Exhibit 10.38
EXECUTION COPY
FISCAL AGENCY AGREEMENT
between
PHOENIX LIFE INSURANCE COMPANY
Issuer
and
THE BANK OF NEW YORK
Fiscal Agent
Dated as of December 15, 2004
$175,000,000
7.15% Surplus Notes scheduled to mature on December 15, 2034
TABLE OF CONTENTS
Page
1.
The
Securities.......................................................................................1
(a)
General.....................................................................................1
(b)
Forms of
Securities.........................................................................1
(c)
Book-Entry
Provisions.......................................................................2
(d)
Denominations...............................................................................3
2.
Fiscal Agent; Other
Agents...........................................................................3
3.
Authentication.......................................................................................4
4.
Payment and
Cancellation.............................................................................5
(a)
Payment.....................................................................................5
(b)
Cancellation................................................................................6
5.
Global
Securities....................................................................................6
6.
Registration, Transfer and Exchange of
Securities....................................................7
(a)
General.....................................................................................7
(b)
Transfers of Restricted Definitive
Securities...............................................8
(c)
Transfer of Global
Securities...............................................................8
(d)
Successive
Registrations....................................................................9
(e)
Information.................................................................................9
(f)
Suspension..................................................................................9
(g)
Legends.....................................................................................9
7.
Optional
Redemption..................................................................................9
(a)
Redemption
Price............................................................................9
(b)
Selection of Securities to be
Redeemed.....................................................10
(c)
Notice of Redemption; Effect of
Notice.....................................................10
(d)
Securities Redeemed in
Part................................................................10
8.
Delivery of Certain
Information.....................................................................10
(a)
Rule 144A
Information......................................................................10
(b)
Periodic
Reports...........................................................................11
9.
Conditions of Fiscal Agent's
Obligations............................................................11
(a)
Compensation and
Indemnity.................................................................11
(b)
Agency.....................................................................................11
(c)
Advice of
Counsel..........................................................................12
(d)
Issuer
Order...............................................................................12
(e)
No
Investigation...........................................................................12
(f)
Not Responsible for Recitals or Issuance of
Securities.....................................12
i
(g)
Reliance...................................................................................12
(h)
Interest in Securities,
Etc................................................................12
(i)
Non-Liability for
Interest.................................................................13
(j)
Certifications.............................................................................13
(k)
No Implied
Obligations.....................................................................13
(l)
Force
Majeure..............................................................................13
(m)
No Special, Indirect, Punitive or Consequential
Losses.....................................13
(n)
Agents and
Attorneys.......................................................................13
(o)
Authorized
Officers........................................................................13
10.
Resignation and Appointment of
Successor............................................................14
(a)
Fiscal
Agent...............................................................................14
(b)
Resignation................................................................................14
(c)
Successors.................................................................................14
(d)
Acknowledgement............................................................................15
(e)
Merger, Consolidation,
Etc.................................................................15
11.
Meetings and
Amendments.............................................................................15
(a)
Calling of Meeting, Notice and
Quorum......................................................15
(b)
Approval...................................................................................16
(c)
Binding Nature of Amendments, Notices, Notations,
Etc......................................18
(d)
"Outstanding"
Defined......................................................................18
12.
Governing
Law.......................................................................................19
13.
Waiver of Jury
Trial................................................................................19
14.
Notices.............................................................................................19
15.
Separability........................................................................................20
16.
Headings............................................................................................20
17.
Counterparts........................................................................................20
EXHIBIT A
FORM OF RULE 144A GLOBAL
SECURITY.........................................................A-1
EXHIBIT B-1
FORM OF PERMANENT REGULATION S GLOBAL
SECURITY..........................................B-1-1
EXHIBIT B-2
FORM OF TEMPORARY REGULATION S GLOBAL
SECURITY..........................................B-2-1
EXHIBIT C
FORM OF DEFINITIVE
SECURITY...............................................................C-1
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER OF RESTRICTED
SECURITY..............D-1
ii
FISCAL AGENCY AGREEMENT, dated as of December 15, 2004 (this
"Agreement"), between PHOENIX
LIFE INSURANCE COMPANY, a stock life insurance company organized
under the laws of the State of New York (the
"Issuer"), having its principal office at One American Row,
Hartford, Connecticut 06102, and THE BANK OF NEW
YORK, a New York banking corporation, as Fiscal Agent (together
with any successor Fiscal Agent hereunder, the
"Fiscal Agent"). The Exhibits attached hereto shall be deemed to be
a part of this Agreement.
1.
The Securities
.
(a)
General
. This Agreement is made in respect of $175,000,000 principal
amount of 7.15%
Surplus Notes scheduled to mature on December 15, 2034 (the "Notes"
or the "Securities"). Claims based upon the
Securities will rank below all Indebtedness, Policy Claims and
Other Creditor Claims (each as hereinafter
defined), in accordance with Section 7435 of the New York Insurance
Law (together with any successor provision,
and as may be hereafter amended from time to time, "Section 7435").
The payment by the Issuer of principal of,
interest on or Redemption Amount (as defined in Paragraph 4 of the
Securities) with respect to the Securities
shall be conditioned upon the payment restrictions set forth in
Paragraphs 5 and 11 of the Securities (the
"Payment Restrictions"). The Notes are scheduled to mature on
December 15, 2034 (such date, the "Scheduled
Maturity Date"). Any reference herein to the term "Scheduled
Maturity Date" or other date for the payment of
principal of the Notes shall include the date upon which any state
or federal agency obtains an order or grants
approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer.
