1
Exhibit 10.48
================================================================================
FISCAL AGENCY AGREEMENT
between
GENERAL AMERICAN LIFE INSURANCE COMPANY
as Issuer
and
THE BANK OF NEW YORK
as Fiscal Agent
----------------------------
dated as of January 24, 1994
----------------------------
$107,000,000 7 5/8% Surplus Notes due 2024
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
1.1. Definitions ..................................... 1
1.2. Rules of Construction ........................... 5
ARTICLE II
THE NOTES
2.1. Form ............................................ 6
2.2 Form of Fiscal Agent's Certificate of
Authentication ................................. 7
2.3. Execution and Authentication .................... 7
2.4. Registrar, Paying Agent, Depository and
Custodian ................................... 8
2.5. Payment on Notes ................................ 9
2.6. Noteholder Lists ................................ 11
2.7. Replacement Notes ............................... 11
2.8. Outstanding Notes ............................... 12
2.9. Treasury Notes .................................. 12
2.10. Temporary Notes ................................. 13
2.11. Cancellation .................................... 13
2.12. Person Deemed Owner ............................. 13
ARTICLE III
PAYMENT RESTRICTIONS
3.1. Payment Restrictions ............................ 14
3.2. Unpaid Amounts .................................. 14
ARTICLE IV
TRANSFER AND EXCHANGE; TRANSFER RESTRICTIONS
4.1. Transfer and Exchange ........................... 15
4.2. ERISA Restrictions .............................. 20
ARTICLE V
COVENANTS
5.1 Payment of Interest and Principal ............... 21
5.2 Rule 144A Information ........................... 21
5.3 Other Information ............................... 21
i
3
Page
----
5.4. Corporate Existence ............................. 22
5.5. Compliance with Investment Company Act .......... 22
5.6. Maintenance of Debt Service
Account ........................................ 22
ARTICLE VI
DEMUTUALIZATION, MERGER, CONSOLIDATION OR SALE
BY THE COMPANY
6.1. Demutualization, Merger, Consolidation or
Sale of Assets ................................. 22
ARTICLE VII
REMEDIES
7.1. Remedies ........................................ 23
7.2. Restoration of Rights and Remedies .............. 24
7.3. Rights and Remedies Cumulative .................. 25
7.4. Delay or Omission Not Waiver .................... 25
ARTICLE VIII
SUBORDINATION
8.1. Subordination .................................. 25
8.2. Rehabilitation, Liquidation, Reorganization,
Conservation or Dissolution ................... 25
8.3. Distribution ................................... 26
8.4. Notice of Violation ............................ 26
8.5. Rights of Noteholders .......................... 27
ARTICLE IX
FISCAL AGENT
9.1. Duties of Fiscal Agent ......................... 27
9.2. Rights of Fiscal Agent ......................... 28
9.3. Individual Rights of Fiscal Agent .............. 29
9.4. Fiscal Agent's Disclaimer ...................... 29
9.5. Compensation and Indemnity ..................... 29
9.6. Replacement of Fiscal Agent .................... 30
9.7. Successor Fiscal Agent, Agents by Merger,
Etc ........................................... 31
9.8. Eligibility .................................... 31
9.9. Appointment of Authenticating Agent ............ 31
ii
4
Page
----
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
10.1. Without Consent of Holders .................... 34
10.2. With Consent of Holders ....................... 35
10.3. Revocation and Effect of Consents ............. 36
10.4. Notation on or Exchange of Notes .............. 37
10.5. Fiscal Agent to Sign Amendments, Etc .......... 37
ARTICLE XI
MEETINGS OF HOLDERS
11.1. Purposes for Which Meetings May Be Called ....... 37
11.2. Call, Notice and Place of Meetings .............. 37
11.3. Persons Entitled to Vote at Meetings ............ 38
11.4. Quorum .......................................... 38
11.5. Action by Written Consent ....................... 39
11.6. Determination of Voting Rights; Conduct and
Adjournment of Meetings ........................ 39
11.7. Counting Votes and Recording Action of
Meetings ....................................... 40
ARTICLE XII
MISCELLANEOUS
12.1. Notices ......................................... 41
12.2. Governing Law ................................... 41
12.3. No Recourse Against Others ...................... 42
12.4. Duplicate Originals ............................. 42
12.5. Headings and Table of Contents .................. 42
12.6. Successor and Assigns ........................... 42
12.7. Separability .................................... 42
12.8. Legal Holidays .................................. 42
EXHIBIT A - FORM OF NOTE CERTIFICATE
EXHIBIT B - FORM OF NOTE IN GLOBAL FORM
EXHIBIT C - CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF NOTES
iii
5
FISCAL AGENCY AGREEMENT, dated as of January 24, 1994,
between GENERAL AMERICAN LIFE INSURANCE COMPANY, a mutual life
insurance corporation organized under the laws of the State of Missouri
(the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as Fiscal Agent (together with any successor as Fiscal
Agent hereunder, the "Fiscal Agent").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the
Company's 7 5/8% Surplus Notes due 2024 (the "Notes"):
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
In this Agreement, unless the context otherwise requires;
"Agent" means any Registrar, Paying Agent, Co-Registrar or
Custodian;
"Agreement" means this Agreement, as amended or
supplemented from time to time;
"Beneficial Holder" means each participant in the
Depository that holds an interest in a Note, as indicated in the
Participants List;
"Board of Directors" or "Board" means the Board of
Directors of the Company or any duly authorized committee of the
Board;
"Business Day" means any day other than a Saturday, Sunday
or any other day on which banking institutions are authorized or
required by law or executive order to close in St. Louis, Missouri or
in New York, New York;
"Code" means the Internal Revenue Code of 1986, as amended
from time to time. Any reference to a particular section of the Code
shall include any successor Code section;
6
"Company Order" means any request, instruction, order or
directive signed by at least two Officers;
"Co-Registrar" has the meaning set forth in Section 2.4;
"Custodian" has the meaning set forth in Section 2.1;
"Debt Service Account" means the account established and
maintained during the term of the Notes equal to the amount of
interest expected to accrue annually on the Notes.
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the person specified in
Section 2.4(c) as the Depository with respect to the Notes, until a
successor shall have been appointed and becomes such pursuant to the
applicable provisions of this Agreement, and, thereafter,
"Depository" shall mean such successor;
"DTC" means The Depository Trust Company;
"Event of Default" means an event described in Section
7.1(a) or (b);
"Exchange Act" means the Securities Exchange Act of 1934,
as amended;
"Holder" or "Noteholder" means the person in whose name a
Note is registered on the Registrar's books;
"Indebtedness" means any of the following (i) all existing
or future indebtedness of the Company for borrowed money; (ii) all
existing or future indebtedness for borrowed money of other persons,
the payment of which as guaranteed by the Company; (iii) all existing
or future obligations of the Company under any agreement obligating
the Company to cause another person to maintain a minimum level of
net worth, or satisfy any financial ratio requirement or otherwise to
ensure the solvency of such person; or (iv) any expense or any claim
or amount, to the extent that payment of interest on and principal of
the Notes is required by law to be subordinated to the prior payment
thereof; provided that Indebtedness does not include (x) any surplus
or contribution
2
7
notes or similar obligations of the Company issued after the date of
issuance of the Notes or (y) any indebtedness of the Company which by
its express terms is subordinated in right of payment to, or ranks
pari passu with, the Notes;
"Initial Purchasers" means each of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and
Salomon Brothers Inc., each as initial purchaser under the Purchase
Agreement, dated January 14, 1994, with the Company;
"Institutional Accredited Investor" means an institutional
investor that is an "accredited investor" within the meaning of Rule
501(a) (1), (2), (3) or (7) under the Securities Act.
"Interest Payment Date" shall mean each January 15 and
July 15 commencing July 15, 1994;
"Maturity Date" means January 15, 2024;
"Missouri Department" means the Department of Insurance of
the State of Missouri or such successor governmental body or
authority from time to time;
"Missouri Director" means the Director of Insurance of the
State of Missouri, or such governmental officer, body or authority as
may after the date hereof succeed to such Director as the primary
regulator of the Company's financial condition under applicable law;
"Notes" means the 7 5/8% Surplus Notes due 2024 described
above issued, authenticated and delivered under this Agreement;
"Officer" means the Chairman, the President, any Vice
President, the Chief Financial Officer, Secretary or Treasurer of the
Company;
"Officers' Certificate" means a certificate signed by at
least two Officers;
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Fiscal Agent. The counsel
may be an employee of or counsel to the Company;
3
8
"Participants List" means the list furnished by the
Depository showing persons that have a beneficial interest in the
Notes evidenced by any Note in global form held by the Depository and
the amount of such interest;
"Paying Agent" has the meaning set forth in Section 2.4;
"Payment Restrictions" means the payment restrictions on
the Notes set forth in Article III herein;
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock
company, trust, estate, unincorporated organization or government or
any agency or political subdivision thereof;
"Policy Claims" means 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 Company on or prior to the date hereof or
hereafter created and all claims under separate account agreements to
the extent such claims are not fully discharged by the assets held by
the Company in the applicable separate accounts;
"Prior Claims" means all claims, other than Policy Claims
or Indebtedness, which, pursuant to Section 375.1218 of Mo. Rev.
Stat., have priority over claims with respect to the Notes;
"QIB" means a "qualified institutional buyer" as defined
in Rule 144A under the Securities Act;
"Record Date" means, for interest payable on any Scheduled
Interest Payment Date (i) where the relevant Interest Payment Date is
January 15, the preceding January 1 and (ii) where the relevant
Interest Payment Date is July 15, the preceding July 1;
"Registrar" has the meaning set forth in Section 2.4;
4
9
"Responsible Officer" means any officer or assistant
officer of the Fiscal Agent assigned by the Fiscal Agent to
administer the transactions contemplated hereby;
"Restricted Note" means any Note that bears or is required
to bear the legend set forth in Section 4.1 (b);
"Scheduled Maturity Date" means the first day on or
following the Maturity Date on which the Company has satisfied all
the Payment Restrictions;
"Scheduled Interest Payment Date" means the first day on
or following each Interest Payment Date on which the Company has
satisfied all the Payment Restrictions;
"Securities Act" means the Securities Act of 1933, as
amended;
"Special Surplus Account" means the account established
and maintained by the Company so long as any of the Notes are
outstanding to report all outstanding principal indebtedness on the
Notes;
"Stated Rate" means a rate of interest equal to 7 5/8% per
annum; and
"Unassigned Funds (Surplus)" means the total of lines 33
and 34 of the "Liability, Surplus and Other Funds" page of the
Company's annual and quarterly statements filed with the statements
filed with the state insurance regulatory authorities.
