, 2015
7.80% Surplus Notes scheduled to mature on November 1, 2025
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TABLE OF CONTENTS
Page
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1. The Securities ........................................... 1
(a) General ............................................ 1
(b) Forms of Securities ................................ 1
(c) Book-Entry Provisions .............................. 3
(d) Denominations ...................................... 4
2. Fiscal Agent; Other Agents ............................... 4
3. Authentication
4. Payment and Cancellation ................................. 6
(a) Payment .............................................. 6
(b) Cancellation ......................................... 7
5. Global Securities ........................................ 8
6. Registration, Transfer and
Exchange of Securities .................................. 9
(a) General ............................................. 9
(b) Transfers of Restricted Definitive
Securities ........................................ 10
(c) Transfer of Global Securities and
Interests Therein ................................. 11
(d) Successive Registrations ............................ 11
(e) Information ......................................... 11
(f) Suspension .......................................... 11
(g) Legends ............................................. 11
(h) ...................................................... 12
(i) ...................................................... 12
7. Delivery of Certain Information .......................... 12
(a) Rule 144A Information ............................... 12
(b) Periodic Reports .................................... 13
8. Conditions of Fiscal Agent's Obligations ................. 13
(a) Compensation and Indemnity .......................... 13
(b) Agency .............................................. 13
(c) Advice of Counsel ................................... 14
(d) Reliance ............................................ 14
(e) Interest in Securities, Etc. ........................ 14
(t) Non-Liability for Interest .......................... 14
(g) Certifications ...................................... 15
(h) No Implied Obligations .............................. 15
9. Resignation and Appointment of Successor ................. 15
(a) Fiscal Agent and Paying Agent ........................ 15
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(b) Resignation .......................................... 15
(c) Successors ........................................... 16
(d) Acknowledgement ...................................... 17
(e) Merger, Consolidation, Etc. .......................... 17
10. Meetings and Amendments ................................... 18
(a) Calling of Meeting, Notice and Quorum ............... 18
(b) Approval ............................................ 19
(c) Binding Nature of Amendments,
Notices, Notations, Etc. .......................... 21
(d) "Outstanding" Defined ............................... 22
11. Governing Law ............................................. 22
12. Notices ................................................... 22
13. Separability .............................................. 23
14. Headings .................................................. 23
15. Counterparts .............................................. 23
EXHIBIT A FORM OF DEFINITIVE SECURITY .......................... A-1
EXHIBIT B FORM OF GLOBAL SECURITY .............................. B-1
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR
EXCHANGE OR TRANSFER OF RESTRICTED
DEFINITIVE SECURITY ................................ C-1
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FISCAL AGENCY AGREEMENT, dated as of November 13, 1995, 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
$250,000,000 principal amount of 7% Surplus Notes scheduled to mature on
November 1, 2005 (the "Notes scheduled to mature 2005"), $200,000,000 principal
amount of 7.70% Surplus Notes scheduled to mature on November 1, 2015 (the
"Notes scheduled to mature 2015") and $250,000,000 principal amount of 7.80%
Surplus Notes scheduled to mature on November 1, 2025 (the "Notes scheduled to
mature 2025") . The Notes scheduled to mature 2005, the Notes scheduled to
mature 2015 and the Notes scheduled to mature 2025 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 2005 are scheduled to mature on November 1, 2005,
the Notes scheduled to mature 2015 are scheduled to mature on November 1, 2015,
and the Notes scheduled to mature 2025 are scheduled to mature on November 1,
2025 (each such date, with respect to its respective series, the "Scheduled
Maturity Date") . Any reference herein to the term "scheduled maturity date" or
other date for the payment of principal of the Notes shall include the date upon
which any state or federal agency obtains an order or grants approval for the
rehabilitation, liquidation, conservation or dissolution of the Issuer.
(b) Forms of Securities. The Securities are being offered and sold
by the Issuer pursuant to a Purchase Agreement, dated November 8, 1995 (as may
be amended, the
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"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 institutional
investors that are "accredited investors", within the meaning of Rule 501(a)
(l), (2), (3) or (7), or, if the equity owners thereof all meet one or more of
the foregoing criteria, Rule 501 (a) (8) under the Securities Act of 1933, as
amended (the "Act") ("Accredited Investors"), 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 "global Securities") in definitive, fully
registered form without interest coupons, substantially in the form of Security
attached as Exhibit B hereto, with such applicable legends as are provided for
in Exhibit B. Each such global Security shall be registered in the name of a
nominee of The Depository Trust Company (the "Depositary") and deposited with
the Fiscal Agent, at its New York office, as custodian for the Depositary, duly
executed by the Issuer and authenticated by the Fiscal Agent as hereinafter
provided. The aggregate principal amount of each global Security may from time
to time be increased or decreased by adjustments made on the records of the
Fiscal Agent, as custodian for the Depositary, as hereinafter provided.