(b)
Forms of Securities
. The Securities are being offered and sold by the Issuer pursuant
to a Purchase Agreement, dated December 10, 2004 (as it may be
amended, the "Purchase Agreement"), between the
Issuer and the Purchasers named therein (the "Purchasers").
(i)
Securities offered and sold in reliance on Rule 144A ("Rule 144A")
under the
Securities Act of 1933, as amended (the "Act") pursuant to the
Purchase Agreement shall be issued in the form
of one or more global notes (the "Rule 144A Global Securities") in
definitive, fully registered form without
interest coupons, substantially in the form of Exhibit A hereto,
with such applicable legends as are provided
for in Exhibit A.
(ii)
Securities offered and sold in reliance on Regulation S under the
Act ("Regulation S")
pursuant to the Purchase Agreement shall be issued initially in the
form of one or more temporary global notes
in definitive, fully registered form without interest coupons,
substantially in the form of Exhibit B-2 hereto,
with such applicable legends as are provided for in Exhibit B-2
(the "Temporary Regulation S Global
Securities"). Each of the Temporary Regulation S Global Securities
shall be exchangeable under the conditions
set forth in Section 5(e) below for one or more permanent global
notes in registered form without interest
coupons, substantially in the form of Exhibit B-1 hereto, with such
applicable legends as are provided for in
Exhibit B-1 (the "Permanent Regulation S Global Securities" and,
together with the Temporary Regulation S
Global Securities and the Rule 144A Global Securities, the "Global
Securities").
1
(iii) Securities (other than Global Securities) offered and sold
pursuant to the Purchase
Agreement to institutional investors that are "accredited
investors," within the meaning of Rule 501(a)(1),
(2), (3) or (7), or, if the equity owners thereof all meet one or
more of the foregoing criteria, Rule
501(a)(8), under the Act ("Accredited Investors") and Global
Securities which are hereinafter exchanged in
whole or in part for Notes in definitive form pursuant to Section
5(a) shall be issued in definitive, fully
registered form without interest coupons, substantially in the form
of Exhibit C attached hereto, with such
applicable legends as are provided for in Exhibit C ("Definitive
Securities"). Upon transfer of any Definitive
Security, registration of such transfer shall be effected in
accordance with Section 6 hereof.
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 provided
in Section 5(b). Each Global Security and each Definitive Security
shall be executed manually or by facsimile
on behalf of the Issuer by any two of its Chairman of the Board,
President, Chief Financial Officer, Executive
Vice Presidents, Senior Vice Presidents and Secretary (the
"Authorized Officers"), notwithstanding that such
officers, or any of them, shall have ceased, for any reason, to
hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of any such Security. The Securities
also may have such (i) additional provisions, omissions, variations
or substitutions as are not inconsistent
with the provisions of this Agreement and (ii) 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, as conclusively evidenced by
their proper execution of such Securities.
(c)
Book-Entry Provisions
. This Section 1(c) shall apply to all Global Securities.
Each Global Security shall be registered in the name of a nominee
of The Depository Trust
Company (the "Depositary") and deposited with the Fiscal Agent, at
its New York office, as custodian for the
Depositary, duly executed by the Issuer and authenticated by the
Fiscal Agent as hereinafter provided and shall
bear legends substantially to the following effect:
"Unless this Security is presented by an authorized representative
of The
Depositary Trust Company ("DTC") 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 Cede
& Co. or in
such other name as is requested by an authorized representative of
DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN DTC OR A NOMINEE
THEREOF IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest
herein."
2
"This Security is a Global Security within the meaning of the
Fiscal Agency
Agreement referred to hereinafter. This Global Security may not be
exchanged, in
whole or in part, for a Security registered in the name of any
person other than
DTC or a nominee thereof, except in the limited circumstances set
forth in Section
5 of the Fiscal Agency Agreement, and may not be transferred, in
whole or in part,
except in accordance with the restrictions set forth in Section
6(c) of the Fiscal
Agency Agreement."
Neither any members of, or participants in, the Depositary ("Agent
Members") nor any other
persons on whose behalf Agent Members may act shall have any rights
under this Fiscal Agency Agreement with
respect to any Global Security registered in the name of the
Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Issuer, the
Fiscal Agent and any agent of the Issuer or the Fiscal Agent as the
absolute owner and holder of such Global
Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer,
the Fiscal Agent or any agent of the Issuer or the Fiscal Agent
from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or
impair, as between the Depositary, its Agent Members and any other
person on whose behalf an Agent Member may
act, the operation of customary practices of such persons governing
the exercise of the rights of a holder of
any Security.
(d)
Denominations
. The Securities and beneficial interests in Securities shall be
issuable:
(i) in the case of Securities offered and sold to the Initial
Purchasers and subsequently transferred in
reliance on Rule 144A, in minimum denominations of $10,000 and any
amount in excess thereof that is an integral
multiple of $1,000; (ii) in the case of Securities offered and sold
to the Initial Purchasers and subsequently
transferred in reliance on Regulation S, in minimum denominations
of $10,000 and any amount in excess thereof
that is an integral multiple of $1,000; and (iii) in the case of
Securities offered and sold to the Initial
Purchasers and subsequently transferred to Accredited Investors, in
minimum denominations of $100,000 and any
amount in excess thereof that is an integral multiple of $1,000.
2.
Fiscal Agent; Other Agents
.