SECTION 1.2. Rules of Construction.
In this Agreement, unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement and the forms of Note
included as Exhibits hereby as a whole, and not to any particular
Article, Section or other subdivision;
5
10
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) any reference to a party includes its successors from time to
time.
ARTICLE II
THE NOTES
SECTION 2.1. Form. Notes sold by the Initial Purchasers to
Institutional Accredited Investors shall be issued in definitive,
fully-registered and certificated form (each a "Note Certificate" and
collectively the "Note Certificates") and shall be substantially in
the form of Exhibit A, which is part of this Agreement, and all of the
provisions of which shall be deemed to be included in this Agreement.
Each Note initially issued in the form of a Note Certificate shall be
registered in such names and denominations as designated by the
Initial Purchasers. The Notes may have notations, legends or
endorsements required by law, securities exchange rule or usage. Each
Note shall be dated the date of its authentication.
The Notes sold by the Initial Purchasers to QIBs in
reliance on Rule 144A under the Securities Act ("Rule 144A") shall be
represented initially by a global Note, substantially in the form of
Exhibit B, which is part of this Agreement, and all of the provisions
of which shall be deemed to be included in this Agreement. The global
Note shall be deposited with a Person (which may be the Fiscal Agent)
appointed by the Company to act as custodian for the Depository (the
"Custodian") and registered in the name of the Depository or a nominee
thereof.
The global Note shall represent such of the outstanding
Notes as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and
6
11
that the aggregate amount of outstanding Notes represented thereby may
from time to time be increased or reduced to reflect transfers or
exchanges. Any endorsement of a Note in global form to reflect the
amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Fiscal Agent or the
Custodian, at the direction of the Fiscal Agent, in such manner and
upon written instructions given by the Holder thereof. Payment of
interest on and principal of any global Note shall be made to the
Holder thereof.
The Notes and beneficial interests therein shall be
issuable in minimum denominations of (i) $250,000 and integral
multiples of $1,000 in excess thereof if initially sold to an
Institutional Accredited Investor and (ii) $1,000 and integral
multiples of $1,000 in excess thereof if initially sold to a QIB.
SECTION 2.2. Form of Fiscal Agent's Certificate of
Authentication. The Fiscal Agent's certificate of authentication
shall be in substantially the following form:
This is one of the Notes of a series issued under the
within-mentioned Fiscal Agency Agreement.
Dated: THE BANK OF NEW YORK,
as Fiscal Agent
By: ________________________________
Authorized Signatory
SECTION 2.3. Execution and Authentication. Any two
Officers shall sign the Notes on behalf of the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual signature
of the Fiscal Agent. The Fiscal Agent's signature shall be conclusive
evidence that the Note has been authenticated under this Agreement.
7
12
The Fiscal Agent shall authenticate Notes for original
issue in the aggregate principal amount of $107,000,000 upon a Company
Order. The aggregate principal amount of Notes outstanding at any time
may not exceed the sum of (i) $107,000,000 and (ii) the principal
amount of lost, destroyed or stolen Notes for which replacement Notes
are issued pursuant to Section 2.7.
Pursuant to Section 9.9 hereof, the Fiscal Agent may
appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes
whenever the Fiscal Agent may do so, other than upon original issuance
or pursuant to Section 2.7. Except as stated in the immediately
preceding sentence and in Section 9.9, each reference in this
Agreement to authentication by the Fiscal Agent includes
authentication by such agent.
SECTION 2.4. Registrar, Paying Agent, Depository and
Custodian. (a) The Company shall appoint itself or another Person to
maintain an office or agency where Notes may be presented for
registration of transfer or exchange (the Company or such other
Person being referred to, in such capacity, as the "Registrar"). As
set forth in Article IV hereof, the Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may
appoint one or more co-Registrars (each, a "Co-Registrar") and may
act as Co-Registrar. The Company initially appoints the Fiscal Agent
to act as Registrar.
(b) The Company shall appoint itself or another Person to
maintain an office or agency where Notes may be presented for payment
(the Company or such other Person being referred to, in such capacity,
as the "Paying Agent"). The term "Paying Agent" includes any
additional paying agent. The Company initially appoints the Fiscal
Agent to act as Paying Agent.
(c) The Company shall appoint one or more other Persons to
act as Depository with respect to any Notes issued in global form. The
Company initially appoints DTC to act as Depository with respect to
the Notes in global form. As set forth in Section 4.1(d) hereof, the
Company may, in certain circumstances, appoint a successor Depository,
and may at any time determine that the Notes issued in the form of
global Notes shall no longer be represented by such global Notes.
8
13
(d) The Company shall appoint itself or one or more other
Persons to act as Custodian with respect to any Notes issued in
global form. The Company initially appoints the Fiscal Agent to act
as Custodian with respect to the Notes in global form.
(e) The Company shall notify the Fiscal Agent of the name
and address of the Depository and of any Agent not a party to this
Agreement, and shall give the Fiscal Agent at least 30 days' written
notice prior to changing the Depository or any such Agent.
SECTION 2.5. Payment on Notes. (a) The Company, subject to
the Payment Restrictions, shall provide to the Paying Agent, in
immediately available funds on or prior to 12:00 noon, New York time,
on each Scheduled Interest Payment Date or the Scheduled Maturity
Date, such amount, in U.S. dollars, as is necessary to make such
payment as is due, and the Company hereby authorizes and directs the
Paying Agent from funds so provided to it to make or cause to be made
payment of the interest on and principal of the Notes in the manner,
at the times and for the purposes set forth herein and in the text of
the Notes; provided that (1) any approved payment of interest on the
Notes may be made by check mailed to the persons (the "registered
owners") in whose names such Notes are registered on the register
maintained pursuant to Section 4.1 hereof at the close of business on
the relevant Record Date and (2) the Company will not provide any
such funds to the Paying Agent prior to such time as the relevant
payment of interest or principal is approved by the Missouri
Director. Payments of interest on or principal of the Notes may be
made, in the case of a registered owner of at least $5,000,000
aggregate principal amount of Notes, by wire transfer to an account
maintained by the registered owner with a bank if such registered
owner so elects by giving written notice to the Paying Agent, not
less than 15 days (or such fewer days as the Paying 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 Notes shall
remain in effect with respect to any future payments with respect to
such Notes payable to such Holder. The Company shall pay any
reasonable
9
14
administrative costs in connection with making any such payments.
(b) The Company shall use its best efforts to obtain the
approval of the Missouri Director for the payment by the Company of
interest on and principal of the Notes on the Interest Payment Dates
and the Maturity Date, and, in the event any such approval has not
been obtained for any such payment at or prior to the relevant
Interest Payment Date or Maturity Date, as the case may be, continue
to use its best efforts to obtain such approval promptly thereafter.
Not less than 45 days prior to each Interest Payment Date and the
Maturity Date, the Company will seek the approval of the Missouri
Director to make each payment, in whole or in part, of interest on
and principal of the Notes, respectively. If the Missouri Director
approves a payment of interest on or principal of the Notes in an
amount that is less than the full amount of interest on or principal
of the Notes then scheduled to be paid in respect of the Notes,
payment of such partial amount shall be made pro rata among
Noteholders as their interests may appear. In addition, the Company
shall notify or cause to be notified in writing each Holder and the
Fiscal Agent no later than five Business Days prior to each Interest
Payment Date and the Maturity Date in the event that the Missouri
Director has not then approved the making of any such payment or
partial payment on such date, and thereafter will promptly notify in
writing each Holder and the Fiscal Agent in the event that the
Company shall have failed to make any such payment on any such date.
(c) Interest on each Note shall be paid on each Scheduled
Interest Payment Date to the Holder of such Note at the close of
business on the Record Date for the relevant Interest Payment Date.
Principal of the Notes shall be payable only against presentation and
surrender thereof at the principal office of the Paying Agent, or at
such other location of a Paying Agent as the Company shall have
otherwise instructed the Fiscal Agent in writing.
(d) Whenever a Scheduled Interest Payment Date or the
Scheduled Maturity Date is not a Business Day, then such payment need
not be made on such date but shall be made on the next succeeding
Business Day, and (provided such payment is made on such next
succeeding Business
10
15
Day) no interest shall accrue on the amount of such payment from and
after such date to such next succeeding Business Day. If such payment
is not so made in full on such Scheduled Interest Payment Date or the
Scheduled Maturity Date (or, pursuant to this Section 2.5(d), such
next succeeding Business Day), interest will continue to accrue, to
the extent permitted by law, on such unpaid interest or principal at
the Stated Rate.
(e) The Company shall require each Paying Agent other than
the Fiscal Agent to agree in writing that the Paying Agent will hold
in trust for the benefit of Noteholders or the Fiscal Agent all money
held by the Paying Agent for the payment of interest on or principal
of the Notes, and will notify the Fiscal Agent in writing of any
failure by the Company to make any such payment. Until any such
failure has been remedied, the Fiscal Agent may require a Paying Agent
to pay all money held by it to the Fiscal Agent. In the event the
Company wishes to terminate the Fiscal Agent's appointment as Paying
Agent, the Company shall provide ten days' prior written notice to the
Fiscal Agent that the Fiscal Agent's appointment to act as Paying
Agent is so terminated and the Fiscal Agent may conclusively rely on
such notice. The Company at any time may require a Paying Agent to pay
all money held by the Paying Agent to the Fiscal Agent. Upon doing so
the Paying Agent shall have no further liability for the money so
paid.
SECTION 2.6. Noteholder Lists. The Fiscal Agent shall
preserve in as current a form as is reasonably practicable a list of
the names and addresses of Noteholders. If the Fiscal Agent is not the
Registrar, the Company shall furnish to the Fiscal Agent not less than
five business days prior to each Interest Payment Date and at such
other times as the Fiscal Agent may request in writing a list in such
form and as of such date as the Fiscal Agent may reasonably require of
the names and addresses of Noteholders.
SECTION 2.7. Replacement Notes. If any Note shall be
mutilated, destroyed, lost or stolen, the Company shall, upon the
written request of the Holder of such Note, issue and execute, and the
Fiscal Agent shall authenticate and deliver, in replacement thereof, a
replacement Note payable to and registered in the name of such Holder
and in the same principal amount as the Note
11
16
so mutilated, destroyed, lost or stolen. If the Note being replaced
has become mutilated, the Holder shall surrender such Note to the
Fiscal Agent. If the Note has been destroyed, lost or stolen, the
Holder of such Note shall furnish to the Company and the Fiscal Agent
(i) satisfactory evidence of such Holder's ownership of such Note,
(ii) satisfactory evidence of the destruction, loss or theft of such
Note and (iii) such security or indemnity as may be required by the
Company and the Fiscal Agent to save harmless the Company and the
Fiscal Agent. Upon the issuance of a replacement Note pursuant to this
Section, the Holder requesting such replacement Note shall pay to the
Fiscal Agent a sum sufficient to cover any transfer tax or
governmental charge payable in connection with the issuance of such
replacement Note. Any Note issued pursuant to this Section shall be
registered with the Registrar.
