EXHIBIT 10.3
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FISCAL AGENCY AGREEMENT
between
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
Issuer
and
THE FIRST NATIONAL BANK OF BOSTON
Fiscal Agent
__________________________
Dated as of February 25, 1994
__________________________
7 3/8% Surplus Notes scheduled to mature on February 15, 2024
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TABLE OF CONTENTS
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Page
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1. The Securities ...................................................... 1
(a) General ......................................................... 1
(b) Forms of Securities ............................................. 1
(c) Book-Entry Provisions ........................................... 2
(d) Denominations ................................................... 4
2. Fiscal Agent; Other Agents .......................................... 4
3. Authentication ...................................................... 5
4. Payment and Cancellation ............................................ 6
(a) Payment ......................................................... 6
(b) Cancellation .................................................... 7
5. Global Securities ................................................... 7
6. Registration, Transfer and Exchange of Securities ................... 9
7. Delivery of Certain Information ..................................... 12
(a) Rule 144A Information ........................................... 12
(b) Periodic Reports ................................................ 12
8. Conditions of Fiscal Agent's Obligations ............................ 12
(a) Compensation and Indemnity ...................................... 13
(b) Agency .......................................................... 13
(c) Advice of Counsel ............................................... 14
(d) Reliance ........................................................ 14
(e) Interest in Securities, etc. ..................................... 14
(f) Non-Liability for Interest ...................................... 14
(g) Certifications .................................................. 14
(h) No Implied Obligations .......................................... 15
9. Resignation, Removal and Appointment of Successor ................... 15
(a) Fiscal Agent and Paying Agent ................................... 15
(b) Resignation and Removal ......................................... 15
(c) Successors ...................................................... 16
(d) Acknowledgement ................................................. 17
(e) Merger, Consolidation, etc. ...................................... 17
10. Meetings and Amendments ............................................ 17
(a) Calling of Meeting, Notice and Quorum .......................... 17
(b) Approval ....................................................... 19
(c) Binding Nature of Amendments, Notices, Notations, etc. .......... 20
(d) "Outstanding" Defined .......................................... 21
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11. Governing Law ...................................................... 22
12. No Implied Obligations ............................................. 22
13. Notices ............................................................ 22
14. Separability ....................................................... 23
15. Headings ........................................................... 24
16. Counterparts ....................................................... 24
EXHIBIT A FORM OF SECURITY ............................................. A-1
EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR
EXCHANGE OR TRANSFER OF RESTRICTED
DEFINITIVE SECURITY .......................................... B-1
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FISCAL AGENCY AGREEMENT, dated as of February 25, 1994, between XXXX
XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a mutual life insurance company organized
under the laws of the Commonwealth of Massachusetts (the "Issuer"), having its
principal office at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, and The First
National Bank of Boston, a national banking association organized under the laws
of the United States, as Fiscal Agent (together with any successor as Fiscal
Agent hereunder, the "Fiscal Agent"). The Exhibits attached hereto shall be
deemed to be a part of this Agreement.
1. The Securities.
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(a) General. This Agreement is made in respect of $450,000,000 aggregate
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principal amount of 7 3/8% Surplus Notes scheduled to mature on February 15,
2024 (the "Notes" or the "Securities") of the Issuer. Claims based upon the
Securities will rank below all Indebtedness, Policy Claims and Prior Claims
(each as hereinafter defined) upon the terms and conditions set forth in Section
10 of the Notes. The payment by the Issuer of principal and interest on the
Securities shall be conditioned upon the payment restrictions set forth in
paragraphs 4 and 10 of the Securities (the "Payment Restrictions"). The Notes
are scheduled to mature on February 15, 2024 (the "Scheduled Maturity Date").
Any reference herein to the term "scheduled maturity date" or other date for the
payment of principal of the Notes shall include the date upon which any state or
federal agency obtains an order or grants approval for the reorganization,
rehabilitation, liquidation, conservation or dissolution of the Issuer.
(b) Forms of Securities. The Securities are being offered and sold by the
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Issuer pursuant to a Purchase Agreement, dated February 17, 1994 (the "Purchase
Agreement"), between the Issuer and the Purchasers named therein (the
"Purchasers") either (i) to "institutional investors" that are "accredited
investors" ("Accredited Investors") within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act of 1933, as amended (the
"Act"), in definitive, fully registered form without interest coupons
("Definitive Securities") or (ii) to qualified institutional buyers within the
meaning of Rule 144A ("Rule 144A") under the Act in the form of global
Securities (the "global Securities") in definitive, fully registered form
without interest coupons. The Securities shall be substantially in the form of
the Security attached as Exhibit A hereto, with such applicable legends as are
provided for in Exhibit A. Each such global Security shall be registered in the
name of The Depository Trust Company (together with any successor depositary,
the "Depositary")
or its nominee and deposited with the Fiscal Agent or its affiliate, as
custodian for the Depositary, duly executed by the Issuer and authenticated by
the Fiscal Agent as hereinafter provided. The aggregate principal amount of each
global Security may from time to time be increased or decreased by adjustments
made on the records of the Fiscal Agent, as custodian for the Depositary, as
hereinafter provided.
All Securities shall be issued substantially in the form of Security
attached hereto as Exhibit A and shall be executed manually or in facsimile on
behalf of the Issuer by (i) any two of Chief Financial Officer Xxxxxx X.
Xxxxxxx, Senior Vice President and Treasurer Xxxx X. Xxxxxx, Second Vice
President Xxxxx X. Xxxxxxxx, or any one of the foregoing and Assistant Treasurer
Xxxxx X. Xxxxx, Assistant Treasurer Xxxxx X. Xxxxxxxxx or Assistant Treasurer
Xxxx X. Xxxxxxxx, Xx. or (ii) any other officer or officers of the Issuer that
may be certified to the Fiscal Agent as being authorized to execute the
Securities manually or in facsimile on behalf of the Issuer (the "Authorized
Officers"), notwithstanding that such officers, or any of them, shall have
ceased, for any reason, to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of any such
Security. The Securities (i) may also have such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement, and (ii) may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with this Agreement, any law or with any rules made
pursuant thereto or with the rules of any securities exchange, insurance
regulatory or other governmental agency or depositary therefor or as may,
consistently herewith, be determined by the Authorized Officers executing such
Securities, in each case (i) and (ii) as conclusively evidenced by their proper
execution of such Securities.
(c) Book-Entry Provisions. This Section 1(c) shall apply to all global
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Securities.
The Issuer shall execute and the Fiscal Agent shall, in accordance with
this Section 1(c), authenticate and deliver one or more global Securities as
required to be issued pursuant to Section 1(b) hereof, which (A) shall be
registered in the name of the Depositary or its nominee, (B) shall be delivered
by the Fiscal Agent to the Depositary or pursuant to the Depositary's
instructions and (C) shall bear legends substantially to the following effect:
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"UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF DEPOSITARY] TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IN EXCHANGE
FOR THIS SECURITY OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF
[INSERT NAME OF NOMINEE OF DEPOSITARY] OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF
DEPOSITARY] (AND ANY PAYMENT IS MADE TO [INSERT NAME OF NOMINEE OF
DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY]), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN
[INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, [INSERT NAME OF NOMINEE OF DEPOSITARY],
HAS AN INTEREST HEREIN."
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL
AGENCY AGREEMENT. THIS GLOBAL SECURITY MAY NOT BE EXCHANGED, IN WHOLE
OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY PERSON OTHER
THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY
AGREEMENT, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(B) OF THE
FISCAL AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(B) OF THE
FISCAL AGENCY AGREEMENT."
Neither any members of, or participants in, the Depositary ("Agent
Members") nor any other persons on whose behalf Agent Members may act shall have
any rights under this Fiscal Agency Agreement with respect to any global
Security registered in the name of the Depositary or any nominee thereof, or
under any such global Security, and the Depositary or such nominee, as the case
may be, may be treated by the Issuer, the Fiscal Agent and any agent of the
Issuer or the Fiscal Agent as the absolute owner and holder of such global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or
the Fiscal Agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be,
or impair, as between the Depositary, its Agent Members and any other
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person on whose behalf an Agent Member may act, the operation of customary
practices of such persons governing the exercise of the rights of a holder of
any Security.
(d) Denominations. The Securities and beneficial interests in global
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Securities shall be issuable in minimum denominations of (i) $250,000, in the
case of Securities offered and sold, or subsequently transferred, in reliance on
Rule 144A, (ii) $500,000, in the case of Securities offered and sold, or
subsequently transferred, to Accredited Investors or (iii) $500,000 the case of
Securities subsequently transferred in reliance on Regulation S under the Act,
and, in each case, any amount in excess thereof that is an integral multiple of
$1,000.
2. Fiscal Agent; Other Agents.
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The Issuer hereby appoints The First National Bank of Boston, acting
through its corporate trust office at Blue Hills Office Park, 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, attn: Corporate Trust Division and the office of
its affiliate, BancBoston Trust Company of New York (for payments, exchanges and
transfers) in the Borough of Manhattan, The City of New York (together, the
"Corporate Trust Office"), as fiscal agent of the Issuer in respect of the
Securities upon the terms and subject to the conditions herein set forth, and
The First National Bank of Boston hereby accepts such appointment. The First
National Bank of Boston, and any successor or successors as such fiscal agent
qualified and appointed in accordance with Section 9 hereof, are herein called
the "Fiscal Agent". The Fiscal Agent shall have the powers and authority granted
to and conferred upon it in the Securities and hereby and such further powers
and authority to act on behalf of the Issuer as may be mutually agreed upon in
writing by the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a copy
of this Agreement available for inspection during normal business hours at its
Corporate Trust Office. The Fiscal Agent or any Paying Agent (as defined below)
shall also act as Transfer Agent (as defined below). All of the terms and
provisions with respect to such powers and authority contained in the Securities
are subject to and governed by the terms and provisions hereof.