All Securities shall be issued substantially in the form of Security
attached hereto as either Exhibit A or B and shall be executed manually or in
facsimile on behalf of the Issuer by any two of its Chairman of the Board,
President, Chief Financial Officer, Executive Vice Presidents, Senior Vice
Presidents or Secretary (the "Authorized Officers"), notwithstanding that such
officers, or any of them, shall have ceased, for any reason, to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of any such Security. The Securities (i) may also
have such additional provisions, omissions, variations or substitutions as are
not inconsistent with the provisions of this Agreement, and (ii) may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with this
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Agreement, any law or with any rules made pursuant thereto or with the rules of
any securities exchange, insurance regulatory or other governmental agency or
depositary therefor or as may, consistently herewith, be determined by the
Authorized Officers executing such Securities, in each case (i) and (ii) as
conclusively evidenced by their 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 global Securities that are registered
in the name of the Depositary or a nominee thereof.
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) (ii) hereof, which (A) shall
be registered in the name of the Depositary or its nominee, (B) shall be
delivered by the Fiscal Agent to the Depositary or pursuant to the Depositary's
instructions and (C) shall bear legends substantially to the following effect:
"Unless this Security is presented by an authorized representative
of [insert name of Depositary] to the Issuer or its agent for
registration of transfer, exchange or payment, and any Security
issued in exchange for this Security or any portion hereof is
registered in the name of (insert name of nominee of Depositary] or
in such other name as is requested by an authorized representative
of [insert name of Depositary] (and any payment is made to [insert
name of nominee of Depositary] or to such other entity as is
requested by an authorized representative of [insert name of
Depositary]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON OTHER THAN [insert name of Depositary]
OR A NOMINEE THEREOF IS WRONGFUL inasmuch as the registered owner
hereof, [insert name of nominee of Depositary], has an interest
herein."
"This Security is a global Security within the meaning of the Fiscal
Agency Agreement referred to hereinafter. This global Security may
not be exchanged, in whole or in part, for a Security registered in
the name of any person other than [insert name of Depositary] or a
nominee thereof,
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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 Depositary ("Agent
Members") nor any other persons on whose behalf Agent Members may act shall have
any rights under this Fiscal Agency Agreement with respect to any global
Security registered in the name of the Depositary or any nominee thereof, or
under any such global Security, and the Depositary or such nominee, as the case
may be, may be treated by the Issuer, the Fiscal Agent and any agent of the
Issuer or the Fiscal Agent as the absolute owner and holder of such global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or
the Fiscal Agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be,
or impair, as between the Depositary, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary practices of
such persons governing the exercise of the rights of a holder of any Security.
(d) Denominations. The Securities and beneficial interests in global
Securities shall be issuable in minimum denominations of $250,000 and any amount
in excess thereof that is an integral multiple of $1,000.
2. Fiscal Agent; Other Agents.
The Issuer hereby appoints The Chase Manhattan Bank, N.A., acting
through its corporate trust office at 0 Xxxxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 and payment office at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0X;
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
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upon it in the Securities and hereby and such further powers and authority to
act on behalf of the Issuer as may be mutually agreed upon by the Issuer and the
Fiscal Agent. The Fiscal Agent shall keep a copy of this Agreement available for
inspection during normal business hours at its Corporate Trust Office. The
Fiscal Agent or any Paying Agent (as defined below) shall also act as Transfer
Agent (as defined below). All of the terms and provisions with respect to such
powers and authority contained in the Securities are subject to and governed by
the terms and provisions hereof.
The Issuer may, at its discretion, appoint one or more agents (a
"Paying Agent" or "Paying Agents") for the payment, to the extent permitted
under the Payment Restrictions, of the principal of and any interest on the
Securities, and one or more agents (a "Transfer Agent" or "Transfer Agents") for
the transfer and exchange of Securities, at such place or places as the Issuer
may determine; provided, however, that the Issuer shall at all times maintain a
Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New
York (which Paying Agent and Transfer Agent may be the Fiscal Agent). The Issuer
hereby initially appoints the Fiscal Agent at its Corporate Trust Office as
principal Paying Agent, Transfer Agent, authenticating agent and securities
registrar, and the Fiscal Agent hereby accepts such appointment. Each Transfer
Agent shall act as a security registrar and there shall be kept at the office of
each Transfer Agent a register in which, subject to such reasonable regulations
as the Issuer may prescribe, the Issuer shall provide for the registration of
Securities and the registration of transfers of Securities. The Issuer shall
promptly notify the Fiscal Agent of the name and address of any other Paying
Agent or Transfer Agent appointed by it and will notify the Fiscal Agent of the
resignation or termination of any such Paying Agent or Transfer Agent. Subject
to the provisions of Section 9(c) hereof, the Issuer may vary or terminate the
appointment of any such Paying Agent or Transfer Agent at any time and from time
to time upon giving not less than 90 days' notice to such Paying Agent or
Transfer Agent, as the case may be, and to the Fiscal Agent. The Issuer shall
cause notice of any resignation, termination or appointment of the Fiscal Agent
or any Paying Agent or Transfer Agent and of any change in the office through
which any such Agent will act to be provided to holders of Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly
executed on behalf of the Issuer for the
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purposes of the original issuance of Securities, (i) to authenticate said
Securities in an aggregate principal amount not in excess of $250,000,000 in the
case of the Notes scheduled to mature 2005, $200,000,000 in the case of the
Notes scheduled to mature 2015, and $250,000,000 in the case of the Notes
scheduled to mature 2025, 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.