Every replacement Note shall be an additional obligation of
the Company.
SECTION 2.8. Outstanding Notes. The Notes outstanding at
any time are all Notes authenticated by the Fiscal Agent (or an
authenticating agent appointed pursuant to Section 2.2) except for
those cancelled by the Fiscal Agent, those delivered to the Fiscal
Agent for cancellation, those reductions in the interests in a global
Note effected by the Fiscal Agent hereunder, and those described in
this Section as not outstanding.
A Note does not cease to be outstanding because the Company
holds the Note.
If a Note is replaced pursuant to Section 2.6, it ceases
to be outstanding unless the Fiscal Agent receives proof satisfactory
to it that the replaced Note is held by a bona fide purchaser.
SECTION 2.9. Treasury Notes. In determining whether the
Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company shall be
disregarded, except that for the purposes of determining whether the
Fiscal Agent shall be protected in relying on any such direction,
waiver or consent, only Notes which the Fiscal Agent knows are so
owned shall be so disregarded.
12
17
SECTION 2.10. Temporary Notes. Until Note Certificates are
ready for delivery, the Company may prepare and execute and the Fiscal
Agent shall authenticate temporary Notes. The temporary Notes shall be
substantially in the form of Note Certificates, with such variations
as the Company and the Fiscal Agent may consider appropriate. Every
temporary Note shall be executed by the Company and authenticated by
the Fiscal Agent, and registered by the Registrar, upon the
conditions, and with like effect, as a Note Certificate. Without
unreasonable delay, the Company shall prepare and execute and the
Fiscal Agent shall authenticate Note Certificates in exchange for
temporary Notes. Prior to such exchange, such temporary Notes shall
constitute Note Certificates for all purposes of this Agreement.
SECTION 2.11. Cancellation. The Company at any time may
deliver Notes to the Fiscal Agent for cancellation. The Registrar and
Paying Agent shall promptly forward to the Fiscal Agent any Notes
surrendered to them for registration of transfer, exchange or payment.
The Fiscal Agent shall cancel all Notes surrendered for registration
of transfer, exchange, payment or cancellation and, subject to the
Fiscal Agent's internal policies, may destroy cancelled Notes and
deliver a certificate of such destruction to the Company, unless the
Company directs the Fiscal Agent to deliver cancelled Notes to the
Company. The Company may not issue new Notes to replace Notes that it
has paid or delivered to the Fiscal Agent for cancellation.
SECTION 2.12. Person Deemed Owner. Prior to due presentment
for transfer, the Company, the Fiscal Agent, the authenticating agent,
if any, and any Agent may treat the Holder as the owner of such Note
for the purpose of receiving payment of interest on and principal of
such Note and for all other purposes whatsoever, and neither the
Company, the Fiscal Agent, the authenticating agent, nor any other
Agent shall be affected by notice to the contrary.
13
18
ARTICLE III
PAYMENT RESTRICTIONS
SECTION 3.1. Payment Restrictions. Except as set forth in
Section 8.2(3) of this Agreement, each payment of interest on or
principal of the Notes may be made only (i) with the approval of the
Missouri Director, which approval will be granted only when the
Missouri Director is satisfied that the financial condition of the
Company warrants such payment, (ii) with respect to the payment of
interest on the Notes, only out of Unassigned Funds (Surplus), and
(iii) with respect to the payment of principal on the Notes, only out
of Unassigned Funds (Surplus), the Special Surplus Account and the
Debt Service Account. Interest will continue to accrue on any such
unpaid principal through the actual date of payment at the Stated
Rate. Interest will not, however, accrue on interest with respect to
which the Scheduled Interest Payment Date has been delayed following
the Interest Payment Date.
SECTION 3.2. Unpaid Amounts. Subject to Section 2.5(d), any
payment of interest on or principal of any Note which is not
punctually paid or duly provided for on the relevant Scheduled
Interest Payment Date or Scheduled Maturity Date, as the case may be
(such payment being referred to as an "Unpaid Amount"), will forthwith
cease to be payable to the registered owner of such Note on the
relevant Record Date, and such Unpaid Amount, together with accrued
interest thereon (if any) to the extent provided in Section 2.5(d)
hereof, will instead be payable to the registered owner of such Note
on a subsequent special record date. The Company 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 Company shall mail
to each Holder of the Notes 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, upon receipt of immediately available
funds, the amount of interest or principal to be so paid to each
Holder of the Notes in the manner set forth in Section 2.5(a).
14
19
ARTICLE IV
TRANSFER AND EXCHANGE; TRANSFER RESTRICTIONS
SECTION 4.1. Transfer and Exchange. (a) When Note
Certificates are presented to the Registrar with a request to register
the transfer of such Note Certificates or to exchange such Note
Certificates for an equal principal amount of Note Certificates of
other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its requirements for
such transaction are met; provided, however, that the Note
Certificates surrendered for transfer or exchange (A) shall be duly
endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or his attorney, duly authorized in
writing and (B) in the case of Restricted Notes in certificated form
only, shall be accompanied by the following additional information and
documents, as applicable:
(i) if such Restricted Note is being exchanged, without
transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit C hereto); or
(ii) if such Restricted Note is being transferred to a
QIB in accordance with Rule 144A or pursuant to an exemption
from registration in accordance with Rule 144(k) or Regulation S
under the Securities Act, a certification from the transferor to
that effect (in substantially the form of Exhibit C hereto).
To permit registrations of transfers and exchanges, the
Company shall execute and the Fiscal Agent (or an authenticating agent
appointed pursuant to Section 9.9) shall authenticate and deliver Note
Certificates at the Registrar's request, and upon written direction of
the Company. No service charge shall be made for any registration of
transfer or exchange, but the Company 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.
15
20
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Agreement, as the Notes surrendered upon such registration of transfer
or exchange.
(b) Except as permitted by this Section 4.1(b), each
certificate evidencing the Notes in global form and each of the Note
Certificates (and all securities issued in exchange therefore or
substitution thereof) shall bear a legend in substantially the
following form:
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
GENERAL AMERICAN LIFE INSURANCE COMPANY THAT (A) THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) BY THE INITIAL INVESTOR (I) 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 ACCORDANCE WITH
RULE 903 OR 904 OF REGULATION S (OR ANY SUCCESSOR PROVISION
THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME)
UNDER THE SECURITIES 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 SECURITIES 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
ACCREDITED INVESTOR, AS DEFINED IN RULE 501(a) (1), (2), (3) OR
(7) UNDER THE SECURITIES ACT, IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES 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.
Upon any request for sale or other transfer of a
Restricted Note (including any Restricted Notes represented by a Note
in global form) made subsequent to the later of the date which is
three years after the date of original issuance of the Notes and the
last date on which the Company or an affiliate of the Company within
the
16
21
meaning of Rule 144 under the Securities Act was the Holder of such
Restricted Note and with respect to which a certification
substantially in the form of Exhibit C hereto is furnished by the
transferor, (i) in the case of any Restricted Note in certificated
form, the Registrar shall permit the Holder thereof to exchange such
Restricted Note for Note Certificates that do not bear the legend set
forth above and such request shall be effective to rescind any
restriction on the further transfer of such Note, and (ii) any such
Restricted Notes represented by a Note in global form shall not be
subject to any restriction on transfer set forth above; and in each
such case, such Notes (whether in certificated or global form) shall
no longer constitute "Restricted Notes" for purposes of this
Agreement. The Registrar and the Company shall be entitled (but not
obligated) to require such additional certificates and information as
it may reasonably deem necessary to demonstrate that any sale or other
transfer of a Restricted Note is made in compliance with the
applicable restrictions set forth above.
(c) Notwithstanding any other provisions of this
Agreement or the Notes, a global Note shall not be exchanged in whole
or in part for a Note registered in the name of any person other than
the Depository or a nominee thereof, provided that a global Note may
be exchanged for Notes registered in the names of any person
designated by the Depository in the event that (i) the Depository has
notified the Company that it is unwilling or unable to continue as
Depository for such global Note and the Company has not appointed a
successor Depository within 60 days of receiving such notice, or such
Depository has ceased to be a "clearing agency" registered under the
Exchange Act, (ii) an Event of Default has occurred and is continuing,
(iii) a request is made in accordance with Section 4.1(f), or (iv) the
Company, at its sole discretion, determines that the Notes issued in
the form of a global Note shall no longer be represented by such
global Note. Any global Note exchanged pursuant to clause (i) or (iv)
above shall be so exchanged in whole and not in part and any global
Note exchanged pursuant to clause (ii) or (iii) above may be exchanged
in whole or from time to time in part as directed by the Depository.
Any Note issued in exchange for a global Note or any portion thereof
shall be a global Note, provided that any such Note so issued that is
registered
17
22
in the name of a person other than the Depository or a nominee thereof
shall not be a global Note.
(d) If at any time the Depository for the Notes notifies
the Company that it is unwilling or unable to continue as Depository
for the Notes, the Company may within 60 days of receiving such notice
appoint a successor Depository with respect to the Notes.
(e) If in accordance with Section 4.1(c) Notes in global
form will no longer be represented by a global Note, the Company will
execute, and the Fiscal Agent, upon receipt of a Company Order for the
authentication and delivery of Note Certificates, will authenticate
and deliver, Note Certificates in an aggregate principal amount equal
to the principal amount of the Notes in global form, in exchange for
such Notes in global form.
If a Note Certificate is issued in exchange for any
portion of a global Note after the close of business at the office or
agency where such exchange occurs on any Record Date and before the
opening of business at such office or agency on the next succeeding
Scheduled Interest Payment Date, interest will not be payable on such
Scheduled Interest Payment Date in respect of such Note Certificate,
but will be payable on such Scheduled Interest Payment Date only to
the person to whom interest in respect of such portion of such global
Note is payable in accordance with the provisions of this Agreement.
Note Certificates issued in exchange for a Note in global
form pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Fiscal Agent. Upon execution and authentication,
the Fiscal Agent shall deliver such Note Certificates to the Persons
in whose names such Notes are so registered.