The Issuer may, at its discretion, appoint one or more agents (a "Paying
Agent" or "Paying Agents") for the payment, to the extent permitted under the
Payment Restrictions, of the principal of and any interest on the Securities,
and one or more agents (a "Transfer Agent" or "Transfer Agents") for the
transfer and exchange of Securities, at such place or places as the Issuer may
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determine; provided, however, that the Issuer shall at all times maintain a
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Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New
York (which Paying Agent and Transfer Agent may be the Fiscal Agent or its
affiliate). The Issuer hereby initially appoints the Fiscal Agent or its
affiliate, as appropriate, at its respective Corporate Trust Office as principal
Paying Agent, Transfer Agent, authenticating agent and securities registrar, and
the Fiscal Agent or its affiliate, as appropriate, hereby accepts such
appointment. Each Transfer Agent shall act as a security registrar and there
shall be kept at the office of each Transfer Agent a register in which, subject
to such reasonable regulations as the Issuer may prescribe, the Issuer shall
provide for the registration of Securities and the registration of transfers of
Securities. The Issuer shall promptly notify the Fiscal Agent of the name and
address of any other Paying Agent or Transfer Agent appointed by it, and will
notify the Fiscal Agent of the resignation or termination of any such Paying
Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the
Issuer may vary or terminate the appointment of any such Paying Agent or
Transfer Agent at any time and from time to time upon giving not less than 90
days' notice to such Paying Agent or Transfer Agent, as the case may be, and to
the Fiscal Agent. The Issuer shall cause notice of any resignation, termination
or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of
any change in the office through which any such Agent will act to be provided to
holders of Securities.
3. Authentication.
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The Fiscal Agent is authorized, upon receipt of Securities duly executed on
behalf of the Issuer for the purposes of the original issuance of Securities,
(i) to authenticate said Securities in an aggregate principal amount not in
excess of $450,000,000, and to deliver said Securities in accordance with the
written order or orders of the Issuer signed on its behalf by the Authorized
Officers and (ii) thereafter to authenticate and deliver Securities in
accordance with the provisions therein and hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint by an
instrument or instruments in writing one or more agents (which may include
itself) for the authentication of the Securities and, with such consent, vary or
terminate any such appointment upon written notice and approve any change in the
office through which any authenticating agent acts. The Issuer (by written
notice to the Fiscal Agent and the authenticating agent whose
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appointment is to be terminated) may also terminate any such appointment at any
time. The Fiscal Agent hereby agrees to solicit written acceptances from the
entities concerned (in form and substance satisfactory to the Issuer) of such
appointments. In its acceptance of such appointment, each such authenticating
agent shall agree to act as an authenticating agent pursuant to the terms and
conditions of this Agreement.
4. Payment and Cancellation
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(a) Payment. For so long as the Fiscal Agent is acting as a Paying Agent
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hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the
Fiscal Agent, in immediately available funds on or prior to 10:00 a.m., New York
time, on each date on which a payment of principal of or any interest on the
Securities shall be scheduled, as set forth in the text of the Securities, such
amount, in U.S. dollars, as is necessary to make such payment, and the Issuer
hereby authorizes and directs the Fiscal Agent from funds so provided to it to
make or cause to be made payment of the principal of and any interest, as the
case may be, on the Securities in the manner, at the times and for the purposes
set forth herein and in the text of said Securities; provided that (1) any
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payment of principal of or any interest on the Securities may be made by dollar
check mailed to the persons (the "registered holders") in whose names such
Securities are registered on the register maintained pursuant to Section 6
hereof at the close of business on the record dates designated in the text of
the Securities and (2) the Issuer will not provide any such funds to the Fiscal
Agent prior to such time as the relevant payment of principal or interest is
approved by the Commissioner of Insurance of the Commonwealth of Massachusetts
(the "Commissioner", which term shall include such governmental officer, body or
authority as may after the date hereof succeed such Commissioner as the primary
regulator of the Issuer's financial condition under applicable law). The Fiscal
Agent may rely on written notice of such approval, when received, without
inquiry. Payments of principal of or any interest on the Securities may be made,
in the case of a registered holder of at least $5,000,000 aggregate principal
amount of Securities, by wire transfer to a dollar account maintained by the
payee with a bank in accordance with Section 5(a) of the Securities if such
registered holder so elects by giving written notice to the Fiscal Agent, not
less than 15 days (or such fewer days as the Fiscal Agent may accept at its
discretion) prior to the date on which such payments are scheduled to be made,
of such election and of the account to which payment is to be made. Unless such
designation is revoked, any such
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designation made by such registered holder with respect to such Securities shall
remain in effect with respect to any future payments with respect to such
Securities payable to such registered holder. The Issuer shall pay any
reasonable administrative costs in connection with making any such payments. The
Fiscal Agent shall arrange directly with any other Paying Agent who may have
been appointed by the Issuer pursuant to the provisions of Section 2 hereof for
the payment, subject to the Payment Restrictions, from funds so paid to it by
the Issuer of the principal of and any interest on the Securities in the manner,
at the times and for the purposes set forth herein and in the text of the
Securities. Notwithstanding the foregoing, the Issuer may provide directly to a
Paying Agent funds for the payment, subject to the Payment Restrictions, of the
principal thereof and interest thereon under an agreement with respect to such
funds containing substantially the same terms and conditions set forth in this
Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no
responsibility with respect to any funds so provided by the Issuer to any such
Paying Agent.
Payments of principal of and interest on the Securities shall be made in
the manner set forth in the Securities, including the Payment Restrictions set
forth therein.
(b) Cancellation. All Securities delivered to the Fiscal Agent (or any
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other Agent appointed by the Issuer pursuant to Section 2 hereof) for payment,
redemption or registration of transfer or exchange as provided herein or in the
Securities shall be marked "cancelled" and, in the case of any other such Agent,
forwarded to the Fiscal Agent. All such Securities shall be destroyed by the
Fiscal Agent or such other person as may be jointly designated by the Issuer and
the Fiscal Agent, which shall thereupon furnish certificates of such destruction
to the Issuer.
5. Global Securities.
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(a) Notwithstanding any other provisions of this Agreement or the
Securities, a global Security shall not be exchanged in whole or in part for a
Security registered in the name of any person other than the Depositary or one
or more nominees thereof, provided that a global Security may also be exchanged
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for Securities registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has notified the Issuer that it
is unwilling or unable to continue as Depositary for such global Security or
such Depositary has ceased to be a "clearing agency" registered under the
Securities Exchange
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Act of 1934 (the "Exchange Act"), (ii) an event (as
described in paragraph 14(a), or the first sentence of paragraph 14(b) of the
Securities), has occurred and is continuing with respect to the Securities, or
(iii) a request for an exchange of interests in the global Security for
definitive certificates has been made upon 60 days' prior written notice given
to the Fiscal Agent in accordance with the Depositary's customary procedures and
a copy of such notice has been received by the Issuer from the Fiscal Agent.
Any global Security exchanged pursuant to clause (i) above shall be so exchanged
in whole and not in part and any global Security exchanged pursuant to clause
(ii) or (iii) above may be exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in exchange for a global
Security or any portion thereof shall be a global Security, provided that any
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such Security so issued that is registered in the name of a person other than
the Depositary or a nominee thereof shall not be a global Security.
(b) Securities issued in exchange for a global Security or any portion
thereof shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate principal amount equal to that of such global
Security or portion thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the Depositary shall designate
and shall bear the applicable legends provided for herein. Any global Security
to be exchanged in whole shall be surrendered by the Depositary to the Transfer
Agent or its affiliate. With regard to any global Security to be exchanged in
part, either such global Security shall be so surrendered for exchange or, if
the Fiscal Agent is acting as custodian for the Depositary or its nominee with
respect to such global Security, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Fiscal Agent. Upon any such
surrender or adjustment, the Fiscal Agent shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof. Any Security delivered in exchange for the
global Security or any portion thereof shall bear the legend regarding transfer
restrictions applicable to the global Security set forth on the form of Security
attached as Exhibit A hereto, unless, pursuant to Section 6(g) hereof, the
Issuer determines that such legend may be removed.
(c) Subject to the provisions of Section 1(c) above, the registered holder
may grant proxies and otherwise authorize any person, including Agent Members
and persons
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that may hold interests through Agent Members, to take any action which
a registered holder is entitled to take under this Agreement or the Securities.
(d) In the event of the occurrence of any of the events specified in
paragraph (a) of this Section 5, the Issuer will promptly make available to the
Fiscal Agent a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
6. Registration, Transfer and
Exchange of Securities.
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(a) General. The Fiscal Agent or its affiliate, as appropriate, as agent
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of the Issuer for this purpose, shall maintain at its Corporate Trust Office in
the Borough of Manhattan, The City of New York, a register of Securities for the
registration of Securities and the transfers and exchanges thereof. Subject to
the provisions of this Section 6, upon presentation for transfer or exchange of
any Security at the office of any Transfer Agent accompanied by a written
instrument of transfer or exchange in the form approved by the Issuer (it being
understood that, until notice to the contrary is given to holders of Securities,
the Issuer shall be deemed to have approved the form of instrument of transfer
or exchange, if any, printed on any Security), executed by the registered
holder, in person or by such holder's attorney thereunto duly authorized in
writing, such Security shall be transferred upon the register for the
Securities, and a new Security shall be authenticated and issued in the name of
the transferee.
(b) Transfer of Global Securities and Interests Therein. A global Security
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may not be transferred, in whole or in part, to any person other than the
Depositary or a nominee thereof, and no such transfer to any such other person
may be registered; provided that this clause shall not prohibit any transfer of
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a Security that is issued in exchange for a global Security but is not itself a
global Security. No transfer of a Security to any person shall be effective
under this Agreement or the Securities unless and until such Security has been
registered in the name of such person.