The Issuer hereby appoints The Bank of New York, acting through its
corporate trust office at
101 Barclay Street, Floor 8 West, New York, New York 10286 (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
Bank of New York hereby accepts such appointment. The Bank of New
York, and any successor or successors as such
fiscal agent qualified and appointed in accordance with Section 10
hereof, are herein called the "Fiscal
Agent." The Fiscal Agent shall have the powers and authority
granted to and conferred upon it in the Securities
and hereby and such further powers and authority to act on behalf
of the Issuer as may be mutually agreed upon
by the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a
copy of this Agreement available for
inspection during normal business hours at its Corporate Trust
Office. The Fiscal Agent or any Paying Agent (as
defined below) shall also act as Transfer Agent (as defined below).
All of the terms and provisions with
respect to such powers and authority contained in the Securities
are subject to and governed by the terms and
provisions hereof.
3
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, interest
on and Redemption Amount with respect to the Securities, and one or
more agents (a "Transfer Agent" or
"Transfer Agents") for the transfer and exchange of Securities, at
such place or places as the Issuer may
determine;
provided
,
however
, that the Issuer shall at all times maintain a Paying Agent and
Transfer Agent in
the Borough of Manhattan, The City of New York (which Paying Agent
and Transfer Agent may be the Fiscal Agent).
The Issuer hereby initially appoints the Fiscal Agent at its
Corporate Trust Office as principal Paying Agent,
Transfer Agent and authenticating agent, and the Fiscal Agent
hereby accepts such appointments. 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 and as shall be reasonably
satisfactory to such Transfer Agent, 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 of the country or countries in which
such Paying Agent or Transfer Agent may act in that capacity, and
will notify the Fiscal Agent of the
resignation or termination of any such Paying Agent or Transfer
Agent. Subject to the provisions of Section
10(c) hereof, the Issuer may vary or terminate the appointment of
any such Paying Agent or Transfer Agent at
any time and from time to time upon giving not less than 90 days'
notice to such Paying Agent or Transfer
Agent, as the case may be, and to the Fiscal Agent. The Issuer
shall cause notice of any resignation,
termination or appointment of the Fiscal Agent or any Paying Agent
or Transfer Agent and of any change in the
office through which any such Agent will act to be provided to
holders of Securities.
3.
Authentication
.
The Fiscal Agent is authorized, upon receipt of Securities duly
executed on behalf of the
Issuer for the purposes of the original issuance of Securities, to
authenticate said Securities in an aggregate
principal amount not in excess of $175,000,000 and deliver said
Securities in accordance with the written order
or orders of the Issuer signed on its behalf by an Authorized
Officer, and thereafter the Fiscal Agent is
authorized to authenticate and make available for delivery
Securities in accordance with the provisions therein
and hereinafter set forth.
The Fiscal Agent shall have the right to decline to authenticate
and make available for
delivery any Securities under this Section if the Fiscal Agent,
being advised by counsel, determines that such
action may not lawfully be taken or if the Fiscal Agent in good
faith shall determine that such action would
expose the Fiscal Agent to personal liability to existing Holders.
The Fiscal Agent may, with the written consent of the Issuer,
appoint by an instrument or
instruments in writing one or more agents (which may include
itself) for the authentication of the Securities
and, with such consent, vary or terminate any such appointment upon
written notice and approve any change in
the office through which any authenticating agent acts. The Issuer
(by written notice to the Fiscal Agent and
the authenticating agent whose appointment is to be terminated) may
also terminate any such appointment at any
time. The Fiscal Agent hereby agrees to obtain written acceptances
from the entities concerned (in form and
substance satisfactory to the Issuer) of such appointments. In its
acceptance of such
4
appointment, each such agent shall agree to act as an
authenticating agent pursuant to the terms and conditions
of this Agreement.
4.
Payment and Cancellation
.
(a)
Payment
. For so long as the Fiscal Agent is acting as a Paying Agent
hereunder, the
Issuer, subject to the Payment Restrictions, shall provide to the
Fiscal Agent, in immediately available funds
on or prior to 10:00 a.m., New York time, on each date on which a
payment of principal of, interest on or
Redemption Amount with respect to the Securities shall be payable,
as set forth in the text of the Securities,
such amount, in U.S. dollars, as is necessary (along with any
amounts in immediately available funds previously
provided to and then held by the Fiscal Agent and available for the
purpose) to make such payment, and the
Issuer hereby authorizes and directs the Fiscal Agent from funds so
provided to it to make or cause to be made
payment of the principal of, interest on and Redemption Amount with
respect to the Securities (as the case may
be) in the manner, at the times and for the purposes set forth
herein and in the text of said Securities;
provided
, that (1) any permitted payment of interest on the Securities may
be made by check mailed to the
persons (the "registered owners") in whose names such Securities
are registered on the register maintained
pursuant to Section 6 hereof at the close of business on the record
dates designated in the text of the
Securities and (2) the Issuer will not provide any such funds to
the Fiscal Agent prior to such time as the
relevant payment of principal, interest or Redemption Amount is
approved by the Superintendent of Insurance of
the State of New York (the "Superintendent"). Principal of and
Redemption Amount with respect to the Securities
shall be payable against surrender thereof at the corporate trust
office of the Fiscal Agent and at the offices
of such other paying agents as the Issuer shall have appointed
pursuant to this Agreement. Any permitted
payment of principal of, interest on or Redemption Amount with
respect to the Securities may be made by check.