(f) Any Person having a beneficial interest in Notes in
global form may upon request exchange its interest in the Notes in
global form for a Note Certificate at any time by giving at least 60
days' prior written notice to the Fiscal Agent in accordance with the
Depository's customary procedures. Upon receipt by the Registrar and
the Fiscal Agent of (i) written or electronic instruc-
18
23
tions from the Depository or its nominee on behalf of any Person
having a beneficial interest in Notes in global form, identifying
such Person as a Beneficial Holder and specifying the amount of such
Person's interest, (ii) a written order of such Person requesting
issuance of a Note Certificate and containing registration
instructions, and (iii) in the case of Restricted Notes only, a
certification from such Person in substantially the form of Exhibit C
hereto, the Fiscal Agent or the Custodian, at the direction of the
Fiscal Agent, will cause, in accordance with the standing
instructions and procedures existing between the Depository and the
Custodian, the aggregate principal amount of the Notes in global form
to be reduced and, following such reduction, the Company will execute
and, upon receipt of a Company Order for the authentication and
delivery of a Note Certificate, the Fiscal Agent will authenticate
and deliver to such Person, as the case may be, a Note Certificate.
A Note Certificate may be exchanged by the Holder at any
time for a beneficial interest in Notes in global form or transferred
by the Holder at any time in accordance with Rule 144A to a QIB
wishing to hold the Notes in global form upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar and the
Fiscal Agent of a Note Certificate, duly endorsed or accompanied by
appropriate instruments of exchange or transfer, as the case may be,
in form satisfactory to the Registrar, together with (a)
certification from the Holder, substantially in the form of Exhibit C
hereto, that such Note Certificate is either being exchanged for a
beneficial interest in Notes in global form or being transferred to a
QIB in accordance with Rule 144A and (b) written instructions from
the Holder surrendering such Note Certificate for a beneficial
interest in Notes in global form or transferring Notes to a QIB in
accordance with Rule 144A, directing the Fiscal Agent to make, or to
direct the Custodian to make an endorsement on the Note in global
form to reflect an increase in the aggregate principal amount of the
Notes represented by the Note in global form, the Fiscal Agent shall
cancel such Note Certificate and cause, or direct the Custodian to
cause, in accordance with the standing instructions and procedures
existing between the Depository and the Custodian, the aggregate
principal amount of Notes in global form to be increased accordingly.
19
24
(g) At such time as all interests in a Note in global
form have either been exchanged for Note Certificates or cancelled,
such Note in global form shall be cancelled by the Fiscal Agent in
accordance with the standing procedures and instructions existing
between the Depository and the Custodian. At any time prior to such
cancellation, if any interest in a global Note is exchanged for Note
Certificates or cancelled, the principal amount of Notes represented
by such Note in global form shall, in accordance with the standing
procedures and instructions existing between the Depository and the
Custodian, be reduced and an endorsement shall be made on such Note in
global form, by the Fiscal Agent or the Custodian, at the direction of
the Fiscal Agent, to reflect such reduction.
(h) Notwithstanding anything in this Agreement to the
contrary, (i) all transfers and exchanges of the Notes may be made
only in accordance with the procedures set forth in this Agreement
(including the restrictions on transfer), (ii) all Notes, whether
issued in certificated or global form, shall be registered as to
interest and principal with the Registrar, (iii) the transfer of a
Note may be effected only by the surrender of the old Note and either
the reissuance by the Company of the old Note to the new Holder or the
issuance by the Company of a new Note to the new Holder, and (iv) the
transfer and exchange of a beneficial interest in a Note issued in
global form may only be effected through the Depository in accordance
with the procedures promulgated by the Depository.
SECTION 4.2. ERISA Restrictions. 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 Code, as to which the Company is a party
in interest or a disqualified person (each a "Plan"), and no Person
acting on behalf of a Plan, may acquire any Note or interest therein,
unless such acquisition 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 a Note constitutes a representation by such Person to the Company
and the Fiscal Agent that such Person either (i) is not a Plan or (ii)
is a
20
25
Plan, and may acquire such Note under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code.
The restrictions on purchases of the Notes set forth in this Section
are in addition to those set forth in Section 4.1 hereof and under
applicable law.
ARTICLE V
COVENANTS
SECTION 5.1. Payment of Interest and Principal. The Company will
duly and punctually pay or cause to be paid the interest on and
principal of the Notes in accordance with, and subject to, the terms
of the Notes and this Agreement.
SECTION 5.2. Rule 144A Information. So long as the Company is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request
of a Holder or Beneficial Holder, the Company shall promptly furnish
or cause the Fiscal Agent to furnish (if such information has been
provided to the Fiscal Agent) to such Holder, or to a prospective
purchaser of such Note or interest designated by such Holder, as the
case may be, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act ("Rule 144A Information") to
permit compliance with Rule 144A in connection with resales of the
Notes; provided, however, that the Company shall not be required to
furnish Rule 144A Information in connection with any request made on
or after the date which is three years from the later of (x) the date
of original issuance of such Note (or any predecessor Note) or (y) the
date such Note (or any predecessor Note) was last held by the Company
or an affiliate of the Company within the meaning of Rule 144 under
the Securities Act. So long as the Company is required to furnish Rule
144A Information as set forth herein, the Company shall notify the
Fiscal Agent in writing if at any time it becomes subject to Section
13 or l5(d) of the Exchange Act.
SECTION 5.3. Other Information. The Company shall deliver (or
shall cause the Fiscal Agent to deliver) to each Holder, upon written
request, promptly after such items are available, one copy of [(i)
each annual
21
26
report to policyholders of the Company,] (ii) each Annual Statement,
as filed by the Company with the Missouri Department, in the form
generally made available by the Company to the public and (iii)
Quarterly Statutory-Basis Financial Statements of the Company, as
filed by the Company with the Missouri Department.
SECTION 5.4. Corporate Existence. Subject to Article VI,
the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchise; provided, however, that
the Company 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 Company or that not preserving such right or
franchise is in the best interests of the policyholders of the
Company and, in each case, that any such action is effected only in a
manner which does not adversely affect the interests of any
Noteholder in any material respect.
SECTION 5.5. Compliance with Investment Company Act. So
long as any of the Notes are outstanding, the Company will not take
any action that would cause the Company to cease to be an "insurance
company" as defined in the Investment Company Act of 1940, as
amended.
SECTION 5.6. Maintenance of Debt Service Account. So long
as any of the Notes are outstanding, the Company will maintain the
Debt Service Account.
ARTICLE VI
DEMUTUALIZATION, MERGER, CONSOLIDATION OR SALE
BY THE COMPANY
SECTION 6.1. Demutualization, Merger, Consolidation or
Sale of Assets. (a) The Company shall not 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 Person or sell, convey, transfer or otherwise dispose
of all or substantially all of its assets to any Person, unless (i)
(A) in the case of a merger or consolidation, the Company is the
surviving corporation or (B)
22
27
in the case of a merger or consolidation where the Company is not the
surviving corporation and in the case of any such sale, conveyance,
transfer or other disposition, the successor 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 Company under the Notes
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 Company shall not have failed to
make payment of interest on or principal of the Notes after having
received the Missouri Director's prior approval to make such payment;
and (iii) the Company shall have delivered to the Fiscal Agent an
Officers' Certificate stating that such demutualization, merger,
consolidation, sale, conveyance, transfer or other disposition
complies with this Section 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 Company as provided in clause (i) (B) of the
immediately preceding sentence, such successor corporation shall
succeed to and be substituted for the Company hereunder and under the
Notes and all such obligations of the Company shall terminate.
(b) Upon any demutualization, merger, consolidation or any
transfer of all or substantially all of the assets, of the Company in
accordance with this Section, the successor corporation formed by
such consolidation or demutualization or into which the Company is
merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Agreement and under the Notes with the same effect
as if such successor corporation had been named as the Company
herein.
ARTICLE VII
REMEDIES
SECTION 7.1. Remedies. Holders of the Notes may enforce
the Fiscal Agency Agreement or the Notes only in the manner set forth
below (an event described in
23
28
either Section 7.1(a) or 7.1(b) is referred to herein as an "Event
of Default").
(a) In the event that any state or federal agency shall
obtain an order or grant approval for the rehabilitation, liquidation,
reorganization, conservation or dissolution of the Company, the Notes
will, upon the obtaining of such an order or the granting of such
approval, immediately become payable in full without any action on the
part of the Fiscal Agent or any Holder, 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 Fiscal Agency Agreement or the Notes, in no
event shall the Fiscal Agent or any Holder of the Notes be entitled to
declare the Notes to be immediately mature or otherwise be immediately
payable.
(b) In the event that the Missouri Director approves in
whole or in part a payment of any interest on or principal of any
Notes and the Company 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.
(c) In the event that the Company fails to perform any of
its other obligations hereunder or under the Notes, each holder of the
Notes may pursue any available remedy to enforce the performance of
any provision of the Fiscal Agency Agreement or such Notes, provided,
however, that such remedy shall in no event include the right to
declare the Notes immediately payable. A delay or omission by any
Noteholder in exercising any right or remedy accruing as a result of
the Company's failure to perform its obligations hereunder or under
the Notes and the continuation thereof shall not impair such right or
remedy or constitute a waiver of or acquiescence in such
non-performance by the Company. To the extent permitted by law, no
remedy is exclusive of any other remedy and all remedies are
cumulative.
SECTION 7.2. Restoration of Rights and Remedies. If any
Holder has instituted any proceeding to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or
abandoned for any
24
29
reason, or has been determined adversely to such Holder, then and in
every such case the Company and the Holders shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
rights and remedies of the Holders shall continue as though no such
proceeding had been instituted.
SECTION 7.3. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 7.4. Delay or Omission Not Waiver. No delay or
omission of any Holder to exercise any right or remedy accruing
pursuant to this Article shall impair any such right or remedy or
constitute a waiver thereof or an acquiescence therein. Every right
and remedy given by this Article or by law to the Holders may be
exercised from time to time, and as often as may be deemed expedient,
by the Holders.
ARTICLE VIII
SUBORDINATION
SECTION 8.1. Subordination. The Company agrees, and each
Noteholder by accepting a Note agrees, that the indebtedness evidenced
by the Notes is subordinated in right of payment, to the extent and in
the manner provided in this Article, to the prior payment in full of
all Policy Claims, Indebtedness and Prior Claims.