(c) Transfers of Restricted Definitive Securities. If a registered holder
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of Definitive Securities that bear or are required to bear the legends set forth
in the form of Security attached as Exhibit A hereto ("Restricted Definitive
Securities") wishes at any time to transfer such Restricted Definitive
Securities or to exchange such Restricted Definitive Securities, such
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exchange or transfer may be effected only in accordance with the provisions of
this Section 6(c). Upon the receipt by the Fiscal Agent or its affiliate, as
appropriate, as Transfer Agent, at its Corporate Trust Office in The City of New
York of (i) a Restricted Definitive Security accompanied by a written and
executed instrument of transfer or exchange as provided in Section 6(a) and (ii)
the following additional information and documents, as applicable:
(1) if such Restricted Definitive Security is owned by the holder thereof
and is being exchanged, without transfer, or if such Restricted Definitive
Security is being transferred pursuant to an exemption from registration in
accordance with Rule 144A, Rule 144 or Regulation S under the Act, a
certification from such holder to that effect, substantially in the form of
Exhibit B hereto; or
(2) if the Restricted Definitive Security being transferred or exchanged
contains a restrictive legend, certification to the effect that such
transfer or exchange is in accordance with the restrictions contained in
such legend, if required by the Fiscal Agent,
the Fiscal Agent shall register the transfer of such Restricted Definitive
Security or exchange such Restricted Definitive Security for an equal principal
amount of Restricted Definitive Securities of other authorized denominations.
To permit registrations of transfers and exchanges, the Issuer shall
execute and the Fiscal Agent (or an authenticating agent appointed pursuant to
Section 2) shall authenticate and deliver Definitive Securities at the Fiscal
Agent's or any Transfer Agent's request. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment by the
registered holder of a sum sufficient to cover any transfer tax or other
governmental charge payable in connection with any registration of transfer or
exchange.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, subject to the Payment
Restrictions, evidencing the same debt, and the applicable provisions of this
Agreement shall apply equally thereto, as the Securities surrendered upon such
registration of transfer or exchange.
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(d) Successive registrations and registrations of transfers and exchanges
as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the Security register. No service charge shall be
made to a registered holder for any registration of transfer or exchange of the
Securities, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith and any other
amounts required to be paid by the provisions of the Securities.
(e) Any Transfer Agent appointed pursuant to Section 2 hereof shall provide
to the Fiscal Agent such information as the Fiscal Agent may reasonably require
in connection with the delivery by such Transfer Agent of Securities upon
transfer or exchange of Securities.
(f) No Transfer Agent shall be required to make registrations of transfer
or exchange of Securities during any periods designated in the text of the
Securities as periods during which such registration of transfer or exchanges
need not be made.
(g) If Securities are issued upon the transfer, exchange or replacement of
Securities not bearing the legends required, as applicable, by the form of
Security attached as Exhibit A hereto (collectively, the "Legend"), the
Securities so issued shall not bear the Legend. If Securities are issued upon
the transfer, exchange or replacement of Securities bearing the Legend, or if a
request is made to remove the Legend on a Security, the Securities so issued
shall bear the Legend, or the Legend shall not be removed, as the case may be,
unless there is delivered to the Issuer such satisfactory evidence, which may
include an opinion of independent counsel reasonably acceptable to the Issuer,
as may be reasonably required by the Issuer that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under
the Act or that such Securities are not "restricted securities" within the
meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence,
the Fiscal Agent, at the direction of the Issuer, shall authenticate and deliver
a Security that does not bear the Legend or may remove the Legend, as the case
may be. The Issuer agrees to indemnify the Fiscal Agent for, and to hold it
harmless against, any loss, liability or expense, including the fees and
expenses of counsel, reasonably incurred, arising out of or in connection with
actions taken or omitted by the Fiscal Agent in
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reliance upon such legal opinion and the delivery of a Security that does not
bear a Legend.
(h) With the prior approval of the Commissioner, the Issuer and any person
that constitutes an affiliate of the Issuer within the meaning of the Act, may
at any time purchase Securities in the open market or otherwise at any price,
for its own account or the account of others. Any Security so purchased by the
Issuer or any such affiliate for its own account shall be promptly surrendered
to the Fiscal Agent for cancellation, together with written notice of the
approval of the Commissioner, as appropriate, and shall not thereafter be re-
issued or resold.
(i) The Securities may not be redeemed at the option of the Issuer or any
registered holder thereof.
7. Delivery of Certain Information.
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(a) Rule 144A Information. At any time when the Issuer is not subject to
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Section 13 or 15(d) of the Exchange Act, upon the request of a holder of a
Security or beneficial interest in a global Security, the Issuer shall promptly
furnish or cause to be furnished "Rule 144A Information" (as defined below) to
such holder, or to a prospective purchaser of such Security or interest
designated by such holder, in order to permit compliance by such holder with
Rule 144A under the Act in connection with the resale of such Security by such
holder. "Rule 144A Information" shall be such information as is specified
pursuant to paragraph (d)(4) of Rule 144A (or any successor provision thereto),
as such provisions (or successor provision) may be amended from time to time.
(b) Periodic Reports. The Issuer shall deliver (or shall cause the Fiscal
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Agent to deliver) to each holder of a Security, promptly after such items are
available, one copy of each annual report to policyholders of the Issuer. In
addition, upon the written request of a holder of a Security or beneficial
interest in a global Security, the Issuer shall promptly furnish or cause to be
furnished to such holder one copy of the annual and quarterly statutory-basis
financial statements of the Issuer as filed by the Issuer with the Massachusetts
Insurance Department.
8. Conditions of Fiscal Agent's Obligations.
----------------------------------------
The Fiscal Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Issuer agrees
and all of
-12-
which are applicable to the Securities and the holders from time to time
thereof:
(a) Compensation and Indemnity. The Fiscal Agent and its affiliate shall
--------------------------
be entitled to such compensation as shall be agreed with the Issuer for all
services rendered by them hereunder, and the Issuer agrees promptly to pay such
compensation and to reimburse the Fiscal Agent and its affiliate for the
reasonable out-of-pocket expenses (including reasonable counsel fees and
expenses) incurred by them in connection with or arising out of their services
hereunder, or the issuance of the Securities and their offering and sale. The
Issuer also agrees to indemnify the Fiscal Agent and its affiliate for, and to
hold them harmless against, any loss, damages, claim, liability or expense,
incurred without negligence or bad faith, arising out of or in connection with
their acting as Fiscal Agent or affiliate hereunder, as well as the reasonable
costs and expenses of defending against any claim of liability in the premises.
The obligations of the Issuer under this Section 8(a) shall survive payment of
all the Securities or the resignation or removal of the Fiscal Agent or its
affiliate. The Fiscal Agent or its affiliate shall promptly notify the Issuer
of any claim for which the Fiscal Agent or its affiliate may seek indemnity,
including costs and expenses of defending the relevant party against any claim
for liability arising from the exercise or performance of any of its powers or
duties hereunder. The Issuer shall not be obligated to pay for any settlement
of any such claim made without its consent.
(b) Agency. In acting under this Agreement and in connection with the
------
Securities, the Fiscal Agent and its affiliate are acting solely as agents of
the Issuer and do not assume any responsibility for the correctness of the
recitals in the Securities (except for the correctness of the statement in its
certificate of authentication thereon) or any obligation or relationship of
agency or trust, for or with any of the registered holders of the Securities,
except that all funds held by the Fiscal Agent or its affiliate for the payment
of principal of and any interest on the Securities, to the extent permitted by
the Payment Restrictions, shall be held in trust for such registered holders as
set forth herein and in the Securities; provided, however, that monies held in
-------- -------
respect of the Securities remaining unclaimed at the end of two years after such
principal and such interest shall have become payable in accordance with the
Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and
monies sufficient therefor shall have been duly made available for payment
shall, together with any interest made available for payment thereon, be repaid
to
-13-
the Issuer. Upon such repayment, the aforesaid trust with respect to the
Securities shall terminate and all liability of the Fiscal Agent and Paying
Agents with respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying Agent or Transfer
-----------------
Agent appointed by the Issuer pursuant to Section 2 hereof may consult with
their respective counsel or other independent counsel satisfactory to them and
to the Issuer, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by them
hereunder in good faith and without negligence and in accordance with such
opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or Transfer Agent
--------
appointed by the Issuer pursuant to Section 2 hereof each shall be protected and
shall incur no liability for or in respect of any action taken or thing suffered
by it in reliance upon any Security, notice, direction, consent, certificate,
affidavit, statement, or other paper or document believed by it, in good faith
and without negligence, to be genuine and to have been passed upon or signed by
the proper parties.
(e) Interest in Securities, etc. The Fiscal Agent, any Paying Agent or
----------------------------
Transfer Agent appointed by the Issuer pursuant to Section 2 hereof and their
respective officers, directors and employees may become the owners of, or
acquire any interest in, any Securities, with the same rights that they would
have if they were not the Fiscal Agent, such other Paying Agent or Transfer
Agent or such person, and may engage or be interested in any financial or other
transaction with the Issuer, and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Securities or other obligations of the
Issuer, as freely as if they were not the Fiscal Agent, such other Paying Agent
or Transfer Agent or such person.
(f) Non-Liability for Interest. Subject to any agreement between the
--------------------------
Issuer and the Fiscal Agent to the contrary, absent bad faith or negligence, the
Fiscal Agent and its affiliate shall not be under any liability for interest on
monies at any time received by them pursuant to any of the provisions of this
Agreement or the Securities.
(g) Certifications. Whenever in the administration of this Agreement the
--------------
Fiscal Agent shall deem it desirable that a matter of fact be proved or
established prior to taking, suffering or omitting any action hereunder, the
Fiscal Agent or its affiliate (unless other evidence be herein specifically
prescribed) may, in the absence of bad
-14-
faith or negligence on its part, rely upon a certificate signed by the
Authorized Officers and delivered to the Fiscal Agent as to such matter of fact.
(h) No Implied Obligations. The duties and obligations of the Fiscal
----------------------
Agent, its affiliate and the Issuer with respect to matters governed by this
Agreement shall be determined solely by the express provisions hereof, and
neither the Fiscal Agent, its affiliate nor the Issuer shall be liable except
for the performance of such duties and obligations as are specifically set forth
in this Agreement and the Securities, as applicable, and no implied covenants or
obligations shall be read into this Agreement or the Securities against the
Fiscal Agent, its affiliate or the Issuer. Nothing in this Agreement shall be
construed to require the Fiscal Agent or its affiliate to advance or expend its
own funds.