Notwithstanding the foregoing, permitted payments of principal of,
interest on or Redemption Amount with
respect to the Securities shall be made, in the case of a
registered owner of at least $5,000,000 aggregate
principal amount of Securities, by wire transfer to an account
maintained by the payee with a bank in the
United States as specified in the text of the Securities if such
registered owner so elects by giving notice to
the Fiscal Agent, not less than 15 days (or such fewer days as the
Fiscal Agent may accept at its discretion)
prior to the date on which such payments are scheduled to be made,
of such election and of the account to which
payment is to be made. Unless such designation is revoked, any such
designation made by such holder with
respect to such Securities shall remain in effect with respect to
any future payments with respect to such
Securities payable to such holder. The Issuer shall pay any
reasonable administrative costs in connection with
making any such payments. The Fiscal Agent shall arrange directly
with any other Paying Agent who may have been
appointed by the Issuer pursuant to the provisions of Section 2
hereof for the payment, subject to the Payment
Restrictions, from funds so paid by the Issuer of the principal of,
interest on and Redemption Amount with
respect to the Securities in the manner, at the times and for the
purposes set forth herein and in the text of
said Securities. Notwithstanding the foregoing, the Issuer may
provide directly to a Paying Agent funds for the
payment, subject to the Payment Restrictions, of the principal
thereof, interest payable thereon and Redemption
Amount with respect thereto 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
9(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.
5
Payments of principal of, interest on and Redemption Amount with
respect to the Securities
shall be made in the manner set forth in the Securities, including
the Payment Restrictions set forth therein.
(b)
Cancellation
. All Securities delivered to the Fiscal Agent (or any other agent
appointed by the Issuer pursuant to Section 2 hereof) for payment,
registration of transfer or exchange as
provided herein or in the Securities shall be marked "cancelled"
and, in the case of any other such agent,
forwarded to the Fiscal Agent. All cancelled Securities held by the
Fiscal Agent shall be disposed of by
returning such cancelled Securities to the Issuer in accordance
with the Fiscal Agent's standard procedures or
as directed in writing by the Issuer;
provided
,
however
, that the Fiscal Agent shall not be required to destroy
such Securities.
5.
Global Securities
.
(a)
Notwithstanding any other provisions of this Agreement or the
Securities, a Global
Security shall not be exchanged in whole or in part for a Security
registered in the name of any person other
than the Depositary or one or more nominees thereof;
provided
, that a Global Security may also be exchanged for
Securities registered in the names of any person designated by the
Depositary in the event that (i) the
Depositary has notified the Issuer that it is unwilling or unable
to continue as Depositary for such Global
Security or such Depositary has ceased to be a "clearing agency"
registered under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), (ii) an event described
in Paragraph 15(a) or the first sentence of
Paragraph 15(b) of the Securities has occurred and is continuing
with respect to the Securities or (iii) a
request for certificates has been made upon 60 days' prior written
notice given to the Fiscal Agent in
accordance with the Depositary's customary procedures and a copy of
such notice has been received by the Issuer
from the Fiscal Agent. 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; and
provided
,
further
, that the Temporary
Global Securities shall not be exchanged for Securities except in
accordance with Section 5(e) hereof. Any
Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security;
provided
,
that any such Security so issued that is registered in the name of
a person other than the Depositary or a
nominee thereof shall not be a Global Security.
(b)
Securities issued in exchange for a Global Security or any portion
thereof in
accordance with Section 5(a) shall be issued in definitive, fully
registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such
Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for
herein, including, except as otherwise provided by
Section 6(g), the legend regarding transfer restrictions set forth
in the form of Security attached hereto as
Exhibit C (in the case of a Restricted Definitive Security (as
defined below) issued in exchange for a Global
Security or portion thereof) or set forth in the form of Security
attached hereto as Exhibit A or B-1 (in the
case of a Global Security issued in exchange for a Rule 144A Global
Security or portion thereof, a Temporary
Global Security or portion thereof (
provided
, that Temporary Regulation S Global Securities shall not be
exchanged for Securities except in accordance with Section 5(e)
hereof) or a Permanent Regulation S Global
Security or portion thereof, as applicable). Any
6
Global Security to be exchanged in whole shall be surrendered by
the Depositary to the Transfer Agent located
in the Borough of Manhattan, The City of New York, to be so
exchanged. With regard to any Global Security to be
exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Fiscal Agent is
acting as custodian for the Depositary or its nominee with respect
to such Global Security, the principal
amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Fiscal Agent.
Upon any such surrender or adjustment, the
Fiscal Agent shall authenticate and make available for delivery the
Security issuable on such exchange to or
upon the order of the Depositary or an authorized representative
thereof.
(c)
Subject to the provisions of Section 1(c) above, the registered
holder may grant
proxies and otherwise authorize any person, including Agent Members
and persons that may hold interests through
Agent Members, to take any action which a holder is entitled to
take under this Fiscal Agency Agreement or the
Securities.
(d)
In the event of the occurrence of any of the events specified in
paragraph (a) of this
Section 5, the Issuer will promptly make available to the Fiscal
Agent a reasonable supply of certificated
Securities in definitive, fully registered form without interest
coupons.