SECTION 8.2. Rehabilitation, Liquidation, Reorganization,
Conservation or Dissolution. Upon any distribution to creditors of
the Company in a rehabilitation, liquidation, reorganization,
conservation or dissolution relating to the Company or its property:
25
30
(1) holders of Policy Claims, Indebtedness and Prior
Claims shall be entitled to receive payment in full, in cash or
in a manner satisfactory to the holders of such Policy Claims,
Indebtedness and Prior Claims, of all Policy Claims,
Indebtedness and Prior Claims before Noteholders shall be
entitled to receive any payments of interest on or principal of
the Notes;
(2) until the Policy Claims, Indebtedness and Prior Claims
have been paid in full in cash or in a manner satisfactory to
the holders of such Policy Claims, Indebtedness and Prior
Claims, any distribution to which Noteholders would be entitled
but for this Article shall be made to holders of Policy Claims,
holders of Indebtedness and holders of Prior Claims as their
interests may appear, except that Noteholders may receive
securities that are subordinated to Policy Claims, Indebtedness
and Prior Claims to at least the same extent as the Notes; and
(3) after payment in full of all Policy Claims,
Indebtedness and Prior Claims, and prior to any payment to any
Person in respect of such Person's ownership interest in the
Company, the Noteholders shall be entitled to receive,
notwithstanding clause (ii) of Section 3.1, payment in full of
all amounts due under this Agreement and the Notes.
A distribution may consist of cash, securities or other
property.
SECTION 8.3. Distribution. If a distribution is made to
Noteholders that, because of this Article, should not have been made
to them, the Noteholders who receive the distribution shall hold it in
trust for holders of Policy Claims, Indebtedness and Prior Claims and
pay it over to them as their interests may appear.
SECTION 8.4. Notice of Violation. The Company shall
promptly notify the Fiscal Agent and the Paying Agent of any facts
known to the Company that would cause a payment of interest on or
principal of the Notes to violate this Article.
26
31
SECTION 8.5. Rights of Noteholders. (a) Nothing in this
Article shall (i) impair, as between the Company and Noteholders, the
obligation of the Company which is, subject to the Payment
Restrictions, absolute and unconditional to pay interest on and
principal of the Notes in accordance with their terms; (ii) affect the
relative rights of Noteholders and creditors of the Company other than
holders of Policy Claims, Indebtedness or Prior Claims; or (iii)
prevent the Fiscal Agent or any Noteholder from exercising any
available remedies upon a breach by the Company of its obligations
hereunder, subject to the rights of holders of Policy Claims,
Indebtedness or Prior Claims to receive distributions otherwise
payable to Noteholders.
(b) Each Noteholder, 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 Article and appoints the Fiscal Agent its attorney-in-fact for
any and all such purposes.
ARTICLE IX
FISCAL AGENT
SECTION 9.1. Duties of Fiscal Agent. (a) The Fiscal Agent
acts under this Agreement solely as agent of the Company and does not
assume any obligation or relationship of agency or trust for or with
the Holders of the Notes, except that all funds held by the Fiscal
Agent for the payment of interest on or principal of, and any other
amounts with respect to, the Notes shall be held in trust but need not
be segregated from other funds, except as required by law, and shall
be applied as set forth herein and in the Notes. The Fiscal Agent need
perform only those duties that are specifically set forth in this
Agreement and no others.
(b) In the absence of gross negligence or bad faith on its
part, the Fiscal Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Fiscal Agent and conforming
to the requirements of this Agreement. However, the Fiscal Agent shall
examine the certificates and opinions
27
32
to determine whether or not they conform to the requirements of this
Agreement, but need not verify the accuracy of the contents thereof.
(c) The Fiscal Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proven that the Fiscal Agent was grossly negligent in ascertaining the
pertinent facts.
(d) Except as provided in Section 9.8 and Article X of
this Agreement, no provision of this Agreement shall require the
Fiscal Agent to expend, risk or maintain its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 9.2. Rights of Fiscal Agent. (a) In the absence of
gross negligence or bad faith, the Fiscal Agent may rely and shall be
protected in acting or refraining from acting upon any document
reasonably believed by it to be genuine and to have been signed or
presented by the proper person. The Fiscal Agent need not investigate
any fact or matter stated in the document.
(b) Before the Fiscal Agent acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel. The
Fiscal Agent shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(c) The Fiscal Agent shall not be liable for any action it
takes or omits to take in good faith without gross negligence which
(i) is taken pursuant to any Company Order addressed and delivered to
the Fiscal Agent or (ii) the Fiscal Agent otherwise believes to be
authorized or within its rights or powers.
(d) The Fiscal Agent may consult with counsel of its
choice, which may be counsel to the Company, and the advice of such
counsel as to matters of law shall be full and complete authorization
and protection in respect of any action taken, omitted or suffered by
it hereunder
28
33
in good faith without gross negligence and in accordance with the
advice or opinion of such counsel.
(e) The Fiscal Agent shall not be bound and shall have no
duty to ascertain or inquire as to the performance or observance of
any covenants, conditions or agreements on the part of the Company
under this Agreement.
(f) The Fiscal Agent shall not be required to give any
bond or surety in respect of the execution of its powers or in respect
of this Agreement.
SECTION 9.3. Individual Rights of Fiscal Agent. The Fiscal
Agent in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company with the same
rights the Fiscal Agent would have if it were not Fiscal Agent. Any
Agent may do the same with like rights.
SECTION 9.4. Fiscal Agent's Disclaimer. The Fiscal Agent
makes no representation as to the validity or adequacy of this
Agreement or the Notes, shall not be accountable for the Company's use
of the proceeds from the sale of the Notes or the use or application
of any money received by any Paying Agent other than the Fiscal Agent,
and shall not be responsible for any statement in the Notes other than
the Fiscal Agent's certificate of authentication.
SECTION 9.5. Compensation and Indemnity. The Company shall
from time to time pay to the Fiscal Agent compensation for its
services as agreed in writing by the Company from time to time. The
Fiscal Agent's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Fiscal Agent, within 45 days after receiving written
request therefor, for all reasonable out-of-pocket disbursement fees
and expenses incurred by the Fiscal Agent in connection with the
performance of its duties under this Agreement, including, without
limitation, those incurred in connection with the enforcement of any
remedy hereunder or the interpretation of any provision hereunder.
Such expenses may include the reasonable compensation and
out-of-pocket expenses of the Fiscal Agent's agents and counsel.
29
34
The Company shall indemnify the Fiscal Agent for, and hold
it harmless against, any loss or liability incurred by it in
connection with its acting as Fiscal Agent under this Agreement. The
Fiscal Agent shall promptly notify the Company of any claim for which
the Fiscal Agent may seek indemnity, including costs and expenses of
defending itself against any claim for liability arising from the
exercise or performance of any of its powers or duties hereunder. The
Company need not pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify
against any lose or liability incurred by the Fiscal Agent through its
gross negligence or bad faith.
The Fiscal Agent shall have a lien or right of set-off on
all funds hereunder for reasonable fees and expenses (including fees
and expenses of its agents and counsel) incurred as a result of
performance of its duties hereunder.
The obligations of the Company under this Section shall
survive payment of all the Notes or the resignation or removal of the
Fiscal Agent, as the case may be.
SECTION 9.6. Replacement of Fiscal Agent. A resignation or
removal of the Fiscal Agent and appointment of a successor Fiscal
Agent shall become effective only upon the successor Fiscal Agent's
acceptance of appointment as provided in this Section.
The Fiscal Agent may resign at any time by giving 60 days'
prior written notice thereof to the Company. Either the Company or the
Holders of a majority in principal amount of the Notes may remove the
Fiscal Agent at any time by giving written notice thereof to the Fiscal
Agent and, in the case where removal is at the election of the Holders
of a majority in principal amount of the Notes, to the Company.
If the Fiscal Agent resigns or is removed or if a vacancy
exists in the office of Fiscal Agent for any reason, the Company shall
promptly appoint a successor Fiscal Agent. Within one year after the
successor Fiscal Agent takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Fiscal
30
35
Agent to replace the successor Fiscal Agent appointed by the Company.
If a successor Fiscal Agent does not take office within 60
days after the retiring Fiscal Agent resigns or is removed, the
retiring Fiscal Agent, the Company or the Holders of at least 10% in
principal amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Fiscal Agent.
If the Fiscal Agent fails to comply with Section 9.8, any
Noteholder or Beneficial Holder may petition any court of competent
jurisdiction for the removal of the Fiscal Agent and the appointment
of a successor Fiscal Agent.
A successor Fiscal Agent shall deliver a written
acceptance of its appointment to the retiring Fiscal Agent and to the
Company. Thereupon the retiring Fiscal Agent shall transfer all
property held by it as Fiscal Agent to the successor Fiscal Agent, the
resignation or removal of the retiring Fiscal Agent shall become
effective, and the successor Fiscal Agent shall have all the rights,
powers and duties of the Fiscal Agent under this Agreement. The
successor Fiscal Agent shall mail a notice of its succession to
Noteholders.
SECTION 9.7. Successor Fiscal Agent, Agents by Merger,
Etc. If the Fiscal Agent or any Agent consolidates with, merges or
converts into, or transfers all or substantially all of its fiscal
agency business to, another corporation, the successor corporation
without any further act shall be the successor Fiscal Agent or Agent,
as the case, may be.
SECTION 9.8. Eligibility. The Fiscal Agent shall have a
combined capital and surplus of at least $100 million as set forth in
its most recent annual report to its shareholders.
SECTION 9.9. Appointment of Authenticating Agent. The
Fiscal Agent may appoint an authenticating agent or agents with
respect to the Notes (each an "Authenticating Agent") which shall be
authorized to act on behalf of the Fiscal Agent to authenticate the
Notes whenever the Fiscal Agent may do so, other than upon
31
36
original issuance or pursuant to Section 2.7, and Notes so
authenticated shall be entitled to the benefits of this Agreement and
shall be valid and obligatory for all purposes as if authenticated by
the Fiscal Agent hereunder. Any such appointment shall be evidenced by
an instrument in writing signed by a Responsible Officer of the Fiscal
Agent, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Agreement to the
authentication of the Notes by the Fiscal Agent or the Fiscal Agent's
certificate of authentication, such reference shall be deemed to
include authentication, and delivery on behalf of the Fiscal Agent by
an Authenticating Agent and a certificate of authentication executed
on behalf of the Fiscal Agent by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at
all times be a bank or trust company or corporation organized and
doing business in good standing under the laws of the United States of
America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital
and surplus of not less than $1,500,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to
law or the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or further act
on the part of the Fiscal Agent or the Authenticating Agent.
32
37
An Authenticating Agent for the Notes may at any time
resign by giving written notice of resignation to the Fiscal Agent.
The Fiscal Agent may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Fiscal Agent may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Noteholders. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent herein. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of the
Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation including reimbursement of
its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is
made pursuant to this Section, the Notes of such series may have
endorsed thereon, in addition to or in lieu of the Fiscal Agent's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Notes of a series issued under the
within-mentioned Fiscal Agency Agreement.
Dated: ___________ THE BANK OF NEW YORK,
as Fiscal Agent
By: _________________________
as Authenticating Agent
By: ___________________________
Authorized Signatory
Sections 9.2, 9.4 and 9.5 shall be applicable to any Authenticating
Agent.