9. Resignation, Removal and Appointment of Successor.
-------------------------------------------------
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for the benefit of
-----------------------------
the registered holders from time to time of the Securities, that there shall at
all times be a Fiscal Agent hereunder which shall be a bank or trust company
organized and doing business under the laws of the United States of America or
the State of New York, in good standing and having, and acting either itself or
through an affiliate, through an established place of business in the Borough of
Manhattan, The City of New York, and authorized under such laws to exercise
corporate trust powers, until all the Securities authenticated and delivered
hereunder (i) shall have been delivered to the Fiscal Agent or its affiliate for
cancellation or (ii) have become payable, with the approval of the Commissioner,
and monies sufficient to pay the full principal of and any interest remaining
unpaid on the Securities shall have been made available for payment and either
paid or returned to the Issuer as provided herein and in such Securities.
(b) Resignation and Removal. The Fiscal Agent may at any time resign by
-----------------------
written notice to the Issuer of such intention on its part, specifying the date
on which its desired resignation shall become effective, provided that such date
shall not be less than 60 days from the date on which such notice is given,
unless the Issuer agrees to accept shorter notice. The Fiscal Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed on behalf of the Issuer and specifying such removal and the date when it
shall become effective. Notwithstanding the dates of effectiveness of
-15-
resignation or removal, as the case may be, to be specified in accordance with
the preceding sentences, such resignation or removal shall take effect only upon
the appointment by the Issuer, as hereinafter provided, of a successor Fiscal
Agent (which, to qualify as such, shall for all purposes hereunder be a bank or
trust company organized and doing business under the laws of the United States
of America or of the State of New York, in good standing and having and acting,
either itself or through an affiliate, through an established place of business
in the Borough of Manhattan, The City of New York, authorized under such laws to
exercise corporate trust powers and having a combined capital and surplus in
excess of $50,000,000) and the acceptance of such appointment by such successor
Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be
entitled to payment by the Issuer pursuant to Section 8 hereof of compensation
for services rendered and to reimbursement of reasonable out-of-pocket expenses
incurred hereunder.
(c) Successors. In case at any time the Fiscal Agent (or any Paying Agent
----------
if such Paying Agent is the only Paying Agent located in a place where, by the
terms of the Securities or this Agreement, the Issuer is required to maintain a
Paying Agent) shall resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary
petition in bankruptcy or make an assignment for the benefit of its creditors or
consent to the appointment of a receiver of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they severally mature, or if a receiver of it or of all or any substantial part
of its property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of applicable
receivership, bankruptcy, insolvency or other similar legislation, or if any
public officer shall take charge or control of it or of its property or affairs,
for the purpose of rehabilitation, conservation or liquidation, a successor
Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid, shall
be appointed by the Issuer by an instrument in writing, filed with the successor
Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal
Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of
a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by
such successor of such appointment, the Fiscal Agent or Paying Agent, as the
case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the
case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as
the case may be, shall have been so appointed by the Issuer and shall have
accepted appointment as hereinafter provided
-16-
within 60 days after such resignation, removal or disqualification, and, in the
case of such other Paying Agent, if such other Paying Agent is the only Paying
Agent located in a place where, by the terms of the Securities or this
Agreement, the Issuer is required to maintain a Paying Agent, then any
registered holder of a Security who has been a bona fide holder of a Security
for at least six months (which Security, in the case of such other Paying Agent,
is referred to in this sentence), on behalf of himself and all others similarly
situated, or the Fiscal Agent, may petition any court of competent jurisdiction
for the appointment of a successor fiscal or paying agent, as the case may be.
The Issuer shall give prompt written notice to each other Paying Agent of the
appointment of a successor Fiscal Agent.
(d) Acknowledgement. Any successor Fiscal Agent appointed hereunder shall
---------------
execute, acknowledge and deliver to its predecessor and to the Issuer an
instrument accepting such appointment hereunder, and thereupon such successor
Fiscal Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Fiscal Agent hereunder and all provisions hereof shall be binding on such
successor Fiscal Agent, and such predecessor, upon payment of its compensation
and reimbursement of its disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Fiscal Agent
shall be entitled to receive, all monies, securities, books, records or other
property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any bank or trust company into which the
---------------------------
Fiscal Agent hereunder may be merged, or resulting from any merger or
consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal
Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Fiscal Agent, provided that it shall be qualified as aforesaid,
shall be the successor Fiscal Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
10. Meetings and Amendments.
-----------------------
(a) Calling of Meeting, Notice and Quorum. A meeting of registered holders
-------------------------------------
of Securities may be called at any time and from time to time to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement or the Securities to be made, given or
taken by registered holders
-17-
of Securities or to modify, amend or supplement the terms of the Securities or
this Agreement as hereinafter provided, and subject to the requirement
hereinafter set forth that the Issuer and the Fiscal Agent may, only with the
prior written approval of the Commissioner, modify, amend or supplement this
Fiscal Agency Agreement or the terms of the Securities or give consents or
waivers or take other actions with respect thereto. The Fiscal Agent may at any
time call a meeting of holders of Securities for any such purpose to be held at
such time and at such place in the Borough of Manhattan, The City of New York as
the Fiscal Agent shall determine. Notice of every meeting of holders of
Securities, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given as
provided in the terms of the Securities, not less than 30 nor more than 60 days
prior to the date fixed for the meeting (provided that, in the case of any
--------
meeting to be reconvened after adjournment for lack of a quorum, such notice
shall be so given not less than 10 nor more than 60 days prior to the date fixed
for such meeting). In case at any time the Issuer or the registered holders of
at least 10% in aggregate principal amount of the Outstanding Securities (as
defined in subsection (d) of this Section) shall have requested the Fiscal Agent
to call a meeting of the registered holders of Securities for any such purpose,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, the Fiscal Agent shall call such meeting for such purposes
by giving notice thereof.
To be entitled to vote at any meeting of registered holders of Securities, a
person shall be a registered holder of Outstanding Securities or a person duly
appointed by an instrument in writing as proxy for such a registered holder.
The persons entitled to vote a majority in principal amount of the Outstanding
Securities shall constitute a quorum. At the reconvening of any meeting
adjourned for a lack of a quorum, the persons entitled to vote 25% in principal
amount of the Outstanding Securities shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. The Fiscal Agent
may make such reasonable and customary regulations consistent herewith as it
shall deem advisable for any meeting of registered holders of Securities with
respect to the proof of the appointment of proxies in respect of registered
holders of Securities, the record date for determining the registered holders of
Securities who are entitled to vote at such meeting (which date shall be
designated by the Fiscal Agent and set forth in the notice calling such meeting
hereinabove referred to and which shall be not less than 10 nor more than 60
days prior to such
-18-
meeting, provided that nothing in this paragraph shall be construed to render
--------
ineffective any action taken by registered holders of the requisite principal
amount of Outstanding Securities on the date such action is taken), the
adjournment and chairmanship of such meeting, the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
(b) Approval. (i) At any meeting of registered holders of
--------
Securities duly called and held as specified above, upon the affirmative vote,
in person or by proxy thereunto duly authorized in writing, of the registered
holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, or (ii) with the written consent of the registered
holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding, in each case (i) or (ii) the Issuer and the Fiscal
Agent may, with the prior written approval of the Commissioner, modify, amend or
supplement the terms of the Securities or this Agreement in any way, and the
holders of Securities may make, take or give any request, demand, authorization,
direction, notice, consent, waiver (including waiver of future compliance or
past failure to perform) or other action provided by this Agreement or the
Securities to be made, given or taken by holders of Securities; provided,
--------
however, that no such action, modification, amendment or supplement, however
effected, may, without the consent of the holder of each Security affected
thereby, (A) change the Scheduled Interest Payment Date (as defined in the
Securities) or stated maturity date of the principal of or any installment of
interest on any Security, (B) reduce the principal amount of any Security or the
interest rate thereon, (C) change the currency in which, or the required place
at which, payment with respect to interest or principal in respect of the
Securities is payable, (D) change the Issuer's obligations under Section 7(a)
hereof in any manner adverse to the interests of the registered holder of a
Security, (E) impair the right of a registered holder of a Security to institute
suit for the enforcement of any payment, if such payment is permitted under the
Payment Restrictions, on or with respect to any Security, (F) reduce the above-
stated percentage of the principal amount of Outstanding Securities the vote or
consent of the registered holders of which is necessary to modify, amend or
supplement this Agreement or the terms and conditions of the Securities or to
make, take or give any request, demand, authorization, direction, notice,
consent, waiver (including waiver of any future compliance or past
-19-
failure to perform) or other action provided hereby or thereby to be made, taken
or given, (G) reduce the percentage in aggregate principal amount of Outstanding
Securities that constitutes the quorum required at any meeting of registered
holders of Securities at which a resolution is adopted, (H) change the
restrictions on payment set forth in the Securities in a manner adverse to such
registered holder, or (I) change the provisions of Paragraph 10 of the
Securities in a manner adverse to such registered holder.
The Issuer and the Fiscal Agent may, with the prior written approval of the
Commissioner, without the vote or consent of any holder of Securities, amend
this Agreement or the Securities for the purpose of (a) adding to the covenants
of the Issuer for the benefit of the holders of Securities, or (b) surrendering
any right or power conferred upon the Issuer, or (c) securing the Securities or
(d) evidencing the succession of another corporation to the Issuer and the
assumption by such successor of the covenants and obligations of the Issuer
herein and in the Securities as permitted by this Agreement and the Securities,
or (e) modifying the restrictions on, and procedures for, resale and other
transfers of the Securities to the extent required by any change in applicable
law or regulation, or the interpretation thereof, or in practices relating to
the resale or transfer of restricted securities generally, or (f) accommodating
the issuance, if any, of Securities in book-entry or certificated form and
matters related thereto which do not adversely affect the interest of any
registered holder in any material respect, or (g) curing any ambiguity or
correcting or supplementing any defective provision contained herein or in the
Securities in a manner which does not adversely affect the interest of any
registered holder in any material respect, or (h) effecting any amendment which
the Issuer and the Fiscal Agent may determine is necessary or desirable and
which shall not adversely affect the interest of any registered holder.
It shall not be necessary for the vote or consent of the registered holders of
Securities to approve the particular form of any proposed modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action, but it shall be sufficient if such vote or
consent shall approve the substance thereof.
The Fiscal Agent may request an opinion of counsel to the effect that all
conditions contained herein with respect to any amendment or supplement entered
into hereunder have been satisfied or waived.