(e)
The Temporary Global Securities will be held only through Euroclear
Bank S.A./N.V., as
operator of the Euroclear system or Clearstream Banking, S.A., as
participants in the Depositary and any
purchaser of Notes in a sale made in reliance on Regulation S may
not sell or offer to sell such Notes prior to
the expiration of the 40-day distribution compliance period (within
the meaning of Rule 903(b)(3) of Regulation
S) (the "Distribution Compliance Period") within the United States
or to a U.S. person or for the account or
benefit of a U.S. person within the meaning of Regulation S (other
than the Purchasers) unless the Notes are
registered under the Act or an exemption from registration pursuant
to the Act is available. Promptly following
the expiration of the Distribution Compliance Period, the Temporary
Regulation S Global Securities will be
exchanged by the Fiscal Agent for Permanent Regulation S Global
Securities in identical aggregate face amount
in accordance with Regulation S. Simultaneously with the
authentication of the Permanent Regulation S Global
Securities, the Fiscal Agent shall cancel the Temporary Regulation
S Global Securities. The Permanent
Regulation S Global Securities will be deposited with the Fiscal
Agent as custodian for the Depositary and will
be registered in the name of the Depositary or a nominee thereof.
6.
Registration, Transfer and Exchange of Securities
.
(a)
General
. The Fiscal Agent, as agent of the Issuer for this purpose, shall
maintain at
its Corporate Trust Office in the Borough of Manhattan, The City of
New York, a register of Securities for the
registration of Securities and the transfers and exchanges thereof.
Subject to the provisions of this Section
6, upon presentation for transfer or exchange of any Security at
the office of any Transfer Agent accompanied
by a written instrument of transfer or exchange in the form
approved by the Issuer (it being understood that,
until notice to the contrary is given to holders of Securities, the
Issuer shall be deemed to have approved the
form of instrument of transfer or exchange, if any, printed on any
Security), executed by the registered
holder, in person or by such holder's attorney thereunto duly
authorized in writing, such Security shall be
transferred upon the register for the Securities, and a new
Security shall be authenticated
7
and issued in the of the transferee. No transfer of a Security to
any person shall be effective unless and
until such Security has been registered in the name of such person.
To permit registrations of transfers and exchanges, the Issuer
shall execute and the Fiscal
Agent (or an authenticating agent appointed pursuant to Section 2
hereof) shall authenticate and make available
for delivery 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 or the Fiscal Agent may require
payment of a sum sufficient to cover any transfer tax or other
governmental charge payable in connection with
any registration of transfer or exchange and any other amounts, if
any, required to be paid by the provisions
of the Securities in connection with a transfer or exchange
thereof.
All Securities issued upon any registration of transfer or exchange
of Securities shall be
the valid obligations of the Issuer, subject to the Payment
Restrictions, evidencing the same debt, and the
applicable provisions of this Fiscal Agency Agreement shall apply
equally thereto, as the Securities
surrendered upon such registration of transfer or exchange.
(b)
Transfers of Restricted Definitive Securities
. If a holder of Definitive Securities
that bear or are required to bear the legends set forth in the form
of Security attached as Exhibit C hereto
("Restricted Definitive Securities") wishes at any time to transfer
such Restricted Definitive Securities or to
exchange such Restricted Definitive Securities, such exchange or
transfer may be effected only in accordance
with the provisions of this Section 6(b). Upon the receipt by the
Fiscal Agent, as Transfer Agent, at its
office in The City of New York of (i) a Restricted Definitive
Security accompanied by a written and executed
instrument of transfer or exchange and payment for any tax or
charge as provided in Section 6(a) hereof 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, or pursuant to another available exemption from registration
under the Act, a certification from
such holder to that effect, substantially in the form of Exhibit D
hereto, and an opinion or counsel,
satisfactory in form and substance to the Fiscal Agent and the
Issuer, to the effect that such
transfer may be effected without registration under the Act; and
(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.
(c)
Transfer of Global Securities
. A Global Security may not be transferred, in whole or in
part, to any person other than the Depositary or a nominee thereof,
and no such
8
transfer to any such other person may be registered;
provided
, that this paragraph (c) shall not prohibit any
transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security.
(d)
Successive Registrations
. Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired,
and each such registration shall be noted on
the Security register.
(e)
Information
. Any Transfer Agent appointed pursuant to Section 2 hereof shall
provide to
the Fiscal Agent such information as the Fiscal Agent may
reasonably require in connection with the delivery by
such Transfer Agent of Securities upon transfer or exchange of
Securities.
(f)
Suspension
. No Transfer Agent shall be required to make registrations of
transfer or
exchange of Securities during any periods designated in the text of
the Securities as periods during which such
registration of transfer and exchanges need not be made.
(g)
Legends
. If Securities are issued upon the transfer, exchange or
replacement of
Securities not bearing the legends required, as applicable, by the
form of Security attached as Exhibit A, B-1,
B-2 or C 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 licensed to practice law
in the State of New York, as may be
reasonably required by the Issuer that neither the Legend nor the
restrictions on transfer set forth therein
are required to ensure that transfers thereof comply with the
provisions of Rule 144A, Rule 144 or Regulation S
under the Act or that such Securities are not "restricted
securities" within the meaning of Rule 144 under the
Act. Upon provision of such satisfactory evidence, the Fiscal
Agent, at the direction of the Issuer, shall
authenticate and deliver a Security that does not bear the Legend.
The Issuer agrees to indemnify the Fiscal
Agent for, and to hold it harmless against, any loss, liability or
expense, including the fees and expenses of
counsel, reasonably incurred, arising out of or in connection with
actions taken or omitted by the Fiscal Agent
in reliance upon such legal opinion and the delivery of a Security
that does not bear a Legend.