33
38
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1. Without Consent of Holders. The
Company and the Fiscal Agent may amend or supplement this
Agreement or the Notes without the consent of any
Noteholder for the purpose of:
(1) adding to the covenants of the Company for the
benefit of the Noteholders; or
(2) surrendering any right or power conferred on the
Company: or
(3) securing the Notes; or
(4) evidencing the succession of another corporation to
the Company and the assumption by any such successor of the
covenants and obligations of the Company herein and in the
Notes, as permitted by this Agreement and the Notes; or
(5) modifying the restrictions on, and procedures for,
resale and other transfers of the Notes to the extent required
by any change in applicable law or regulation, or the
interpretation thereof, or in the practices relating to the
resale or transfer of restricted securities generally; or
(6) accommodating the issuance, if any, of Note
Certificates or Notes in book-entry form and matters related
thereto which do not adversely affect the interests of any
Noteholder in any material respect; or
(7) curing any ambiguity or correcting or supplementing
any defective provision herein or in the Notes in a manner which
does not adversely affect the interests of any Noteholder in any
material respect; or
(8) effecting any amendment which the Company and the
Fiscal Agent may determine is necessary or desirable and which
shall not adversely affect the interests of any Noteholder.
34
39
SECTION 10.2. With Consent of Holders. The Company and the
Fiscal Agent may amend or supplement this Agreement or the Notes (i)
with the written consent of the Noteholders of at least a majority in
aggregate principal amount of the Notes or (ii) upon the adoption of a
resolution, at a meeting of Holders held pursuant to Article XI at
which a quorum is present, by the Holders of not less than a majority
in principal amount of the Notes. In addition, the Holders of a
majority in aggregate principal amount of the Notes may waive
compliance by the Company with any provision of this Agreement or the
Notes, either by written consent or by affirmative vote at a meeting
of Holders as described above. Without the written consent or
affirmative vote of each Noteholder affected, no amendment, supplement
or waiver under this Section may:
(1) change the dates for payment of interest on, or the
stated maturity date of the principal of, any Note;
(2) reduce the interest rate on, or the principal
amount of, any Note;
(3) change the place or currency of payment of interest
on or principal of any Note;
(4) change the Company's obligations under Section 5.2
hereof;
(5) impair any right to institute suit for the
enforcement of any payment, if such payment has been approved by
the Missouri Director, on or with respect to any Note;
(6) modify the subordination provisions in a manner
adverse to the Noteholders;
(7) reduce the percentage in principal amount of Notes,
the consent of whose Holders is required for modification or
amendment of this Agreement or the Notes or to 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 thereby to be made,
taken or given;
35
40
(8) reduce the percentage of aggregate principal amount
of outstanding Notes that constitutes the quorum at any meeting
of Noteholders at which a resolution is adopted; or
(9) change the Payment Restrictions in a manner adverse
to any Noteholder.
In addition, without the prior approval of the Missouri
Director, no amendment, supplement or waiver under this Section may
change the Payment Restrictions in any manner.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof. The Company may establish, by
delivery of an Officers' Certificate to the Fiscal Agent, a record
date for determining Noteholders of record entitled to give any
consent or waiver.
After an amendment or supplement under this Section
becomes effective, the Fiscal Agent shall mail to Noteholders a notice
briefly describing the amendment or supplement. Any failure of the
Fiscal Agent to mail each such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
amendment or supplemental agreement.
SECTION 10.3. Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a written consent
to it by a Holder of a Note is a continuing consent by the Holder and
every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the
consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the written consent as to such Note or
portion of a Note if a Responsible Officer of the Fiscal Agent
receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter
binds every Noteholder. Notwithstanding the foregoing, if a record
date has been established for the purpose of determining Noteholders
entitled to consent, such written notice of revocation
36
41
must be signed by the Noteholder of record as of the record date or
his duly appointed proxy.
SECTION 10.4. Notation on or Exchange of Notes. The Fiscal
Agent may place an appropriate notation relating to an amendment,
supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue, and the Fiscal Agent
shall authenticate, new Notes that reflect the amendment, supplement
or waiver.
SECTION 10.5. Fiscal Agent to Sign Amendments, Etc. In
executing, or accepting the additional obligations created by, any
supplemental agreement permitted by this Article or the modifications
thereby of the obligations created by this Agreement, the Fiscal
Agent shall be entitled to receive, and (subject to Section 9.1)
shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement.
The Fiscal Agent shall sign any amendment or supplement
authorized pursuant to this Article if the amendment or supplement
does not adversely affect the rights of the Fiscal Agent. If the
amendment or supplement does adversely affect the Fiscal Agent's
rights, the Fiscal Agent may, but need not, sign it.
ARTICLE XI
MEETINGS OF HOLDERS
SECTION 11.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of the Notes may be called at any time and from
time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement to be made, given or taken by
Holders of the Notes.
SECTION 11.2. Call, Notice and Place of Meetings. The
Company may at any time, and at the written request and direction of
the Holders of at least 25% of the aggregate principal amount of the
Notes at any time, the Fiscal Agent shall on behalf of such Holders,
call a
37
42
meeting of Holders of the Notes for any purpose specified in Section
11.1 hereof. Each such meeting shall be held at such time and at such
place in New York, New York or St. Louis, Missouri as the Company or
the Holders calling such meeting shall determine. Notice of any such
meeting of Holders of the Notes, 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 by the Company to the Fiscal Agent and
the Holders of the Notes, or by the Fiscal Agent (on behalf and at the
direction of the Holders calling the meeting) to the Company and the
Holders of the Notes, not less than 30 nor more than 60 days prior to
the date fixed for the meeting. If the Fiscal Agent shall not have
given notice of any meeting as directed by the requisite Holders
within 21 days after receiving such direction, such Holders may call a
meeting of the Holders generally by giving written notice thereof to
the Company, the Fiscal Agent and the Holders of the Notes in the
manner described above.
SECTION 11.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of the Notes, a Person
shall be (i) a Holder of the Notes or (ii) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
of the Notes. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Fiscal Agent and its counsel, and any representatives of the Company
and its counsel.
SECTION 11.4. Quorum. At any meeting of the Holders of the
Notes, a majority in aggregate principal amount of the Notes shall
constitute a quorum. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of the Notes, be dissolved. In any
other case the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of
the
38
43
reconvening of any adjourned meeting shall be given as provided in
Section 11.2, except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to
be reconvened.
Any action taken at any meeting of Holders of the Notes
duly held in accordance with this Section, if taken by the Holders of
an aggregate principal amount of the Notes required for such action by
this Agreement, shall be binding on all the Holders of the Notes,
whether or not present or represented at the meeting.
SECTION 11.5. Action by Written Consent. Any action
required or permitted to be taken by the Holders of the Notes may be
effected by consent in writing by such Holders of the Notes.
SECTION 11.6. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of
this Agreement, the Company may make such reasonable regulations as it
may deem advisable for any meeting of Holders of the Notes in regard
to proof of the holding of the Notes and of the appointment of proxies
and in regard to 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. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without other proof.
(b) The Company shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Holders of the Notes, in which case the
Holders of the Notes calling the meeting shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Notes represented at the
meeting.
(c) At any meeting each Holder of a Note or proxy therefor
shall be entitled to one vote for each $1,000 principal amount of the
Notes held or represented by such Holder; provided that no vote shall
be cast or counted at any meeting in respect of any Note ruled by
39
44
the chairman of the meeting to be not outstanding or otherwise not
entitled to vote. The chairman of the meeting shall have no right to
vote, except as a Holder of a Note or proxy.
(d) Any meeting of Holders of the Notes duly called
pursuant to Section 11.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Notes represented at the meeting, and such meeting may
be held as so adjourned without further notice.
SECTION 11.7. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of
Holders of the Notes shall be by written ballots on which shall be
subscribed the signatures of the Holders of the Notes or of their
representatives by proxy and the principal amounts and serial numbers,
if applicable, of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in triplicate of all votes cast
at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of the Notes shall be prepared by the
secretary of the meeting and there shall be attached to such record
the original reports of the inspectors of votes on any vote by ballot
taken at such meeting and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was given as provided in Section
11.2 and, if applicable, Section 11.4 hereof. Each copy shall be
signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to each
of the Company and the Fiscal Agent, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and
verified shall be presumptive evidence of the matters therein stated.
40
45
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Notices. Any notice or communication to the
Company or the Fiscal Agent by the other shall be duly given if in
writing and delivered in person or mailed by first class mail
addressed as follows:
If to the Company:
General American Life Insurance Company
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Terzog
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Fiscal Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company or the Fiscal Agent by notice to the other
may designate additional or different addresses for subsequent notices
or communications.
Any notice or communication to a Noteholder shall be
mailed by first-class mail to its address as shown on the register
kept by the Registrar. Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its sufficiency with
respect to other Noteholders. If the Company mails a notice or
communication to Noteholders, it shall mail a copy to the Fiscal Agent
and each Agent at the same time.
If a notice or communication is mailed in the manner
provided above within the time prescribed it is duly given, whether or
not the addressee receives it.
SECTION 12.2. Governing Law. This Agreement
and the Notes shall be governed by and construed in accordance with
the laws of the State of New York, except the
41
46
provisions regarding the Payment Restrictions set forth in Section
3.1, which shall be governed by, and construed in accordance with, the
laws of the State of Missouri.
SECTION 12.3. No Recourse Against Others. No director,
officer, employee, member or policyholder, as such, of the Company
shall have any liability for any obligation of the Company under the
Notes or the Agreement or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Noteholder by
accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Notes.
SECTION 12.4. Duplicate Originals. The parties may
sign any number of copies of this Agreement. Each signed copy shall
be an original, but all of them together represent the same
agreement. One signed copy is sufficient to prove this Agreement.
SECTION 12.5. Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 12.6. Successor and Assigns. All covenants and
agreements in this Agreement by the Company shall bind its successor
and assigns, whether so expressed or not.
SECTION 12.7. Separability. In case any provision of
this Agreement or the Notes 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.
SECTION 12.8. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open either in New York City, St. Louis, Missouri, or
in the city where the principal corporate office of the Fiscal Agent
is located. If a payment date is a Legal Holiday at a place of
payment, payment may be made at such place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
42
47
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the date first written
above.
GENERAL AMERICAN LIFE
INSURANCE COMPANY
By:
-------------------------------
Name:
Title: Executive Vice President
and Treasurer
THE BANK OF NEW YORK,
as Fiscal Agent
By:_______________________________
Name:
Title:
48
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the date first written
above.