-20-
(c) Binding Nature of Amendments, Notices, Notations, etc. Any
------------------------------------------------------
instrument given by or on behalf of any registered holder of a Security in
connection with any consent to or vote for any such modification, amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action shall be irrevocable once given and shall be conclusive and
binding on all subsequent holders of such Security or any Security issued
directly or indirectly in exchange or substitution therefor or in lieu thereof.
Any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action taken, made or given in
accordance with Section 10(b) hereof shall be conclusive and binding on all
holders of Securities, whether or not they have given such consent or cast such
vote or were present at any meeting, and whether or not notation of such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action is made upon the Securities. Notice of
any modification or amendment of, supplement to, or request, demand,
authorization, direction, notice, consent, waiver or other action with respect
to the Securities or this Agreement (other than for purposes of curing any
ambiguity or of curing, correcting or supplementing any defective provision
hereof or thereof) shall be given to each registered holder of Securities
affected thereby by the Fiscal Agent, in all cases as provided in the
Securities; provided, however, that any failure to provide such notice with
--------
respect to any action taken in accordance with this Agreement shall not affect
the validity thereof.
Securities authenticated and delivered after the effectiveness
of any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may bear a notation in the
form approved by the Fiscal Agent and the Issuer as to any matter provided for
in such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action. New Securities modified to
conform, in the opinion of the Fiscal Agent and the Issuer, to any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action taken, made or given in accordance with
Section 10(b) hereof may be prepared by the Issuer, authenticated by the Fiscal
Agent and delivered in exchange for Outstanding Securities.
(d) "Outstanding" Defined. For purposes of the provisions of
----------------------
this Agreement and the Securities, any Security authenticated and delivered
pursuant to this Agreement shall, as of any date of determination, be deemed to
be "Outstanding", except:
------
-21-
(i) Securities theretofore cancelled by the Fiscal Agent or delivered
to the Fiscal Agent for cancellation;
(ii) Securities which have become payable, to the extent permitted
under the Payment Restrictions, at the Scheduled Maturity Date or
otherwise, and with respect to which, in each case, monies sufficient to
pay the principal thereof and any interest thereon shall have been paid;
and
(iii) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to this
Agreement;
provided, however, that in determining whether the registered holders of the
-------- -------
requisite principal amount of Outstanding Securities are present at a meeting of
registered holders of Securities for quorum purposes or have consented to or
voted in favor of any request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or supplement hereunder, Securities
owned directly or indirectly by the Issuer, or any affiliate of the Issuer,
shall be disregarded and deemed not to be Outstanding.
11. Governing Law.
-------------
THIS AGREEMENT AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE COMMISSIONER'S
EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS UNDER THE
SECURITIES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE COMMONWEALTH OF MASSACHUSETTS (OR, IF THE COMMISSIONER IS NOT AT THE TIME
THE COMMISSIONER OF INSURANCE OF THE COMMONWEALTH OF MASSACHUSETTS, THE LAW OF
SUCH OTHER JURISDICTION AS MAY ESTABLISH THE COMMISSIONER AS THE PRIMARY
REGULATOR OF THE ISSUER'S FINANCIAL CONDITION) AND THE PARTIES HERETO SHALL
SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO A
COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS. THE
FOREGOING CHOICE OF LAW SHALL NOT AFFECT THE CHOICE OF LAW PROVISIONS OF ANY
OTHER AGREEMENTS OR INSTRUMENTS OF THE ISSUER ENTERED INTO IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREBY.
12. No Implied Obligations.
----------------------
The obligations of the Issuer under this Agreement and the Securities
shall be without recourse to any
-22-
policyholder, director, officer or employee of the Issuer, and no such person
shall have any liability with respect thereto.
13. Notices.
-------
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing, shall specify this Agreement by name
and date and shall identify the Securities, and if sent to the Fiscal Agent
shall be delivered, transmitted by facsimile or telegraphed to it at 000 Xxxxxx
Xxxxxx, Mail Stop 45-02-15, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Corporate Trust
Division, telephone: (000) 000-0000, fax: (000) 000-0000 and if sent to the
Issuer shall be delivered, transmitted by facsimile (with recorded delivery or
certified mail, written receipt requested, to follow) or telegraphed to it at
000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Treasurer,
telephone: (000) 000-0000, fax: (000) 000-0000. The foregoing addresses for
notices or communications may be changed by written notice given by the
addressee to each party hereto, and the addressee's address shall be deemed
changed for all purposes from and after the giving of such notice.
If the Fiscal Agent shall receive any notice or demand addressed to
the Issuer by the holder of a Security, the Fiscal Agent shall promptly forward
such notice or demand to the Issuer.
14. Separability.
------------
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
15. Headings.
--------
The section headings herein are for convenience of reference only and
shall not affect the construction hereof.
16. Counterparts.
------------
This Agreement may be executed in one or more counterparts, and by
each party separately on a separate counterpart, and each such counterpart when
executed and delivered shall be deemed to be an original. Such counterparts
shall together constitute one and the same instrument.
-23-
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal
Agency Agreement as of the date first above written.
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
THE FIRST NATIONAL BANK
OF BOSTON
By: /s/ X. X. Xxxxxxxx
--------------------------------------------
Name: X. X. Xxxxxxxx
Title: Authorized Officer
Agreed:
BANCBOSTON TRUST COMPANY
OF NEW YORK
as the affiliate
of the Fiscal Agent
By: /s/ Xxxxxxxx X. XxXxxxxx
--------------------------------------------
Name: Xxxxxxxx X. XxXxxxxx
Title: President
-24-
EXHIBIT A
FORM OF SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT REFERRED TO
HEREINAFTER, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST
OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH
REGISTRATION PROVIDED BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR
PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IN EXCHANGE FOR THIS SECURITY OR ANY PORTION HEREOF IS REGISTERED IN THE
NAME OF [INSERT NAME OF NOMINEE OF DEPOSITARY] OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] (AND
ANY PAYMENT IS MADE TO [INSERT NAME OF NOMINEE OF DEPOSITARY] OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF
DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON OTHER THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [INSERT NAME OF NOMINEE OF
DEPOSITARY], HAS AN INTEREST HEREIN.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE FISCAL AGENCY AGREEMENT. THIS GLOBAL
SECURITY MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN
THE NAME OF ANY PERSON OTHER THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE
FISCAL AGENCY AGREEMENT, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(B) OF THE FISCAL
AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(B) OF THE FISCAL AGENCY
AGREEMENT.]
A-1
[INCLUDE IF SECURITY IS A GLOBAL OR DEFINITIVE SECURITY OR SECURITY ISSUED IN
EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(G) OF THE FISCAL AGENCY
AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)] -- THE HOLDER
OF THIS SECURITY AGREES FOR THE BENEFIT OF XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY THAT (A) THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) BY THE INITIAL INVESTOR (I) IN A MINIMUM PRINCIPAL AMOUNT
OF $250,000 TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (OR ANY SUCCESSOR PROVISION
THERETO, AND AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME) UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") IN A TRANSACTION IN ACCORDANCE
WITH RULE 144A, (II) IN AN OFFSHORE TRANSACTION IN A MINIMUM PRINCIPAL AMOUNT OF
$500,000 IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S (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 $500,000 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.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY THAT, IF THE HOLDER PROPOSES TO SELL OR TRANSFER THIS SECURITY
TO ANY EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED), THE HOLDER WILL COMPLY WITH THE
RESTRICTIONS SET FORTH IN PARAGRAPH 9 HEREOF.
A-2
PAYMENTS OF PRINCIPAL OF OR INTEREST ON THIS SECURITY MAY ONLY BE MADE WITH
THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE COMMONWEALTH OF
MASSACHUSETTS (OR SUCH OTHER GOVERNMENTAL OFFICIAL, BODY OR AUTHORITY AS MAY,
AFTER THE DATE OF ISSUE OF THE SECURITIES, BECOME THE PRIMARY REGULATOR OF THE
FINANCIAL CONDITION OF THE ISSUER UNDER APPLICABLE LAW, TOGETHER THE
"COMMISSIONER"), IF, IN THE COMMISSIONER'S JUDGMENT, THE FINANCIAL CONDITION OF
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY WARRANTS THE MAKING OF SUCH PAYMENT.
THERE ARE NO GUIDELINES OR INTERPRETATIONS AS TO THE EXTENT OF THE
COMMISSIONER'S DISCRETION IN DETERMINING WHETHER TO APPROVE THE MAKING OF SUCH
PAYMENTS.
A-3
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
7 3/8% Surplus Note scheduled to mature on February 15, 2024
CUSIP NO.:
----------
No. R- $
---- -----------
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a mutual life insurance company
organized under the laws of the Commonwealth of Massachusetts (herein called the
"Issuer"), for value received, hereby promises to pay, subject to the prior
written approval of the Commissioner of Insurance of the Commonwealth of
Massachusetts (or such other Governmental official body or authority as may,
after the date of initial issue of this security (or its predecessor), become
the primary regulator of the financial condition of the Issuer under applicable
law, together the "Commissioner"), to ______________________, or registered
assigns, the principal sum of ______________ United States dollars ($_________)
[INCLUDE IF SECURITY IS A global Security: or such other amount (not to exceed
__________ million dollars ($__________) when taken together with all of the
Issuer's 7 3/8% Surplus Notes scheduled to mature on February 15, 2024 issued
and outstanding in definitive certificated form or in the form of a global
Security) as may from time to time represent the principal amount of the
Issuer's 7 3/8% Surplus Notes scheduled to mature on February 15, 2024 in
respect of which beneficial interests are held through the Depositary in the
form of a global Security,] on February 15, 2024 (the "Scheduled Maturity
Date"), and to pay interest thereon, subject to the prior written approval of
the Commissioner, from February 25, 1994 or from the most recent Scheduled
Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, semi-annually in arrears on February 15 and August 15 in
each year, commencing August 15, 1994 (each a "Scheduled Interest Payment
Date"), at the rate of 7 3/8% per annum, until the principal hereof is paid or
duly provided for. The date upon which any state or federal agency obtains an
order or grants approval for the reorganization, rehabilitation, liquidation,
conservation or dissolution of the Issuer shall also be deemed to be the
Scheduled Maturity Date of this Security. As specified on the reverse hereof,
all payments of principal of or interest on this Security may be made only with
the prior written approval of the Commissioner. The interest so payable, and
punctually paid or duly provided for, on any Scheduled Interest Payment Date
shall be paid, in accordance with the terms of the Fiscal Agency Agreement
hereinafter referred to, to the person (the "registered holder") in whose name
A-4
this Security (or one or more predecessor Securities) is registered at the close
of business on the February 1 or August 1 (whether or not a business day), as
the case may be (each a "Regular Record Date"), next preceding such Scheduled
Interest Payment Date. Interest on the Securities shall be calculated on the
basis of a 360-day year of twelve 30-day months. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holder on such Regular Record Date and shall be paid to the person in
whose name this Security (or one or more predecessor Securities) is registered
at the close of business on a special record date for the payment of such
interest to be fixed by the Issuer, notice whereof shall be given to registered
holders of the Securities not less than 10 days prior to such special record
date.