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
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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 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, 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.
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5. Global Securities.
(a) Notwithstanding any other provisions of this Agreement or the
Securities, a global Security shall not be exchanged in whole or in part for a
Security registered in the name of any person other than the Depositary or one
or more nominees thereof, provided that a global Security may also be exchanged
for Securities registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has notified the Issuer that it
is unwilling or unable to continue as Depositary for such global Security or
such Depositary has ceased to be a "clearing agency" registered under the
Securities Exchange Act of 1934 (as may be hereafter amended from time to time,
the "Exchange Act"), (ii) an event described in paragraph 14(a) or the first
sentence of paragraph 14(b) of the Securities has occurred and is continuing
with respect to the Securities, (iii) a request for certificates has been made
upon 60 days' prior written notice given to the Fiscal Agent in accordance with
the Depositary's customary procedures and a copy of such notice has been
received by the Issuer from the Fiscal Agent, or (iv) the holder of an interest
(other than the initial purchaser thereof) in such global Security has notified
the Fiscal Agent and registrar in writing that it is transferring such
beneficial interest to an Accredited Investor who is not a "qualified
institutional buyer" within the meaning of Rule 144A, who is required to hold
its beneficial interest in the Securities in the form of a definitive Security.
Any global Security exchanged pursuant to clause (i) above shall be so exchanged
in whole and not in part and any global Security exchanged pursuant to clause
(ii), (iii) or (iv) above may be exchanged in whole or from time to time in part
as directed by the Depositary. Any Security issued in exchange for a global
Security or any portion thereof shall be a global Security, provided that any
such Security so issued that is registered in the name of a person other than
the Depositary or a nominee thereof shall not be a global Security.
(b) Securities issued in exchange for a global Security or any
portion thereof in accordance with Section 5(a) shall be issued in definitive,
fully registered form, without interest coupons, shall have an aggregate
principal amount equal to that of such global Security or portion thereof to be
so exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the applicable
legends provided for herein, including, except as otherwise provided by Section
6(g), the legend regarding transfer restrictions applicable to the global
Security set forth on the form of Security attached as Exhibit B hereto. Any
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global Security to be exchanged in whole shall be surrendered by the Depositary
to the Transfer Agent located in the Borough of Manhattan, The City of New York,
to be so exchanged. With regard to any global Security to be exchanged in part,
either such global Security shall be so surrendered for exchange or, if the
Fiscal Agent is acting as custodian for the Depositary or its nominee with
respect to such global Security, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Fiscal Agent. Upon any such
surrender or adjustment, the Fiscal Agent shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(c) Subject to the provisions of Section 1(c) above, the registered
holder may grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent Members, to take any
action which a holder is entitled to take under this Fiscal Agency Agreement or
the Securities.
(d) In the event of the occurrence of any of the events specified in
paragraph (a) of this Section 5, the Issuer will promptly make available to the
Fiscal Agent a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
6. Registration, Transfer and Exchange of Securities.
(a) General. The Fiscal Agent, as agent of the Issuer for this
purpose, shall maintain at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, a register of Securities for the registration
of Securities and the transfers and exchanges thereof. Subject to the provisions
of this Section 6, upon presentation for transfer or exchange of any Security at
the office of any Transfer Agent accompanied by a written instrument of transfer
or exchange in the form approved by the Issuer (it being understood that, until
notice to the contrary is given to holders of Securities, the Issuer shall be
deemed to have approved the form of instrument of transfer or exchange, if any,
printed on any Security), executed by the registered holder, in person or by
such holder's attorney thereunto duly authorized in writing, such Security shall
be transferred upon the register for the Securities, and a new Security shall be
authenticated and issued in the name of the transferee.
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(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:
(1) if such Restricted Definitive Security is owned by the holder
thereof and is being exchanged, without transfer, or if such Restricted
Definitive Security is being transferred pursuant to an exemption from
registration in accordance with Rule 144A, Rule 144 or Regulation S under
the Act, a certification from such holder to that effect, substantially in
the form of Exhibit C hereto; or
(2) if the Restricted Definitive Security being transferred or
exchanged contains a restrictive legend, certification to the effect that
such transfer or exchange is in accordance with the restrictions contained
in such legend, 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
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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. A global
Security may not be transferred, in whole or in part, to any person other than
the Depositary or a nominee thereof, and no such transfer to any such other
person may be registered; provided that this paragraph (c) shall not prohibit
any transfer of a Security that is issued in exchange for a global Security but
is not itself a global Security. No transfer of a Security to any person shall
be effective under this Agreement or the Securities unless and until such
Security has been registered in the name of such person.
(d) Successive Registrations. Successive registrations and
registrations of transfers and exchanges as aforesaid may be made from time to
time as desired, and each such registration shall be noted on the Security
register. No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Fiscal Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith and any other amounts required to be paid by the provisions of the
Securities.