GENERAL AMERICAN LIFE
INSURANCE COMPANY
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Fiscal Agent
By:/s/ X.X. Xxxxxxxxxx
-------------------------------
Name: X.X. XXXXXXXXXX
Title: VICE PRESIDENT
49
EXHIBIT A - FORM OF NOTE CERTIFICATE
(Face of Note)
CUSIP No.___________ $___________
GENERAL AMERICAN LIFE INSURANCE COMPANY
7 5/8% Surplus Note due 2024
GENERAL AMERICAN LIFE INSURANCE COMPANY, a mutual life
insurance corporation organized under the laws of the State of
Missouri, promises to pay to __________ or registered assigns, the
principal sum of $___________ on the first business day on or after
__________, ____ on which the Payment Restrictions (as defined on the
reverse hereof) are satisfied.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, GENERAL AMERICAN LIFE INSURANCE
COMPANY has caused this Note to be signed by its duly authorized
officers and its corporate seal to be affixed hereto or imprinted
hereon.
GENERAL AMERICAN LIFE
INSURANCE COMPANY
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Dated: ____________
Certificate of Authentication:
This is one of the Notes of a series issued under the
within-mentioned Fiscal Agency Agreement.
Dated: __________ THE BANK OF NEW YORK,
as Fiscal Agent
By_______________________
Authorized Signatory
50
(Reverse of Note)
GENERAL AMERICAN LIFE INSURANCE COMPANY
7 5/8% Surplus Note due 2024
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER (OR ANY SUCCESSOR PROVISION THERETO, AND
AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
GENERAL AMERICAN LIFE INSURANCE COMPANY THAT (A) THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) BY THE INITIAL INVESTOR (I) 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 ACCORDANCE WITH
RULE 903 OR 904 OF REGULATION S (OR ANY SUCCESSOR PROVISION
THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME)
UNDER THE SECURITIES 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 SECURITIES 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
ACCREDITED INVESTOR, AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT, IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES 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.
1. Interest. GENERAL AMERICAN LIFE INSURANCE COMPANY
("General American"), a mutual life insurance corporation organized
under the laws of the State of
2
51
Missouri, promises to pay interest on the principal amount of this
Note at the rate of 7 5/8% per annum. General American will pay
interest semi-annually on January 15 and July 15 of each year,
commencing July 15, 1994 (or if later, in each case, on the first day
following such date on which the Payment Restrictions are satisfied)
to holders of Notes at the close of business on the relevant record
dates specified in paragraph 2 below. Interest on the Notes will
accrue from the most recent date to which interest has been paid or
if no interest has been paid, from January 24, 1994. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. General American will pay interest
on the Notes to the persons who are registered holders of Notes at
the close of business on the January 1 or July 1 next preceding the
Interest Payment Date (including Notes that are cancelled after the
record date and on or before the Interest Payment Date). Holders must
surrender Notes to a Paying Agent to collect payments of principal.
General American will pay interest and principal in money of the
United States that at the time of payment is legal tender for payment
of public and private debts. However, General American may pay
interest and principal by check payable in such money. It may mail an
interest check to a Holder's registered address. Payments of interest
on or principal of the Notes may be made, in the case of a registered
owner of at least $5,000,000 aggregate principal amount of Notes, by
wire transfer to an account maintained by the registered owner with a
bank. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding Business
Day, and no interest on the amount payable on such payment date shall
accrue for the intervening period.
3. Paying Agent; Registrar. Initially, The Bank of New
York (the "Fiscal Agent") will act as Paying Agent and Registrar.
General American may change any Paying Agent, Registrar or
co-registrar by giving notice to the Fiscal Agent. General American
may act as Paying Agent, Registrar or co-registrar.
4. Agreement. General American issued this Note as one of
a duly authorized issue of Notes of General American designated as
its 7 5/8% Surplus Notes due 2024 (the "Notes") under a Fiscal Agency
Agreement, dated as of January 24, 1994 (the "Agreement"), between
General American and the Fiscal Agent. The terms of the Notes
3
52
include those stated in the Agreement. The Notes are subject to all
such terms, and Noteholders are referred to the Agreement for a
statement of such terms. Unless the context otherwise requires, terms
used herein that are defined in the Agreement shall have the
respective meanings assigned thereto in the Agreement.
5. Payment Restrictions. (a) Except as set forth in
Section 8.2(3) of the Agreement relating to the rehabilitation,
liquidation, reorganization, conservation or dissolution of General
American, each payment of interest on or principal of the Notes may
be made only (i) with the approval of the Missouri Director, which
approval will be granted only when the Missouri Director is satisfied
that the financial condition of the Company warrants such payment,
and (ii) only out of Unassigned Funds (Surplus), the Special Surplus
Account and the Debt Service Account. Interest will continue to
accrue on any such unpaid principal through the actual date of
payment at the Stated Rate. Interest will not, however, accrue on
interest with respect to which the Scheduled Interest Payment Date
has been delayed following the Interest Payment Date. If the Missouri
Director approves a payment of interest on or principal of the Notes
in an amount that is less than the full amount of interest on or
principal of the Notes then scheduled to be paid in respect of the
Notes, payment of such partial amount shall be made pro rata among
Noteholders as their interests may appear.
(b) Subject to Section 2.5(d) of the Agreement, any
payment of interest on or principal of any Note which is not
punctually paid or duly provided for on the relevant Scheduled
Interest Payment Date or Scheduled Maturity Date, as the case may be
(such payment being referred to as an "Unpaid Amount"), will
forthwith cease to be payable to the registered owner of such Note on
the relevant Record Date, and such Unpaid Amount, together with
accrued interest thereon (if any) to the extent provided in Section
2.5(d) of the Agreement, will instead be payable to the registered
owner of such Note on a subsequent special record date. The Company
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 Company shall mail to each Holder of the Notes 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
4
53
Holder of the Notes in the manner set forth in Section 2.5(a) of this
Agreement.
6. ERISA Restrictions. 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 Code, as to which General American is a party in
interest or a disqualified person (each a "Plan"), and no Person
acting on behalf of a Plan, may acquire this Note, unless the
acquisition of the Note 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 Note constitutes a representation by such Person to General
American and the Fiscal Agent that such Person either (i) is not a
Plan or (ii) is a Plan, but may acquire such Note under an applicable
exemption from the prohibitions under Section 406 of ERISA and Section
4975 of the Code.
7. Subordination. The Notes are subordinated to Policy
Claims, Indebtedness and Prior Claims, in each case as defined in the
Agreement. To the extent provided in the Agreement, Policy Claims,
Indebtedness and Prior Claims must be paid in full before the Notes
may be paid. General American agrees, and each Noteholder by accepting
a Note agrees, to the subordination provisions contained in the
Agreement and authorizes the Fiscal Agent to give effect to such
provisions, and each Noteholder appoints the Fiscal Agent its
attorney-in-fact for any and all such purposes.
8. Denominations, Transfer, Exchange. Certain of the
Notes were initially represented by Notes issued in global form.
Such global Note represents such of the outstanding Notes as shall
be specified therein or endorsed thereon in accordance with the
Agreement. The Note Certificates are in registered form without
coupons in minimum denominations of $250,000 and whole multiples of
$1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Agreement. The Registrar may require a
holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or
permitted by the Agreement.
9. Persons Deemed Owners. The Holder of a Note may be
treated as its owner for all purposes.
5
54
10. Amendment, Supplement, Waiver. Subject to certain
exceptions set forth in Section 10.2 of the Agreement, the Agreement
or the Notes may be amended or supplemented, with the consent of
General American and the Holders of a majority in aggregate principal
amount of the Notes, and any existing default may be waived with the
consent of the Holders of at least a majority in aggregate principal
amount of the Notes. Without the consent of any Noteholder, the
Agreement or the Notes may be amended, inter alia, to cure any
ambiguity or correct any defective provision, to evidence the
succession of another entity to General American and provide for
assumption of General American's covenants and obligations under the
Agreement and the Notes or to make any change that the Fiscal Agent
and General American determine is necessary or desirable and which
shall not materially adversely affect the rights of any Noteholder all
as set forth in Section 10.1 of the Agreement.
11. Fiscal Agent Dealings With General American. The
Fiscal Agent under the Agreement, in its individual, or any other
capacity, may make loans to, accept deposits from, and perform
services for General American and may otherwise deal with General
American as if it were not Fiscal Agent.
12. No Recourse Against Others. A director, officer,
employee or member, as such, of General American shall not have any
liability for any obligations of General American under the Notes or
the Agreement or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Noteholder by accepting a
Note waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
13. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Fiscal Agent or an
Authenticating Agent on the face hereof.
14. Abbreviations. Customary abbreviations may be
used in the name of a Noteholder or an assignee, such as: TEN COM (=
tenants in common), TENANT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
6
55
15. Governing Law. The laws of the State of New York shall
govern the Agreement and the Notes, except the provisions regarding
Payment Restrictions set forth in Section 3.1. of the Agreement which
shall be governed by, and construed in accordance with, the laws of
the State of Missouri.
General American will furnish to any Noteholder upon
written request and without charge a copy of the Agreement. Requests
may be made to: General American Life Insurance Company, 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Treasurer.
7
56
ASSIGNMENT FORM
To assign this Note fill in the form below:
We assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________ agent to transfer this
Note on the books of General American Life Insurance Company. The agent may
substitute another to act for him.
Date:_______________ Your signature:_______________________________
(Sign exactly as your
name appears on the other
side of this Note)
Signature Guaranteed:
8
57
EXHIBIT B - FORM OF NOTE IN GLOBAL FORM
(Face of Note)
CUSIP No. 368770 AAl $____________
GENERAL AMERICAN LIFE INSURANCE COMPANY
7 5/8% Surplus Note due 2024
GENERAL AMERICAN LIFE INSURANCE COMPANY, a mutual life
insurance corporation organized under the laws of the State of
Missouri, promises to pay to Cede & Co., or registered assigns, the
principal sum of $___________ on the first business day on or after
_____________, on which the Payment Restrictions (as defined on the
reverse hereof) are satisfied.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, GENERAL AMERICAN LIFE INSURANCE
COMPANY has caused this Note to be signed by its duly authorized
officers and its corporate seal to be affixed hereto or imprinted
hereon.