(h)
With the prior approval of the Superintendent, the Issuer and any
person that
constitutes an affiliate of the Issuer within the meaning of the
Act may at any time purchase Securities in the
open market or otherwise at any price, for its own account or the
account of others. Any Security so purchased
by the Issuer or any such affiliate for its own account shall be
promptly surrendered to the Fiscal Agent for
cancellation and shall not thereafter be re-issued or resold.
7.
Optional Redemption
.
(a)
Redemption Price
. Subject to the Payment Restrictions, including the prior approval
of
the Superintendent pursuant to Section 1307 of the New York
Insurance Law (or any successor provision thereto,
and as may be hereafter amended from time to time), the
9
Notes are subject to redemption, as a whole or in part, at the
option of the Issuer at any time and from time
to time, at a redemption price set forth in Paragraph 4 of the
Securities. The Securities may not be redeemed
at the option of a holder thereof.
(b)
Selection of Securities to be Redeemed
. If less than all the Securities are to be
redeemed, the Securities to be redeemed shall be selected by the
Fiscal Agent from the Outstanding Securities
not previously called for redemption, not less than 30 days prior
to the date of such redemption, by lot or by
such other method as the Fiscal Agent shall deem fair and
appropriate and which, subject to Section 7(d), may
provide for the selection for redemption of portions (equal to
$1,000 or a multiple thereof) of the principal
of Securities of a denomination larger than $1,000;
provided
, that if at the time of redemption such Securities
are registered as a Global Security, the Depositary for such Global
Security shall determine, in accordance
with its procedures, the principal amount of such Securities to be
redeemed held by each holder of a beneficial
interest in such Global Security. The Fiscal Agent shall notify the
Issuer promptly of the Securities or
portions thereof selected by it to be redeemed.
(c)
Notice of Redemption; Effect of Notice
. Notices to redeem Securities shall be given by
the Fiscal Agent on behalf of and at the expense of the Issuer in
the manner provided in paragraph 4 of the
Securities. The effect of such notice shall be as set forth in such
paragraph 4.
(d)
Securities Redeemed in Part
. Any Security which is to be redeemed only in part shall be
surrendered with, if the Issuer or the Fiscal Agent so requires,
due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuer and the Fiscal Agent
duly executed by, the holder thereof or his
attorney duly authorized in writing, and the Issuer shall execute,
and the Fiscal Agent shall authenticate and
deliver to the holder of such Security without service charge, a
new registered Security or Securities, of any
authorized denomination as requested by such holder, and as
permitted by Section 1(d) of this Agreement, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security
so surrendered.
8.
Delivery of Certain Information
.
(a)
Rule 144A Information
. At any time when the Issuer is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a holder of a
Definitive Security or the holder of a Global
Security or a beneficial interest in a Global Security that is not
then freely transferable under Rule 144(k)
under the Act or any successor rule, 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;
provided
,
however
, that the Issuer shall not be
required to furnish or cause to be furnished any Rule 144A
Information to any such holder located outside the
United States who is not a "U.S. Person" within the meaning of
Regulation S. "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 provision (or successor provision) may be amended
from time to time.
10
(b)
Periodic Reports
. The Issuer shall deliver (or shall cause the Fiscal Agent to
deliver at the
expense of the Issuer) to each holder of a Security, promptly after
such items are available, one copy of (i)
the audited statutory-basis financial statements of the Issuer
(including the report of independent accountants
thereon and including the notes to such financial statements) and
(ii) the annual statutory-basis statement of
the Issuer as filed by the Issuer with the New York Department of
Insurance. In addition, upon the written
request of a holder of a Definitive Security or the holder of a
Global Security or a beneficial interest in a
Global Security, the Issuer shall promptly furnish or cause to be
furnished to such holder one copy of the
quarterly statutory-basis financial statements of the Issuer as
filed by the Issuer with the New York
Department of Insurance.
9.
Conditions of Fiscal Agent's Obligations
.
The Fiscal Agent accepts its obligations herein set forth upon the
terms and conditions hereof,
including the following, to all of which the Issuer agrees and all
of which are applicable to the Securities
and the holders from time to time thereof:
(a)
Compensation and Indemnity
. Each of the Fiscal Agent, the Paying Agent and the Transfer Agent
shall be entitled to reasonable compensation as agreed from time to
time in writing with the Issuer for all
services rendered by it, and the Issuer agrees promptly to pay such
compensation and to reimburse the Fiscal
Agent for the reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel of its
selection) reasonably incurred by it in connection with or arising
out of its services hereunder, or the
issuance of the Securities and their offering and sale. The Issuer
also agrees to indemnify the Fiscal Agent
and any Paying Agent and Transfer Agent for, and to hold it
harmless against, any loss, damages, claim,
liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of
the Fiscal Agent, any Paying Agent or Transfer Agent), incurred
without gross negligence or bad faith, arising
out of or in connection with its acting as Fiscal Agent, Paying
Agent or Transfer Agent hereunder, as well as
the reasonable costs and expenses reasonably incurred in 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, the Paying Agent or
the Transfer Agent. The Fiscal Agent, the
Paying Agent or the Transfer Agent shall promptly notify the Issuer
of any claim for which it may seek
indemnity, including reasonable costs and expenses reasonably
incurred in defending 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 is
acting solely as agent of the Issuer and does not assume any
responsibility for the correctness of the recitals
in the Securities (except for the correctness of the statement in
its certificate of authentication thereon) or
any obligation or relationship of agency or trust, for or with any
of the owners or holders of the Securities,
except that all funds held by the Fiscal Agent for the payment of
principal of, interest on and Redemption
Amount with respect to the Securities, to the extent permitted
under the Payment Restrictions, shall be held in
trust for such owners or holders, as the case may be, as set forth
herein and in the Securities;
provided
,
however
, that monies held by the Fiscal Agent for the payment of the
principal of,
11
interest on or Redemption Amount with respect to any of the
Securities remaining unclaimed for two years after
such principal, interest or Redemption Amount has become payable in
accordance with the Payment Restrictions
(whether at the Scheduled Maturity Date or otherwise) and monies
sufficient therefor shall have been duly made
available for payment shall, together with any interest made
available for payment thereon, be repaid to the
Issuer. Upon such repayment, the aforesaid trust with respect to
the Securities shall terminate and all
liability of the Fiscal Agent and Paying Agents with respect to
such funds shall thereupon cease.