(e) Information. Any Transfer Agent appointed pursuant to Section 2
hereof shall provide to the Fiscal Agent such information as the Fiscal Agent
may reasonably require in connection with the delivery by such Transfer Agent of
Securities upon transfer or exchange of Securities.
(f) Suspension. No Transfer Agent shall be required to make
registrations of transfer or exchange of Securities during any periods
designated in the text of the Securities as periods during which such
registration of transfer and exchanges need not be made.
(g) Legends. If Securities are issued upon the transfer, exchange or
replacement of Securities not bearing the legends required, as applicable, by
the form of Security attached as Exhibit A or Exhibit B hereto (collectively,
the "Legend"), the Securities so issued shall not bear the Legend. If
Securities are issued upon the transfer, exchange or replacement of Securities
bearing the Legend, or if a request is made to remove the Legend on a Security,
the Securities so issued shall bear the Legend, or the Legend shall not be
removed, as the case may be, unless there is
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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 2005, the Notes scheduled to
mature 2015 and the Notes scheduled to mature 2025 may not be redeemed at the
option of the Issuer or any holder of such Notes.
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 definitive Security or the holder of a global Security or a beneficial
interest in a global Security, the Issuer shall promptly furnish or cause to be
furnished "Rule 144A Information" (as defined below) to such holder, or to a
prospective purchaser of such Security or interest designated by such holder, in
order to permit compliance by such holder with Rule 144A under the Act in
connection with the resale of such Security by such holder. "Rule 144A
Information" shall be such information as is specified pursuant to paragraph
(d)(4) of Rule 144A (or any successor provision thereto), as such provisions
(or successor provision) may be amended from time to time.
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(b) Periodic Reports. The Issuer shall deliver (or shall cause the
Fiscal Agent to deliver) to each holder of a definitive 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 definitive
Security or the holder of a global Security or a beneficial interest in a global
Security, the Issuer shall promptly furnish or cause to be furnished to such
holder one copy of the annual and quarterly statutory-basis financial statements
of the Issuer as filed by the Issuer with the New York Department of Insurance.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the Issuer
agrees and all of which are applicable to the Securities and the holders from
time to time thereof:
(a) Compensation and Indemnity. The Fiscal Agent shall be entitled
to reasonable compensation as agreed with the Issuer for all services rendered
by it, and the Issuer agrees promptly to pay such compensation and to reimburse
the Fiscal Agent for the reasonable out-of-pocket expenses (including reasonable
counsel fees and expenses) incurred by it in connection with or arising out of
its services hereunder, or the issuance of the Securities and their offering and
sale. The Issuer also agrees to indemnify the Fiscal Agent for, and to hold it
harmless against, any loss, 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
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herein and in the Securities; provided, however, that monies held in respect of
the Securities remaining unclaimed at the end of two years after such principal
and such interest shall have become payable in accordance with the Payment
Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies
sufficient therefor shall have been duly made available for payment shall,
together with any interest made available for payment thereon, be repaid to the
Issuer. Upon such repayment, the aforesaid trust with respect to the Securities
shall terminate and all liability of the Fiscal Agent and Paying Agents with
respect to such funds shall thereupon cease.
(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
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to any of the provisions of this Agreement or the Securities.
(g) Certifications. Whenever in the administration of this Agreement
the Fiscal Agent shall deem it desirable that a matter of fact be proved or
established prior to taking, suffering or omitting any action hereunder, the
Fiscal Agent (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith or negligence on its part, rely upon a certificate
signed by an Authorized Officer and delivered to the Fiscal Agent as to such
matter of fact.
(h) No Implied Obligations. The duties and obligations of the Fiscal
Agent and the Issuer with respect to matters governed by this Agreement shall be
determined solely by the express provisions hereof, and neither the Fiscal Agent
nor the Issuer shall be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement and the Securities,
as applicable, and no implied covenants or obligations shall be read into this
Agreement or the Securities against either the Fiscal Agent or the Issuer.
Nothing in this Agreement shall be construed to require the Fiscal Agent to
advance or expend its own funds.
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
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which such notice is given, unless the Issuer agrees to accept shorter notice.
The Fiscal Agent hereunder may be removed at any time by the filing with it of
an instrument in writing signed on behalf of the Issuer and specifying such
removal and the date when it shall become effective. Notwithstanding the dates
of effectiveness of resignation or removal, as the case may be, to be specified
in accordance with the preceding sentences, such resignation or removal shall
take effect only upon the appointment by the Issuer, as hereinafter provided, of
a successor Fiscal Agent (which, to qualify as such, shall for all purposes
hereunder be a bank or trust company organized and doing business under the laws
of the United States of America or of the State of New York, in good standing
and having 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
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Agent, as the case may be, so succeeded shall cease to be Fiscal Agent or Paying
Agent, as the case may be, hereunder. If no successor Fiscal Agent or other
Paying Agent, as the case may be, shall have been so appointed by the Issuer and
shall have accepted appointment as hereinafter provided, and, in the case of
such other Paying Agent, if such other Paying Agent is the only Paying Agent
located in a place where, by the terms of the Securities or this Agreement, the
Issuer is required to maintain a Paying Agent, then any holder of a Security who
has been a bona fide holder of a Security for at least six months (which
Security, in the case of such other Paying Agent, is referred to in this
sentence), on behalf of himself and all others similarly situated, or the Fiscal
Agent, may petition any court of competent jurisdiction for the appointment of a
successor fiscal or paying agent, as the case may be. The Issuer shall give
prompt written notice to each other Paying Agent of the appointment of a
successor Fiscal Agent.