GENERAL AMERICAN LIFE
INSURANCE COMPANY
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
Dated:__________________
Certificate of Authentication:
This is one of the Notes of a series issued under the
within-mentioned Fiscal Agency Agreement
Dated:__________________ THE BANK OF NEW YORK,
as Fiscal Agent
By_____________________________________
Authorized Signatory
58
(Reverse of Note)
GENERAL AMERICAN LIFE INSURANCE COMPANY
7 5/8% Surplus Note due 2024
Unless and until it is exchanged in whole or in part for
Note Certificates, this Note may not be transferred except as a whole
(i) by the Depository to a nominee of the Depository, (ii) by a
nominee of the Depository to the Depository or another nominee of the
Depository or (iii) by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository. Unless
this certificate is presented by an authorized representative of The
Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("DTC")
to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such
other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT", AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED) IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER (OR ANY SUCCESSOR PROVISION THERETO, AND
AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
GENERAL AMERICAN LIFE INSURANCE COMPANY THAT (A) THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) BY THE INITIAL INVESTOR (I) 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 ACCORDANCE WITH
RULE 903 OR 904 OF REGULATION S (OR ANY SUCCESSOR PROVISION
THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME)
UNDER THE SECURITIES ACT OR (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 (OR
2
59
ANY SUCCESSOR PROVISION THERETO, AND AS MAY BE HEREAFTER AMENDED
FROM TIME TO TIME) UNDER THE SECURITIES 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 ACCREDITED INVESTOR, AS DEFINED IN RULE 501(a)
(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES 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 REFEREED TO IN (A) ABOVE.
1. Interest. GENERAL AMERICAN LIFE INSURANCE COMPANY ("General American"),
a mutual life insurance corporation organized under the laws of the
State of Missouri, promises to pay interest on the principal amount of
this Note at the rate of 7 5/8% per annum. General American will pay
interest semi-annually on January 15 and July 15 of each year,
commencing July 15, 1994 (or if later, in each case, on the first day
following such date on which the Payment Restrictions are satisfied) to
holders of Notes at the close of business on the relevant record dates
specified in paragraph 2 below. Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest
has been paid, from January 24, 1994. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment. General American will pay interest on the Notes to
the persons who are registered holders of Notes at the close of business
on the January 1 or July 1 next preceding the Interest Payment Date
(including Notes that are cancelled after the record date and on or
before the Interest Payment Date). Holders must surrender Notes to a
Paying Agent to collect payments of principal. General American will pay
interest and principal in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
However, General American may pay interest and principal by check
payable in such money. It may mail an interest check to a Holder's
registered address. Payments of interest on or principal of the Notes
may be made, in the case of a registered owner of
3
60
at least $5,000,000 aggregate principal amount of Notes, by wire transfer to an
account maintained by the registered owner with a bank. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding Business Day, and no interest on the amount payable on such
payment date shall accrue for the intervening period.
3. Paying Agent; Registrar. Initially, The Bank of New York (the "Fiscal
Agent") will act as Paying Agent and Registrar. General American may change any
Paying Agent, Registrar or co-registrar by giving notice to the Fiscal Agent.
General American may act as Paying Agent, Registrar or co-registrar.
4. Agreement. General American issued this Note as one of a duly authorized
issue of Notes of General American designated as its 7 5/8% Surplus Notes due
2024 (the "Notes") under a Fiscal Agency Agreement, dated as of January 24, 1994
(the "Agreement"), between General American and the Fiscal Agent. The terms of
the Notes include those stated in the Agreement. The Notes are subject to all
such terms, and Noteholders are referred to the Agreement for a statement of
such terms. Unless the context otherwise requires, terms used herein that are
defined in the Agreement shall have the respective meanings assigned thereto in
the Agreement.
5. Payment Restrictions. (a) Except as set forth in Section 8.2(3) of the
Agreement relating to the rehabilitation, liquidation, reorganization,
conservation or dissolution of General American, each payment of interest on or
principal of the Notes may be made only (i) with the approval of the Missouri
Director, which approval will be granted only when the Missouri Director is
satisfied that the financial condition of the Company warrants such payment, and
(ii) only out of Unassigned Funds (Surplus), the Special Surplus Account and the
Debt Service Account. Interest will continue to accrue on any such unpaid
principal through the actual date of payment at the Stated Rate. Interest will
not, however, accrue on interest with respect to which the Scheduled Interest
Payment Date has been delayed following the Interest Payment Date. If the
Missouri Director approves a payment of interest on or principal of the Notes in
an amount that is less than the full amount of interest on or principal of the
Notes then scheduled to be paid in respect of the Notes, payment of such partial
amount shall be made pro rata among Noteholders as their interests may appear.
4
61
(b) Subject to Section 2.5(d) of the Agreement, any payment of
interest on or principal of any Note which is not punctually paid or
duly provided for on the relevant Scheduled Interest Payment Date or
Scheduled Maturity Date, as the case may be (such payment being
referred to as an "Unpaid Amount"), will forthwith cease to be payable
to the registered owner of such Note on the relevant Record Date, and
such Unpaid Amount, together with accrued interest thereon (if any) to
the extent provided in Section 2.5(d) of the Agreement, will instead
be payable to the registered owner of such Note on a subsequent
special record date. The Company 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 Company shall mail to each Holder
of the Notes 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 Notes in the manner set forth in Section 2.5(a) of the
Agreement.
6. ERISA Restrictions. 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 Code, as to which General American is a party in interest or a
disqualified person (each a "Plan"), and no Person acting on behalf of
a Plan, may acquire this Note, unless the acquisition of the Note 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 Note constitutes
a representation by such Person to General American and the Fiscal
Agent that such Person either (i) is not a Plan or (ii) is a Plan, but
may acquire such Note under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code.
7. Subordination. The Notes are subordinated to Policy Claims,
Indebtedness and Prior Claims, in each case as defined in the
Agreement. To the extent provided in the Agreement, Policy Claims,
Indebtedness and Prior Claims must be paid in full before the Notes
may be paid. General American agrees, and each Noteholder by accepting
a Note agrees, to the subordination provisions contained
5
62
in the Agreement and authorizes the Fiscal Agent to give effect to
such provisions, and each Noteholder appoints the Fiscal Agent its
attorney-in-fact for any and all such purposes.
8. Denomination, Transfer, Exchange. This global security
represents such of the outstanding Notes as shall be specified herein
or endorsed herein in accordance with the Agreement. The aggregate
amount of outstanding Notes represented hereby may from time to time
be reduced or increased to reflect exchanges. The Note Certificates
are in registered form without coupons in minimum denominations of
$250,000 and whole multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Agreement.
The Registrar may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Agreement.
9. Persons Deemed Owners. The Holder of a Note may be treated as
its owner for all purposes.
10. Amendment, Supplement, Waiver. Subject to certain exceptions
set forth in Section 10.2 of the Agreement, the Agreement or the Notes
may be amended or supplemented, with the consent of General American
and the Holders of a majority in aggregate principal amount of the
Notes, and any existing default may be waived with the consent of the
Holders of at least a majority in aggregate principal amount of the
Notes. Without the consent of any Noteholder, the Agreement or the
Notes may be amended, inter alia, to cure any ambiguity or correct any
defective provision, to evidence the succession of another entity to
General American and provide for assumption of General American's
covenants and obligations under the Agreement and the Notes or to make
any change that the Fiscal Agent and General American determine is
necessary or desirable and which shall not materially adversely affect
the rights of any Noteholder all as set forth in Section 10.1 of the
Agreement.
11. Fiscal Agent Dealings With General American. The Fiscal Agent
under the Agreement, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for General
American and may otherwise deal with General American as if it were
not Fiscal Agent.
6
63
12. No Recourse Against Others. A director, officer,
employee or member, as such, of General American shall not have any
liability for any obligations of General American under the Notes or
the Agreement or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Noteholder by accepting
a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
13. Authentication. This Note shall not be valid
until authenticated by the manual signature of the Fiscal Agent or
an Authenticating Agent on the face hereof.
14. Abbreviations. Customary abbreviations may be used in
the name of a Noteholder or an assignee, such as: TEN COM (= tenants
in common), TENANT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
15. Governing Law. The laws of the State of New York
shall govern the Agreement and the Notes, except the provisions
regarding Payment Restrictions set forth in Section 3.1 of the
Agreement which shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
General American will furnish to any Noteholder upon
written request and without charge a copy of the Agreement. Requests
may be made to: General American Life Insurance Company, 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Treasurer.
7
64
ASSIGNMENT FORM
To assign this Note fill in the form below;
We assign and transfer this note to
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
an irrevocably appoint__________________________________________________________
agent to transfer this Note on the books of General American Life Insurance
Company. The agent may substitute another to act for him.
Date:__________________ Your signature:______________________________
(Sign exactly as
your name appears
on the other side
of this Note)
Signature Guaranteed:
8
65
SCHEDULE OF EXCHANGES FOR NOTE CERTIFICATES
The following exchanges of a part of this Note in global form
for Note Certificates or of Note Certificates for a part of this Note in
global form have been made:
Principal
Amount of
Amount of Amount of this Note Signature of
decrease in Principal in global authorized
Principal Amount Amount of form following officer of
Date of of this Note this Note such decrease Fiscal Agent
Exchange in global form in global form (or increase) or Custodian
-------- -------------- -------------- ------------- ------------
9
66
EXHIBIT C - CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 7 5/8% Surplus Note due 2024 of General American Life Insurance
Company.
This Certificate relates to $________________ principal amount
of Notes held in * __ book-entry or *__ certificated form by -_____________
(the "Transferor").
The Transferor*:
[_] has requested the Registrar and the Fiscal Agent by written
order to deliver in exchange for its beneficial interest in Notes in global
form held by the Depository a Note Certificate or Note Certificates of
authorized denominations and in an aggregate principal amount equal to its
beneficial interest in such Notes in global form (or the portion thereof
indicated above); or
[_] has requested the Registrar and the Fiscal Agent by written
order to cause it, in exchange for its surrendering a Note Certificate or
Note Certificates for cancellation, to be recorded as the owner of a
beneficial interest in Notes in global form of an authorized denomination
and an aggregate principal amount equal to its aggregate interest in such
Note Certificate or Note Certificates (or the portion thereof indicated
above); or
[_] has requested the Registrar and the Fiscal Agent by written
order to exchange or register the transfer of a Note or Notes.
In connection with such request and in respect of each such
Note, the Transferor does hereby certify to General American Life Insurance
Company and the Registrar as follows:*
[_] Such Note is owned by the Transferor and is being
exchanged without transfer; or
[_] Such Note is being transferred to a qualified institutional
buyer (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")) in reliance on Rule 144A; or
[_] Such Note is being transferred in accordance with Rule
144(k) under the Securities Act; or
67
[_] Such Note is being transferred in accordance with
Regulation S under the Securities Act; or
[_] Such Note is being transferred pursuant to another available
exemption from registration under the Securities Act.
[INSERT NAME OF TRANSFEROR]
By:____________________________________________
Date:_____________________
* Check applicable box.
2