(c)
Advice of Counsel
. The Fiscal Agent and any Paying Agent or Transfer Agent appointed
by the
Issuer pursuant to Section 2 hereof may consult with their
respective counsel or other independent counsel
satisfactory to them, and the advice or opinion of such counsel
shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
them hereunder in good faith and in
accordance with such advice or opinion.
(d)
Issuer Order
. Any request or direction of the Issuer mentioned herein shall be
sufficiently
evidenced by a written order of the Issuer.
(e)
No Investigation
. The Fiscal Agent shall not be bound to make any investigation
into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document.
(f)
Not Responsible for Recitals or Issuance of Securities
. The recitals contained herein and in the
Securities, except the Fiscal Agent's certificates of
authentication, shall be taken as the statements of the
Issuer, and the Fiscal Agent, any Paying Agent or Transfer Agent
assumes no responsibility for their
correctness. The Fiscal Agent makes no representations as to the
validity or sufficiency of this Agreement or
of the Securities. The Fiscal Agent, Paying Agent and any Transfer
Agent shall not be accountable for the use
or application by the Issuer of Securities or the proceeds thereof.
(g)
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, to be genuine and to have been
passed upon or signed by the proper parties.
(h)
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.
12
(i)
Non-Liability for Interest
. Subject to any agreement between the Issuer and the Fiscal Agent
to
the contrary, the Fiscal Agent and the Paying Agent shall not be
under any liability for interest on monies at
any time received by it pursuant to any of the provisions of this
Agreement or the Securities.
(j)
Certifications
. Whenever in the administration of this Agreement the Fiscal Agent
shall deem it
desirable that a matter of fact be proved or established prior to
taking, suffering or omitting any action
hereunder, the Fiscal Agent (unless other evidence be herein
specifically prescribed) may, in good faith, rely
upon a certificate signed by an Authorized Officer and delivered to
the Fiscal Agent as to such matter of fact.
(k)
No Implied Obligations
. The duties and obligations of the Fiscal Agent and the Issuer
with
respect to matters governed by this Agreement shall be determined
solely by the express provisions hereof, and
neither the Fiscal Agent, the Paying Agent, the Transfer Agent nor
the Issuer shall be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement and the Securities,
as applicable, and no implied covenants or obligations shall be
read into this Agreement or the Securities
against the Fiscal Agent, the Paying Agent, the Transfer Agent or
the Issuer. In the absence of gross
negligence on its part, neither the Paying Agent nor the Transfer
Agent shall be liable for any action taken,
suffered or omitted, or for any error of judgment made by it in the
performance of its duties under this
Agreement. Nothing in this Agreement shall be construed to require
the Fiscal Agent, the Paying Agent or the
Transfer Agent to advance or expend its own funds.
(l)
Force Majeure
. The Fiscal Agent, the Paying Agent and the Transfer Agent shall
not be
responsible or liable for any failure or delay in the performance
of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including,
without limitation, acts of God; earthquakes; fire; flood;
terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunctions of
utilities, computer (hardware or software)
or communication services; accidents; labor disputes; acts of civil
or military authority and governmental
action.
(m)
No Special, Indirect, Punitive or Consequential Losses
. Anything in this Agreement
notwithstanding, in no event shall the Fiscal Agent, the Paying
Agent or the Transfer Agent be liable for
special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including but not limited
to loss of profit), even if the Issuer has been advised as to the
likelihood of such loss or damage and
regardless of the form of action.
(n)
Agents and Attorneys
. The Fiscal Agent, the Paying Agent and the Transfer Agent may
execute any
of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or
attorneys and the Fiscal Agent, the Paying Agent or the Transfer
Agent, as the case may be, shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it
hereunder.
(o)
Authorized Officers
. The Fiscal Agent, the Paying Agent and the Transfer Agent may
request that
the Issuer deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this
13
Agreement, which certificate may be signed by any person authorized
to sign such a certificate, including any
person specified as so authorized in any such certificate
previously delivered and not superseded.
10.
Resignation and Appointment of Successor
.
(a)
Fiscal Agent
. The Issuer agrees, for the benefit of the holders from time to
time of the
Securities, that there shall at all times be a Fiscal Agent
hereunder which shall be a bank or trust company
organized and doing business under the laws of the United States of
America or the State of New York, in good
standing and having an established place of business in the Borough
of Manhattan, The City of New York, and
authorized under such laws to exercise corporate trust powers and
having a combined capital and surplus in
excess of $50,000,000, until all the Securities authenticated and
delivered hereunder (i) shall have been
delivered to the Fiscal Agent for cancellation or (ii) have become
payable, with the approval of the
Superintendent, and monies sufficient to pay the full principal of
and any interest remaining unpaid on the
Securities shall have been made available for payment and either
paid or returned to the Issuer as provided
herein and in such Securities.