(d) Acknowledgement. Any successor Fiscal Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Issuer an
instrument accepting such appointment hereunder, and thereupon such successor
Fiscal Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Fiscal Agent hereunder and all provisions hereof shall be binding on such
successor Fiscal Agent, and such predecessor, upon payment of its compensation
and reimbursement of its disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Fiscal Agent
shall be entitled to receive, all monies, securities, books, records or other
property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, Etc. Any bank or trust company into which
the Fiscal Agent hereunder may be merged, or resulting from any merger or
consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal
Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Fiscal Agent, provided that it shall be qualified as aforesaid,
shall be the successor Fiscal Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
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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 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
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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 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 represented at such meeting, or (ii) with the written
consent of the holders of not less than a majority in aggregate principal amount
of the Securities 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
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of such Series, (B) reduce the principal amount of any Security of such Series
or the interest rate thereon, (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 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
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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.
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 therefor or in lieu thereof.
Any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action taken, made or given in
accordance with Section 10(b) hereof shall be conclusive and binding on all
holders of Securities 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,
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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.
(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 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 XX XXX XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA.
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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 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: (212)
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
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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/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President
and Treasurer
THE CHASE MANHATTAN BANK, N.A.
By: /s/ X.X. Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
Title: Vice-President
Attest: /s/ Xxxxxxxx Xxxxx
----------------------------
XXXXXXXX XXXXX
ASSISTANT SECRETARY
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EXHIBIT A
FORM OF DEFINITIVE SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS MAY BE
HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
[INCLUDE IF SECURITY IS A DEFINITIVE SECURITY OR SECURITY ISSUED IN
EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(G) OF THE FISCAL AGENCY
AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)] -- THE HOLDER
OF THIS SECURITY AGREES FOR THE BENEFIT OF METROPOLITAN LIFE INSURANCE COMPANY
(THE "ISSUER") THAT (A) THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (l) 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 $250,000 IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, 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 (l)
ABOVE AND, IN ADDITION, IN A MINIMUM PRINCIPAL AMOUNT OF $250,000 TO AN
INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR", AS DEFINED IN RULE
501(a) (l), (2), (3) OR (7) OR, IF THE EQUITY OWNERS THEREOF ALL MEET ONE OR
MORE OF THE FOREGOING CRITERIA, RULE 501 (a) (8), 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 THE ISSUER
THAT, IF THE HOLDER PROPOSES TO SELL OR TRANSFER THIS SECURITY TO ANY EMPLOYEE
BENEFIT PLAN (AS
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29
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 INTEREST ON THIS SECURITY MAY ONLY BE MADE
OUT OF THE ISSUER'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 THE ISSUER WARRANTS THE MAKING OF SUCH PAYMENTS.
X-0
00
XXXXXXXXXXXX LIFE INSURANCE COMPANY
___% Surplus Note scheduled to mature on November 1, 20___
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, 20__ (the "Scheduled Maturity Date") , and to pay
interest thereon, subject to the approval of the Superintendent pursuant to
Section 1307, from November 1, 1995 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, 1996 (each a
"Scheduled Interest Payment Date"), at the rate of ___% per annum, until the
principal hereof is paid or duly provided for. This Security is not subject to
redemption prior to the Scheduled Maturity Date. The date upon which any state
or federal agency obtains an order or grants approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer 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 defined on the reverse
hereof), 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.
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31
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 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,
A-4
32
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
33
FORM OF REVERSE
1. This Security is one of a duly authorized issue of __% Surplus
Notes scheduled to mature on November 1, 20__ 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 __________, 1995 (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, 20__.
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.
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.
2. The Securities are issuable only in fully registered form without
coupons. Securities are issuable in minimum denominations of $250,000 and
integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The City
of New York, a Transfer Agent where Securities may be registered or surrendered
for registration
A - 6
34
of transfer or exchange. The Issuer has initially appointed the corporate trust
office of the Fiscal Agent as its Transfer Agent in the Borough of Manhattan,
The City of New York. The Issuer shall cause each Transfer Agent to act as a
Securities registrar and shall cause to be kept at the office of each Transfer
Agent a register in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Securities and
registration of transfers of Securities. The Issuer reserves the right to vary
or terminate the appointment of any Transfer Agent or to appoint additional or
other Transfer Agents or to approve any change in the office through which any
Transfer Agent acts, provided that there shall at all times be a Transfer Agent
in the Borough of Manhattan, The City of New York. The Issuer shall cause notice
of any resignation, termination or appointment of the Fiscal Agent or any Paying
Agent or Transfer Agent and of any change in the office through which any such
Agent shall act to be provided to holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, the transfer of a Security is registrable on the
aforementioned register upon surrender of such Security at any Transfer Agent
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer duly executed by, the registered holder thereof or
his attorney duly authorized in writing. Upon such surrender of this Security
for registration of transfer, the Issuer shall execute, and the Fiscal Agent
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, dated the date of authentication
thereof, of any authorized denominations and of a like aggregate principal
amount.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, at the option of the registered holder upon request confirmed
in writing, Securities may be exchanged for Securities of any authorized
denominations and aggregate principal amount upon surrender of the Securities to
be exchanged at the office of any Transfer Agent. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver, the Securities which the registered holder making the
exchange is entitled to receive. Any registration of transfer or exchange shall
be effected upon the Issuer being satisfied with the documents of title and
identity of the person making the request and subject to the restrictions set
forth in the immediately following paragraph and such reasonable regulations as
the Issuer may from time to time agree with the Fiscal Agent.