Principal of this Security shall be payable against surrender hereof at the
corporate trust office of the Fiscal Agent or its affiliate hereinafter referred
to and at the offices of such other Paying Agents as the Issuer shall have
appointed pursuant to the Fiscal Agency Agreement. Payments of principal of the
Securities shall be made only against surrender of the Securities. Payments of
principal or interest on this Security may be made, in accordance with the
foregoing and subject to applicable laws and regulations, by dollar check mailed
on or before the Scheduled Interest Payment Date of such payment to the person
entitled thereto at such person's address appearing on the register of
Securities maintained by the Fiscal Agent or its affiliate pursuant to Section
6(a) of the Fiscal Agency Agreement. In the case of a registered holder of at
least $5,000,000 aggregate principal amount of Securities, payments of principal
or interest may be made by wire transfer to a dollar account maintained by the
payee with a bank if such registered holder so elects by giving notice to the
Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may
accept at its discretion) prior to the applicable Scheduled Interest Payment
Date or Scheduled Maturity Date hereof, of such election and of the account to
which payments are to be made. Unless such designation is revoked, any such
designation made by such registered holder with respect to such Securities shall
remain in effect with respect to any future payments with respect to such
Securities payable to such registered holder. The Issuer agrees that until this
Security has been delivered to the Fiscal Agent for cancellation, or monies
sufficient to pay the full principal of and interest remaining unpaid on this
Security have been made available for payment and either paid or returned to the
Issuer as provided herein, it will at all times maintain offices or agencies in
the Borough of Manhattan, The City of New York for the payment of the
A-5
principal of and interest on the Securities as herein provided.
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
This Security may be executed by the Issuer by manual or facsimile signatures,
and such signatures may be executed on separate counterparts.
Unless the certificate of authentication hereon has been executed by the
Fiscal Agent by manual signature, this Security shall not be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
Dated:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
A-6
This is one of the Securities referred to in the within-mentioned Fiscal
Agency Agreement.
THE FIRST NATIONAL BANK
OF BOSTON
----------------------------
as Fiscal Agent
By:
-------------------------
Authorized Signatory
A-7
FORM OF REVERSE
1. This Security is one of a duly authorized issue of 7 3/8% Surplus Notes
scheduled to mature on February 15, 2024 of the Issuer (herein called the
"Securities" or "Notes"), limited in aggregate principal amount to $450,000,000.
The Issuer and The First National Bank of Boston, as fiscal agent (the "Fiscal
Agent"), have entered into a Fiscal Agency Agreement, dated as of February __,
1994 (such instrument, as it may be duly amended from time to time, is herein
called the "Fiscal Agency Agreement"), which provides for the mechanism for
issuing the Securities and, inter alia, sets forth certain duties of the Fiscal
----- ----
Agent in connection therewith. As used herein, the term "Fiscal Agent" includes
any successor fiscal agent under the Fiscal Agency Agreement. Copies of the
Fiscal Agency Agreement are on file and available for inspection at the
corporate trust office of the Fiscal Agent or its affiliate in the Borough of
Manhattan, The City of New York. Registered holders of Securities are referred
to the Fiscal Agency Agreement for a statement of the terms thereof, including
those relating to transfer, payment, exchanges and certain other matters. The
Fiscal Agent or any Paying Agent shall also act as Transfer Agent and Securities
registrar. Terms used herein which are defined in the Fiscal Agency Agreement
but not otherwise defined herein shall have the meanings assigned to such terms
in the Fiscal Agency Agreement.
The Securities are direct and unsecured obligations of the Issuer and, subject
to the payment restrictions contained in paragraphs 4 and 10 hereof (the
"Payment Restrictions"), are scheduled to mature on February 15, 2024.
2. The Securities are issuable only in fully registered form without coupons.
Securities are issuable in minimum denominations of [$250,000] [$500,000] and
integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The City of New
York, a Transfer Agent where Securities may be registered or surrendered for
registration of transfer or exchange. The Issuer has initially appointed the
corporate trust office of the Fiscal Agent or its affiliate as its Transfer
Agent in the Borough of Manhattan, The City of New York. The Issuer shall cause
each Transfer Agent to act as a Securities registrar and shall cause to be kept
at the office of each Transfer Agent a register in
A-8
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Securities and registration of transfers
of Securities. The Issuer reserves the right to vary or terminate the
appointment of any Transfer Agent or to appoint additional or other Transfer
Agents or to approve any change in the office through which any Transfer Agent
acts, provided that there shall at all times be a Transfer Agent in the Borough
of Manhattan, The City of New York. The Issuer shall cause notice of any
resignation, termination or appointment of the Fiscal Agent or any Paying Agent
or Transfer Agent and of any change in the office through which any such Agent
shall act to be provided to registered holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal Agency
Agreement, the transfer of a Security is registrable on the aforementioned
register upon surrender of such Security at any Transfer Agent duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Issuer duly executed by, the registered holder thereof or its attorney duly
authorized in writing. Upon such surrender of this Security for registration of
transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities, dated the date of authentication thereof, of any authorized
denominations and of a like aggregate principal amount.
Subject to the restrictions set forth herein and in the Fiscal Agency
Agreement, at the option of the registered holder upon request confirmed in
writing, Securities may be exchanged for Securities of any authorized
denominations and aggregate principal amount upon surrender of the Securities to
be exchanged at the office of any Transfer Agent. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent or
its affiliate shall authenticate and deliver, the Securities which the
registered holder making the exchange is entitled to receive. Any registration
of transfer or exchange shall be effected upon the Issuer being satisfied with
the documents of title and identity of the person making the request and subject
to the restrictions set forth in the immediately following paragraph and such
reasonable regulations as the Issuer may from time to time agree with the Fiscal
Agent.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service
A-9
charge shall be made for any registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may
treat the person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice
to the contrary.
4. (a) Notwithstanding anything to the contrary set forth herein or in the
Fiscal Agency Agreement, any payment of principal of, interest on or any monies
owing with respect to this Security, whether at the Scheduled Interest Payment
Date or Scheduled Maturity Date specified herein or otherwise, may be made only
with the prior written approval of the Commissioner. The terms of the
Commissioner's authorization, dated February 14, 1994 for the issuance of the
Securities by the Issuer (the "Authorization") provided that such approval will
only be granted if, in the Commissioner's judgment, the financial condition of
the Issuer warrants the making of such payment. In addition, pursuant to the
Authorization, any payment of principal of or interest on the Securities may be
made only to the extent that at the time of such payment the Issuer's
"unassigned funds (surplus)" (which at the time of the initial issuance of this
Security (or its predecessor) was reflected on line 34 of the "Liabilities,
Surplus and Other Funds" page of the Company's annual and quarterly statements
filed with the Division of Insurance of the Commonwealth of Massachusetts)
reflects sufficient funds to cover the amount of such payment. If the
Commissioner does not approve the making of any payment of principal of or
interest on this Security on the Scheduled Interest Payment Date or Scheduled
Maturity Date thereof, as specified herein, the Scheduled Interest Payment Date
or Scheduled Maturity Date, as the case may be, shall be extended until such
time, if any, at which such conditions are met and such payment shall be made by
the Issuer on the Business Day (as hereinafter defined) following the Business
Day on which the Issuer shall have received the written approval of the
Commissioner to make such payment. Interest will continue to accrue on any such
unpaid principal through the actual date of payment at the rate of interest
stated on the face hereof. Interest will not accrue on interest with respect to
which the Scheduled Interest Payment Date has been extended, during the period
of such extension. If the Commissioner approves a payment
A-10
of principal of or interest on the Securities in an amount that is less than the
full amount of principal of and interest on the Securities then scheduled to be
paid in respect of the Securities, payment of such partial amount shall be made
pro rata among registered holders as their interests may appear.
--- ----
(b) Any payment of principal of or interest on any Security as to which the
written approval of the Commissioner has been obtained and which is not
punctually paid or duly provided for on the Scheduled Interest Payment Date or
Scheduled Maturity Date thereof, as set forth herein (such payment being
referred to as an "Unpaid Amount"), will forthwith cease to be payable to the
registered holder of this Security on the relevant regular record date
designated herein, and such Unpaid Amount will instead be payable to the
registered holder of this Security on a subsequent special record date. The
Issuer shall fix the special record date and payment date for the payment of any
Unpaid Amount. At least 15 days before the special record date, the Issuer
shall mail to each registered holder of the Securities and the Fiscal Agent a
notice that states the special record date, payment date and amount of interest
or principal to be paid. On the payment date set forth in such notice, subject
to the Payment Restrictions, the Paying Agent shall pay the amount of interest
or principal to be so paid to each registered holder of the Securities in the
manner set forth in Section 4(a) of the Fiscal Agency Agreement.
5. (a) For so long as the Fiscal Agent or its affiliate is acting as a
Paying Agent hereunder, the Issuer shall provide, subject to the Payment
Restrictions, to the Fiscal Agent in immediately available funds on or prior to
10:00 a.m., New York time, on each date on which a payment of principal of or
any interest on this Security is payable, as set forth herein, such amounts as
are necessary (with any amounts then held by the Fiscal Agent or its affiliate
and available for the purpose) to make such payment, and the Issuer hereby
authorizes and directs the Fiscal Agent or its affiliate from funds so provided
to it to make or cause to be made payment of the principal of and any interest,
as the case may be, on this Security as set forth herein and in the Fiscal
Agency Agreement. Payments of principal of or any interest on the Securities
may be made, in the case of a registered holder of at least $5,000,000 principal
amount of Securities, by wire transfer to a dollar account maintained by the
payee with a bank if such registered holder so elects by giving notice to the
Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may
accept at its discretion) prior to the date on which such payments are
A-11
scheduled to be made, of such election and of the account to which payments are
to be made. Unless such designation is revoked, any such designation made by
such registered holder with respect to such Securities shall remain in effect
with respect to any future payments with respect to such Securities payable to
such registered holder. The Issuer shall pay any reasonable administrative costs
in connection with making any such payments. The Fiscal Agent shall arrange
directly with any other Paying Agent who may have been appointed by the Issuer
pursuant to the provisions of Section 2 of the Fiscal Agency Agreement for the
payment from funds so paid by the Issuer of the principal of and any interest on
this Security. Any monies held in respect of this Security remaining unclaimed
at the end of two years after such principal and such interest shall have become
payable in accordance with the Payment Restrictions (whether at the Scheduled
Maturity Date or otherwise) and monies sufficient therefor shall have been duly
made available for payment shall, together with any interest made available for
payment thereon, be repaid to the Issuer and upon such repayment all liability
of the Fiscal Agent with respect thereto shall cease, without, however, limiting
in any way any obligation the Issuer may have to pay the principal of and
interest on this Security, subject to the Payment Restrictions.
(b) In any case where the Scheduled Interest Payment Date or Scheduled
Maturity Date of any Security shall be at any place of payment a day on which
banking institutions are authorized or obligated by law or executive order to
close, then payment of principal or interest need not be made on such date at
such place but may be made on the next succeeding day at such place which is not
a day on which banking institutions in the applicable jurisdiction are generally
authorized or obligated by law or executive order to close (a "Business Day"),
with the same force and effect as if made on the Scheduled Interest Payment Date
or Scheduled Maturity Date thereof, and no interest shall accrue for the period
after such date.
6. The Issuer shall pay all stamp and other duties, if any, which may be
imposed by the United States of America or any governmental entity or any
political subdivision thereof or taxing authority of or in the foregoing with
respect to the Fiscal Agency Agreement or the initial issuance of this Security.
Except as otherwise specifically provided in this Security, the Issuer shall not
be required to make any payment with respect to any tax, duty, assessment or
other governmental charge of whatever nature imposed or levied by any government
or any political subdivision or taxing authority thereof or therein.
A-12
7. For so long as any of the Securities remain Outstanding or any amount
remains unpaid on any of the Securities,
(a) Except with respect to transactions covered by Paragraph 8 hereof, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, material rights (charter and
statutory) and franchise; provided, however, that the Issuer shall not be
-------- -------
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer and that the Issuer has used its best efforts to not
disadvantage in any material respect the registered holders of the Securities,
or that not preserving such right or franchise is in the best interest of the
policyholders of the Issuer having considered the interests of the registered
holders of the Securities.
(b) The Issuer will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act of 1940, as amended
(the "Investment Company Act"), if such action would cause the Issuer to be in
violation of the Investment Company Act at any time prior to payment in full of
the Securities.
(c) The Issuer shall use its best efforts to obtain the approval of the
Commissioner for the payment by the Issuer of interest on and principal of the
Securities on the Scheduled Interest Payment Date or Scheduled Maturity Date
thereof, and, in the event any such approval has not been obtained for any such
payment at or prior to the Scheduled Interest Payment Date or Scheduled Maturity
Date thereof, as the case may be, to continue to use its best efforts to obtain
such approval promptly thereafter. Not less than 45 days prior to the Scheduled
Interest Payment Date or Scheduled Maturity Date thereof (excluding any such
Scheduled Maturity Date which arises as a result of the obtaining of an order or
the granting of approval for the reorganization, rehabilitation, liquidation,
conservation or dissolution of the Issuer), the Issuer will inform the
Commissioner that it seeks the Commissioner's approval to pay the full amount of
interest and principal scheduled to be paid on such date. In addition, the
Issuer shall notify or cause to be notified each registered holder and the
Fiscal Agent promptly following any Scheduled Interest Payment Date for interest
on or the Scheduled Maturity Date for principal of any Security in the event
that the Commissioner has disapproved the making of any such payment
A-13
on such Scheduled Interest Payment Date or such Scheduled Maturity Date and as a
result thereof the Issuer shall have failed to make any such payment on any such
Scheduled Interest Payment Date or such Scheduled Maturity Date.
8. For so long as any of the Securities remain Outstanding or any amounts
remain unpaid on any of the Securities, the Issuer may convert itself from a
mutual life insurance company into a stock life insurance company (such
conversion, a "demutualization"), merge or consolidate with or into any other
corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any person, firm or corporation, if (i) (A)
in the case of a merger or consolidation, the Issuer is the surviving
corporation or (B) in the case of a merger, consolidation or demutualization
where the Issuer is not the surviving corporation and in the case of any such
sale, conveyance, transfer or other disposition, the successor corporation is a
corporation organized and existing under the laws of the United States or a
State thereof and such corporation expressly assumes by supplemental agreement
all the obligations of the Issuer under the Securities and the Fiscal Agency
Agreement, (ii) at the time of any such demutualization, merger or
consolidation, or such sale, conveyance, transfer or other disposition, the
Issuer shall not have failed to make payment of interest on or principal of the
Securities after having received the Commissioner's prior approval to make such
payment and (iii) the Issuer has delivered to the Fiscal Agent an officer's
certificate stating that such demutualization, merger, consolidation, sale,
conveyance, transfer or other disposition complies with this paragraph and that
all conditions precedent herein provided for relating to such transaction have
been complied with. In the event of the assumption by a successor corporation
of the obligations of the Issuer as provided in clause (i)(B) of the immediately
preceding sentence, such successor corporation shall succeed to and be
substituted for the Issuer hereunder and under the Fiscal Agency Agreement and
all such obligations of the Issuer shall terminate.
9. No employee benefit plan within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
prohibited transaction provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), as to which the Issuer or any of its subsidiaries is a
party in interest or a disqualified person (each a "Plan"), and no person acting
on behalf of a Plan, may acquire this Security, unless the acquisition of the
Security is exempt under one or more of Prohibited Transaction exemptions 84-14,
90-1 or 91-38 (or any
A-14
amendment thereof) or another applicable exemption from the prohibitions under
Section 406 of ERISA and Section 4975 of the Code. The purchase by any person of
this Security shall constitute a representation by such Person to the Issuer and
the Fiscal Agent that such person either (i) is not a Plan or (ii) is a Plan,
and may acquire this Security under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
restrictions on purchases of the Securities set forth in this Paragraph 9 are in
addition to those otherwise set forth in Section 6 of the Fiscal Agency
Agreement and under applicable law.
10. (a) The Issuer agrees, and each registered holder by accepting a
Security agrees, that the indebtedness evidenced by the Securities is
subordinated in right of payment, to the extent and in the manner provided in
this paragraph 10, to the prior payment in full of all Indebtedness, Policy
Claims and Prior Claims (each as hereinafter defined).
(b) Upon any distribution to creditors of the Issuer in any reorganization,
rehabilitation, liquidation, conservation or dissolution proceeding relating to
the Issuer or its property, the holders of Indebtedness, the holders of Policy
Claims and the holders of Prior Claims will first be entitled to receive payment
in full of all amounts due or to become due with respect thereto before the
registered holders will be entitled to receive any payment in respect of the
principal of or interest on the Securities. If a payment of principal of or
interest on the Securities is approved in any such proceeding in an amount that
is less than the full amount of principal of and interest on the Securities then
scheduled to be paid in respect of the Securities, payment of such partial
amount shall be made pro rata among registered holders as their interests may
appear.
(c) If a distribution is made to registered holders that, because of this
paragraph 10, should not have been made to them, the registered holders 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.
(d) The Issuer shall promptly notify the Fiscal Agent and the Paying Agent
of any facts known to the Issuer that would cause a payment of principal of or
interest on the Securities to violate this paragraph 10.
(e) This paragraph 10 defines the relative rights of registered holders, on
the one hand, and holders of any
A-15
other claims, in accordance with Sections 180A through 180L of Chapter 175 of
the Massachusetts General Laws and any successor provisions, in each case as may
be amended from time to time (the "Liquidation Act"), on the other hand. Nothing
in this Security or the Fiscal Agency Agreement shall (i) impair, as between the
Issuer and registered holders, the obligation of the Issuer which is, subject to
the Payment Restrictions, absolute and unconditional to pay principal of and
interest on the Securities in accordance with their terms; (ii) affect the
relative rights of registered holders and creditors of the Issuer, other than
holders of Policy Claims, Indebtedness or Prior Claims; or (iii) prevent the
Fiscal Agent or any registered holder from exercising any available remedies
upon a breach by the Issuer of its obligations hereunder, subject to the rights
of holders of Policy Claims, Indebtedness or Prior Claims to receive
distributions otherwise payable to registered holders.
(f) No right of any registered holder of Policy Claims, Indebtedness or
Prior Claims to enforce the subordination of the indebtedness evidenced by the
Securities shall be impaired by any act or failure to act by the Issuer or by
its failure to comply with the terms of the Fiscal Agency Agreement.
(g) Each registered holder, by acceptance thereof, authorizes and directs
the Fiscal Agent on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this paragraph 10 and
appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i) all existing or
future indebtedness of the Issuer for borrowed money, (ii) all existing or
future indebtedness for borrowed money of other persons, the payment of which is
guaranteed by the Issuer, (iii) all existing or future obligations of the Issuer
under any agreement obligating the Issuer to cause another person to maintain a
minimum level of net worth, or otherwise to ensure the solvency of such person
and (iv) all other claims or amounts owed, to the extent that the payment of
principal of, interest on and any other amount due with respect to the
Securities is required by the Liquidation Act or otherwise by law to be
subordinated to the prior payment of any such claim or amount. Any indebtedness
of the Issuer which by its express terms is subordinated in right of payment to,
or ranks equally with, the Securities shall not constitute Indebtedness. In
addition, any future surplus notes or similar obligations of the Issuer which by
their terms rank
A-16
pari passu with, or are subordinate in right of payment to, the Securities
---- -----
shall not constitute Indebtedness.