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35
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal
Agent may treat the person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected
by notice to the contrary.
4. (a) Notwithstanding anything to the contrary set forth herein or
in the Fiscal Agency Agreement, any payment of principal of, interest on or any
monies owing with respect to this Security, whether at the scheduled 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.
A-8
36
(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, 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
A-9
37
the provisions of Section 2 of the Fiscal Agency Agreement for the payment from
funds so paid by the Issuer of the principal of and any interest on this
Security. Any monies held in respect of this Security remaining unclaimed at the
end of two years after such principal and such interest shall have become
payable in accordance with the Payment Restrictions (whether at the Scheduled
Maturity Date or otherwise) and monies sufficient therefor shall have been duly
made available for payment shall, together with any interest made available for
payment thereon, be repaid to the Issuer upon written request and upon such
repayment all liability of the Fiscal Agent with respect thereto shall cease,
without, however, limiting in any way any obligation the Issuer may have to pay
the principal of and interest on this Security, subject to the Payment
Restrictions.
(b) In any case where the scheduled payment date or scheduled
maturity date of any Security shall be at any place of payment a day on which
banking institutions are not carrying out transactions in U.S. dollars or are
authorized or obligated by law or executive order to close, then payment of
principal or interest need not be made on such date at such place but may be
made on the next succeeding day at such place which is not a day on which
banking institutions in the applicable jurisdiction are generally authorized or
obligated by law or executive order to close (a "Business Day"), with the same
force and effect as if made on the scheduled 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
A-10
38
and statutory) and franchise; provided, however, that the Issuer shall not be
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer and that the Issuer has used its best efforts to not
disadvantage in any material respect the holders of the Securities, or that not
preserving such right or franchise is in the best interest of the policyholders
of the Issuer having considered the interests of the holders of the Securities.
(b) The Issuer will not be or become an open-end investment company,
unit investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), if such action would cause the Issuer to
be in violation of the Investment Company Act at any time prior to payment in
full of the Securities.
(c) The Issuer shall use its best efforts to obtain the approval of
the Superintendent in accordance with Section 1307 for the payment by the Issuer
of interest on and principal of the Securities on the scheduled 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 the
Fiscal Agent no later than 5 Business Days (as defined herein), and the Fiscal
Agent will notify each holder, 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 the
Fiscal Agent, and the Fiscal Agent will notify each holder, in the event that
the Issuer shall have failed
A-11
39
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 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
A-12
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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 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
A-13
41
shall (i) impair, as between the Issuer and Security holders, the obligation of
the Issuer which is, subject to the Payment Restrictions, absolute and
unconditional to pay principal of and interest on the Securities in accordance
with their terms; (ii) affect the relative rights of Security holders and
creditors of the Issuer, other than holders of Policy Claims, Indebtedness or
Other Creditor Claims; or (iii) prevent the Fiscal Agent or any Security holder
from exercising any available remedies upon a breach by the Issuer of its
obligations hereunder, subject to the rights of holders of Policy Claims,
Indebtedness or Other Creditor Claims to receive distributions otherwise payable
to Security holders.
(f) No right of any holder of Policy Claims, Indebtedness or Other
Creditor Claims to enforce the subordination of the indebtedness evidenced by
the Securities shall be impaired by any act or failure to act by the Issuer or
by its failure to comply with the terms of this Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof, authorizes and
directs the Fiscal Agent on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Paragraph and
appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i) all
existing or future indebtedness of the Issuer for borrowed money, (ii) all
existing or future indebtedness for borrowed money of other persons, the payment
of which is guaranteed by the Issuer, (iii) all existing or future obligations
of the Issuer under any agreement obligating the Issuer to cause another person
to maintain a minimum level of net worth, or otherwise to ensure the solvency of
such person and (iv) any expense or any claim or amount, to the extent that
payment of principal of and interest on the Securities is required by law to be
subordinated to the prior payment thereof. Any 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, including the Issuer's 6.30% Surplus Notes scheduled to mature on
November 1, 2003 and its 7.45% Surplus Notes scheduled to mature on November 1,
2023, shall not constitute Indebtedness and will rank pari passu with the
Securities.
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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 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
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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 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
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44
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 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
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45
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 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.
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15. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, subject to the Payment Restrictions, to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
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EXHIBIT B
FORM OF GLOBAL SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH
MAY BE HEREAFTER AMENDED FROM TIME TO TIME), "RULE 144A").
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF DEPOSITARY] TO METROPOLITAN LIFE INSURANCE COMPANY (THE
"ISSUER") OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY SECURITY ISSUED IN EXCHANGE FOR THIS SECURITY OR ANY PORTION HEREOF IS
REGISTERED IN THE NAME OF [INSERT NAME OF NOMINEE OF DEPOSITARY] OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF
DEPOSITARY] (AND ANY PAYMENT IS MADE TO [INSERT NAME OF NOMINEE OF DEPOSITARY]
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON OTHER THAN [INSERT NAME OF DEPOSITARY] OR A
NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [INSERT
NAME OF NOMINEE OF DEPOSITARY], HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL
AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL SECURITY MAY NOT BE
EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY
PERSON OTHER THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY AGREEMENT,
AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 6(C) OF THE FISCAL AGENCY AGREEMENT.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY OR SECURITY ISSUED IN
EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(G) OF THE FISCAL AGENCY
AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)] - - THE HOLDER
OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS SECURITY MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) BY THE INITIAL
INVESTOR (I) IN A
B-1
48
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 $250,000 IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, 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 $250,000 TO AN
INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR", AS DEFINED IN RULE
501(a) (1), (2), (3) or (7) OR, IF THE EQUITY OWNERS THEREOF ALL MEET ONE OR
MORE OF THE FOREGOING CRITERIA, RULE 501(a) (8), 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 THE ISSUER
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 INTEREST ON THIS SECURITY MAY ONLY BE MADE
OUT OF THE ISSUER'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 THE ISSUER WARRANTS THE MAKING OF SUCH PAYMENTS.
B-2
49
METROPOLITAN LIFE INSURANCE COMPANY
__% Surplus Note scheduled to mature on November 1, 20
CUSIP NO.:_______
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, 20__ 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, 20__ in respect of which beneficial interests, are held
through the Depositary in the form of a global Security, on November 1, 20__
(the "Scheduled Maturity Date"), and to pay interest thereon, subject to the
approval of the Superintendent pursuant to Section 1307, from November 1, 1995
or from the most recent Scheduled Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on May 1 and November 1
in each year, commencing May 1, 1996 (each a "Scheduled Interest Payment Date"),
at the rate of ___% per annum, until the principal hereof is paid or duly
provided for. This Security is not subject to redemption prior to the Scheduled
Maturity Date. The date upon which any state or federal agency obtains an order
or grants approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer 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 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 defined on the
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50
reverse hereof)), 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 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
B-4
51
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:
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-5
52
FORM OF REVERSE
1. This Security is one of a duly authorized issue of __% Surplus
Notes scheduled to mature on November 1, 20__ 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 __________,
1995 (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, 20__.
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.
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.
2. The Securities are issuable only in fully registered form without
coupons. Securities are issuable in minimum denominations of $250,000 and
integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The City
of New York, a Transfer Agent where Securities may be registered or surrendered
for registration
B-6
53
of transfer or exchange. The Issuer has initially appointed the corporate trust
office of the Fiscal Agent as its Transfer Agent in the Borough of Manhattan,
The City of New York. The Issuer shall cause each Transfer Agent to act as a
Securities registrar and shall cause to be kept at the office of each Transfer
Agent a register in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Securities and
registration of transfers of Securities. The Issuer reserves the right to vary
or terminate the appointment of any Transfer Agent or to appoint additional or
other Transfer Agents or to approve any change in the office through which any
Transfer Agent acts, provided that there shall at all times be a Transfer Agent
in the Borough of Manhattan, The City of New York. The Issuer shall cause notice
of any resignation, termination or appointment of the Fiscal Agent or any Paying
Agent or Transfer Agent and of any change in the office through which any such
Agent shall act to be provided to holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, the transfer of a Security is registrable on the
aforementioned register upon surrender of such Security at any Transfer Agent
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer duly executed by, the registered holder thereof or
his attorney duly authorized in writing. Upon such surrender of this Security
for registration of transfer, the Issuer shall execute, and the Fiscal Agent
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, dated the date of authentication
thereof, of any authorized denominations and of a like aggregate principal
amount.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, at the option of the registered holder upon request confirmed
in writing, Securities may be exchanged for Securities of any authorized
denominations and aggregate principal amount upon surrender of the Securities to
be exchanged at the office of any Transfer Agent. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver, the Securities which the registered holder making the
exchange is entitled to receive. Any registration of transfer or exchange shall
be effected upon the Issuer being satisfied with the documents of title and
identity of the person making the request and subject to the restrictions set
forth in the immediately following paragraph and such reasonable regulations as
the Issuer may from time to time agree with the Fiscal Agent.
B-7
54
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal
Agent may treat the person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected
by notice to the contrary.