As used herein, "Policy Claims" shall mean all existing or future claims of
policyholders, beneficiaries, and insureds arising from and within the coverage
of and not in excess of the applicable limits of any and all existing or future
policies, endorsements, riders and other contracts of insurance, annuity
contracts (including, without limitation, guaranteed investment contracts) and
funding agreements, issued, assumed or renewed by the Issuer on or prior to the
date hereof or hereafter created, all claims under separate account agreements
to the extent such claims are not fully discharged by the assets held by the
Issuer in the applicable separate accounts and all claims of the Massachusetts
Insurer's Insolvency Fund, the Massachusetts Life and Health Insurance Guaranty
Association, or any similar organization in another state against the Issuer.
As used herein, "Prior Claims" shall mean all other claims against the
Issuer which, pursuant to the Liquidation Act, have priority over claims with
respect to the Securities.
11. For so long as any of the Securities remain Outstanding or any amount
remains unpaid on any of the Securities, the Issuer shall, in accordance with
Rule 144A, comply with the terms of the agreements set forth in Section 7 of the
Fiscal Agency Agreement. The provisions of Section 7 of the Fiscal Agency
Agreement are hereby incorporated mutatis mutandis herein.
------- --------
12. In case this Security shall become mutilated, defaced, destroyed, lost
or stolen, the Issuer will execute and upon the Issuer's request the Fiscal
Agent or its affiliate shall authenticate and deliver a new Security, having a
number not contemporaneously outstanding, of like tenor (including the same date
of issuance) and equal principal amount, registered in the same manner, dated
the date of its authentication and bearing interest from the date to which
interest has been paid on this Security, in exchange and substitution for this
Security (upon surrender and cancellation thereof) or in lieu of and
substitution for this Security. In the case where this Security is destroyed,
lost or stolen, the applicant for a substituted Security shall furnish to the
Issuer and the Fiscal Agent such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss or
theft of this Security, the applicant shall also furnish to the Issuer
satisfactory evidence of the destruction, loss or theft of this Security and of
the
A-17
ownership thereof, provided, however, that if the registered holder hereof is,
-------- -------
in the judgment of the Issuer, an institution of recognized responsibility, such
registered holder's written agreement of indemnity shall be deemed to be
satisfactory for the issuance of a new Security in lieu of and substitution for
this Security. The Fiscal Agent or its affiliate shall authenticate any such
substituted Security and deliver the same only upon written request or
authorization of the Issuer. Upon the issuance of any substituted Security, the
Issuer may require the payment by the registered holder thereof of a sum
sufficient to cover fees and expenses connected therewith. In case this Security
has matured or is about to mature and shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except if this Security is mutilated or defaced)
upon compliance by the registered holder with the provisions of this Paragraph
12 as hereinabove set forth.
13. Section 10 of the Fiscal Agency Agreement, which Section is hereby
incorporated by reference herein, provides that, with certain exceptions as
therein provided and with the consent of the registered holders of a majority of
the principal amount of the Outstanding Securities present at a meeting duly
called pursuant thereto or by written consent of such percentage of the
principal amount of all Outstanding Securities, the Issuer and the Fiscal Agent
may, with the prior written approval of the Commissioner, modify, amend or
supplement the Fiscal Agency Agreement or the terms of the Securities or may,
with the prior written approval of the Commissioner, give consents or waivers or
take other actions with respect thereto. Any such modification, amendment,
supplement, consent, waiver or other action shall be conclusive and binding on
the registered holder of this Security and on all future registered holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation thereof
is made upon this Security. The Fiscal Agency Agreement and the terms of the
Securities may, with the prior written approval of the Commissioner, be modified
or amended by the Issuer and the Fiscal Agent, without the consent of any
registered holders of Securities, for the purpose of (a) adding to the covenants
of the Issuer for the benefit of the registered holders of Securities, or (b)
surrendering any right or power conferred upon the Issuer, or (c) securing the
Securities pursuant to the requirements hereof, thereof or otherwise, or (d)
evidencing the succession of another corporation to the Issuer and the
A-18
assumption by such successor of the covenants and obligations of the Issuer
herein and in the Fiscal Agency Agreement as permitted by the Securities and the
Fiscal Agency Agreement, or (e) modifying the restrictions on, and procedures
for, resale and other transfers of the Securities to the extent required by any
change in applicable law or regulation (or the interpretation thereof) or in
practices relating to the resale or transfer of restricted securities generally,
or (f) accommodating the issuance, if any, of Securities in book-entry or
certificated form and matters related thereto which do not adversely affect the
interest of any registered holder in any material respect, or (g) curing any
ambiguity or correcting or supplementing any defective provision contained
herein or in the Fiscal Agency Agreement in a manner which does not adversely
affect the interest of any registered holder in any material respect, or (h)
effecting any amendment which the Issuer and the Fiscal Agent may determine is
necessary or desirable and which shall not adversely affect the interest of any
registered holder, to all of which each registered holder of any Security, by
acceptance thereof, consents.
14. Registered holders of Securities may enforce the Fiscal Agency
Agreement or the Securities only in the manner set forth below.
(a) In the event that any state or federal agency shall obtain an order or
grant approval for the reorganization, rehabilitation, liquidation, conservation
or dissolution of the Issuer, the Securities will upon the obtaining of such an
order or the granting of such approval immediately mature in full without any
action on the part of the Fiscal Agent or any registered holder of the
Securities, with payment thereon being subject to the Payment Restrictions, and
any restrictions imposed as a consequence of, or pursuant to, such proceedings.
Notwithstanding any other provision of this Security or the Fiscal Agency
Agreement, in no event shall the Fiscal Agent or any registered holder of the
Securities be entitled to declare the Securities to immediately mature or
otherwise be immediately payable.
(b) In the event that the Commissioner approves in whole or in part a
payment of any interest on or principal of any Securities and the Issuer fails
to pay the full amount of such approved payment on the date such amount is
scheduled to be paid, such approved amount will be immediately payable on such
date without any action on the part of the Fiscal Agent or any registered holder
of Securities. In the event that the Issuer fails to perform any of its other
obligations hereunder or under the Fiscal Agency Agreement, each registered
holder of the
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Securities may pursue any available remedy to enforce the performance of any
provision of such Securities or the Fiscal Agency Agreement, provided, however,
--------
that such remedy shall in no event include the right to declare the Securities
immediately payable. A delay or omission by any registered holder in exercising
any right or remedy accruing as a result of the Issuer's failure to perform its
obligations hereunder or under the Fiscal Agency Agreement and the continuation
thereof shall not impair such right or remedy or constitute a waiver of or
acquiescence in such non-performance by the Issuer. To the extent permitted by
law, no remedy is exclusive of any other remedy and all remedies are cumulative.
(c) Notwithstanding any other provision of this Security or the Fiscal
Agency Agreement, the right of any registered holder of Securities to receive
payment of the principal of and interest on such registered holder's Securities
on or after the respective Scheduled Interest Payment Date or Scheduled Maturity
Date expressed in such Securities, or to bring suit for the enforcement of any
such payment on or after such respective Scheduled Interest Payment Date or
Scheduled Maturity Dates, in each case subject to such payment on such date
having received the written approval of the Commissioner pursuant to the Payment
Restrictions, is absolute and unconditional and shall not be impaired or
affected without the consent of the registered holder.
15. No reference herein to the Fiscal Agency Agreement and no provision of
this Security or of the Fiscal Agency Agreement shall alter or impair the
obligation of the Issuer, subject to the Payment Restrictions, to pay the
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
16. This Security shall be governed by, and construed in accordance with,
the law of the State of New York. The Commissioner's exercise of regulatory
authority, including approval of payments under this Security, shall be governed
by, and construed in accordance with, the law of the Commonwealth of
Massachusetts and the parties hereto shall submit any disputes related to the
exercise of such regulatory authority to a court of competent jurisdiction in
the Commonwealth of Massachusetts (or, if the Commissioner is not at the time
the Commissioner of Insurance of the Commonwealth of Massachusetts, the law of
such other jurisdiction as may establish the Commissioner as the primary
regulator of the Issuer's financial condition).
A-20
EXHIBIT B
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER OF
RESTRICTED DEFINITIVE SECURITY
(Transfers and exchanges pursuant to (S) 6(c)
of the Fiscal Agency Agreement)
The First National Bank of Boston
as Fiscal Agent
Blue Hills Office Park
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Xxxx Xxxxxxx Mutual Life Insurance Company,
7 3/8% Surplus Notes due February 15, 2024
(the "Securities")
--------------------------------------------
Reference is hereby made to the Fiscal Agency Agreement, dated as of
February 25, 1994 (the "Fiscal Agency Agreement"), between Xxxx Xxxxxxx Mutual
Life Insurance Company, as Issuer, and The First National Bank of Boston, as
Fiscal Agent. Capitalized terms used but not defined herein shall have the
meanings given to them in the Fiscal Agency Agreement.
This letter relates to $_________________ principal amount of
Restricted Definitive Securities held in definitive form by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that:*
[_] (i) such Securities are owned by the Transferor and are being
exchanged without transfer,
[_] (ii) such transfer has been effected pursuant to and in accordance
with Rule 144 under the United States Securities Act of 1933, as
amended (the "Securities Act"),
[_] (iii) such transfer has been effected pursuant to and in accordance
with Rule 144A under the Securities Act and, accordingly, the
Transferor does hereby further certify that the Securities are
being transferred to a person that the
------------------------
* Check applicable box.
B-1
Transferor reasonably believes is purchasing the Securities for
its own account, or for one or more accounts with respect to
which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of
the United States or any other jurisdiction; or
[_] (iv) such transfer has been effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act,
and, accordingly, the Transferor does hereby further certify
that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either:
(A) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the transferee was
outside the United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
B-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Purchasers. Terms used in
this certificate and not otherwise defined in the Fiscal Agency Agreement
have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: ,
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cc: Xxxx Xxxxxxx Mutual Life Insurance Company
B-3