4. (a) Notwithstanding anything to the contrary set forth herein or
in the Fiscal Agency Agreement, any payment of principal of, interest on or any
monies owing with respect to this Security, whether at the scheduled 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-8
55
(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, 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
B-9
56
the provisions of Section 2 of the Fiscal Agency Agreement for the payment from
funds so paid by the Issuer of the principal of and any interest on this
Security. Any monies held in respect of this Security remaining unclaimed at the
end of two years after such principal and such interest shall have become
payable in accordance with the Payment Restrictions (whether at the Scheduled
Maturity Date or otherwise) and monies sufficient therefor shall have been duly
made available for payment shall, together with any interest made available for
payment thereon, be repaid to the Issuer upon written request and upon such
repayment all liability of the Fiscal Agent with respect thereto shall cease,
without, however, limiting in any way any obligation the Issuer may have to pay
the principal of and interest on this Security, subject to the Payment
Restrictions.
(b) In any case where the scheduled payment date or scheduled
maturity date of any Security shall be at any place of payment a day on which
banking institutions are not carrying out transactions in U.S. dollars or are
authorized or obligated by law or executive order to close, then payment of
principal or interest need not be made on such date at such place but may be
made on the next succeeding day at such place which is not a day on which
banking institutions in the applicable jurisdiction are generally authorized or
obligated by law or executive order to close (a "Business Day"), with the same
force and effect as if made on the scheduled 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
B-10
57
and statutory) and franchise; provided, however, that the Issuer shall not be
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer and that the Issuer has used its best efforts to not
disadvantage in any material respect the holders of the Securities, or that not
preserving such right or franchise is in the best interest of the policyholders
of the Issuer having considered the interests of the holders of the Securities.
(b) The Issuer will not be or become an open-end investment company,
unit investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), if such action would cause the Issuer
to be in violation of the Investment Company Act at any time prior to payment in
full of the Securities.
(c) The Issuer shall use its best efforts to obtain the approval of
the Superintendent in accordance with Section 1307 for the payment by the Issuer
of interest on and principal of the Securities on the scheduled 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 the
Fiscal Agent no later than 5 Business Days (as defined herein), and the Fiscal
Agent will notify each holder, 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 the
Fiscal Agent, and the Fiscal Agent will notify each holder, in the event that
the Issuer shall have failed
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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 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
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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 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
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shall (i) impair, as between the Issuer and Security holders, the obligation of
the Issuer which is, subject to the Payment Restrictions, absolute and
unconditional to pay principal of and interest on the Securities in accordance
with their terms; (ii) affect the relative rights of Security holders and
creditors of the Issuer, other than holders of Policy Claims, Indebtedness or
Other Creditor Claims; or (iii) prevent the Fiscal Agent or any Security holder
from exercising any available remedies upon a breach by the Issuer of its
obligations hereunder, subject to the rights of holders of Policy Claims,
Indebtedness or Other Creditor Claims to receive distributions otherwise payable
to Security holders.
(f) No right of any holder of Policy Claims, Indebtedness or Other
Creditor Claims to enforce the subordination of the indebtedness evidenced by
the Securities shall be impaired by any act or failure to act by the Issuer or
by its failure to comply with the terms of this Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof, authorizes and
directs the Fiscal Agent on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Paragraph and
appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i) all
existing or future indebtedness of the Issuer for borrowed money, (ii) all
existing or future indebtedness for borrowed money of other persons, the payment
of which is guaranteed by the Issuer, (iii) all existing or future obligations
of the Issuer under any agreement obligating the Issuer to cause another person
to maintain a minimum level of net worth, or otherwise to ensure the solvency of
such person and (iv) any expense or any claim or amount, to the extent that
payment of principal of and interest on the Securities is required by law to be
subordinated to the prior payment thereof. Any 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, including the Issuer's 6.30% Surplus Notes scheduled to mature on
November 1, 2003 and its 7.45% Surplus Notes scheduled to mature on November 1,
2023, shall not constitute Indebtedness and will rank pari passu with the
Securities.
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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 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
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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 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
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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 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
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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 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.
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15. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, subject to the Payment Restrictions, to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER OF
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, 20__ (the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated as of
________, 1995 (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 1etter relates to $________________ principal amount of
Restricted Definitive Securities held in definitive form by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A, Rule 144 or Rule 903
or Rule 904 under the United States Securities Act of 1933, as amended (the
"Act"), and accordingly the Transferor does hereby further certify that:
I. if the transfer is being effected pursuant to and in accordance
with Rule 144A under the Act, that the Securities are being transferred
to a person that the Transferor reasonably believes is purchasing the
Securities for its own account, or for one or more accounts with respect
to which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A, in each case in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable
securities laws of any state of the United States or any other
jurisdiction; or
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II. if the transfer is being effected pursuant to Rule 144, the
Securities are being transferred in a transaction in accordance with Rule
144; or
III. if the transfer is being effected pursuant to Rule 903 or 904:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either:
(A) at the time the buy order was originated, the
transferee was outside the United States or the Transferor
and any person acting on its behalf reasonably believed that
the transferee was outside the United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Purchasers. Terms used in
this certificate and not otherwise defined in the Fiscal Agency Agreement have
the meanings set forth in Rule 144A, Rule 144 or Regulation S under the Act.
[Insert Name of Transferor]
By:______________________
Name:
Title:
Dated: ______________
cc: Metropolitan Life Insurance Company
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