(b)
Resignation
. The Fiscal Agent may at any time resign by giving written notice
to the Issuer of
such intention on its part, specifying the date on which its
desired resignation shall become effective;
provided
, that such date shall not be less than 30 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 or resignation or removal, as the
case may be, to be specified in accordance with the preceding
sentences, such resignation or removal shall take
effect only upon the appointment by the Issuer, as hereinafter
provided, of a successor Fiscal Agent (which, to
qualify as such, shall for all purposes hereunder be a bank or
trust company organized and doing business under
the laws of the United States of America or of the State of New
York, in good standing and having and acting
through an established place of business in the Borough of
Manhattan, The City of New York, authorized under
such laws to exercise corporate trust powers and having a combined
capital and surplus in excess of
$50,000,000) and the acceptance of such appointment by such
successor Fiscal Agent. Upon its resignation or
removal, the Fiscal Agent shall be entitled to payment by the
Issuer pursuant to Section 9 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
14
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 appointments as hereinafter provided, and, in the case of
such other Paying Agent, if such other
Paying Agent is the only Paying Agent located in a place where, by
the terms of the Securities or this
Agreement, the Issuer is required to maintain a Paying Agent, then
any holder of a Security who has been a bona
fide holder of a Security for at least six months, 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 the Fiscal Agent hereunder,
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 corporate trust assets or
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.
11.
Meetings and Amendments
.
(a)
Calling of Meeting, Notice and Quorum
. A meeting of holders of Securities may be called at any
time and from time to time to make, give or take any request,
demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or the
Securities to be made, given or taken by
holders of Securities or to modify, amend or supplement the terms
of the Securities or this Agreement as
hereinafter provided, and subject to the requirement hereinafter
set forth that the Issuer and the Fiscal Agent
may, only with the prior approval of the Superintendent, modify,
amend or supplement this Fiscal Agency
Agreement or the terms of the Securities or give consents or
waivers or take other actions with respect
thereto. The Fiscal Agent may at any time call a meeting of holders
of Securities for any such purpose to be
held at such time and at such place in the Borough of Manhattan,
The City
15
of New York as the Fiscal Agent shall determine. Notice of every
meeting of holders of Securities, setting
forth the time and 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 15
nor more than 60 days prior to the date fixed
for such meeting. In case at any time the Issuer or the holders of
at least 10% in aggregate principal amount
of the Outstanding Securities (as defined in subsection (d) of this
Section) shall have requested the Fiscal
Agent to call a meeting of the holders of Securities for any such
purpose, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
the Fiscal Agent shall call such meeting for
such purposes by giving notice thereof.
To be entitled to vote at any meeting of holders of Securities, a
person shall be a holder of
Outstanding Securities or a person duly appointed by an instrument
in writing as proxy for such a holder. The
persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a
quorum. At the reconvening of any meeting adjourned for a lack of a
quorum, the persons entitled to vote 25% in
principal amount of the Outstanding Securities shall constitute a
quorum for the taking of any action set forth
in the notice of the original meeting. The Fiscal Agent may make
such reasonable and customary regulations
consistent herewith as it shall deem advisable for any meeting of
holders of Securities with respect to the
proof of the appointment of proxies in respect of holders of
Securities, the record date for determining the
registered owners of Securities who are entitled to vote at such
meeting (which date shall be designated by the
Fiscal Agent and set forth in the notice calling such meeting
hereinabove referred to and which shall not be
less than 15 nor more than 60 days prior to such meeting;
provided
, that nothing in this paragraph shall be
construed to render ineffective any action taken by holders of the
requisite principal amount of Outstanding
Securities on the date such action is taken), the adjournment and
chairmanship of such meeting, the appointment
and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct
of the meeting as it shall deem
appropriate.
(b)
Approval
. (i) At any meeting of holders of Securities duly called and held
as specified above,
upon the affirmative vote, in person or by proxy thereunto duly
authorized in writing, of the holders of not
less than a majority in aggregate principal amount of the
Securities then Outstanding represented at such
meeting, or (ii) with the written consent of the holders of not
less than a majority in aggregate principal
amount of the Securities then Outstanding, in each case (i) or (ii)
the Issuer and the Fiscal Agent may, with
the prior approval of the Superintendent, modify, amend or
supplement the terms of the Securities or this
Agreement, in any way, and the holders of Securities may make, take
or give any request, demand, authorization,
direction, notice, consent, waiver (including waiver of future
compliance or past failure to perform) or other
action provided by this Agreement or the Securities to be made,
given or taken by holders of Securities;
provided
,
however
, that any such action, modification, amendment or supplement to be
effected pursuant to
clause (i) of this subsection (b) shall be approved by the holders
of not less than 25% of the aggregate
principal amount of Securities then Outstanding; and
provided
,
further
, that no such action, modification,
amendment or supplement, however effected, may, without the consent
of the holder of each Security affected
thereby, (A) change the Scheduled Interest Payment Date or
Scheduled Maturity Date (in each case, as defined in
the Securities) of
16
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 principal of, interest on or Redemption
Amount with respect to the Securities is
payable, (D) change the Issuer's obligations under Section 8(a)
hereof in any manner adverse to the interests
of the holder of a Security, (E) impair the right of a holder of a
Security to institute suit for the
enforcement of any payment, if such payment is permitted under the
Payment Restrictions, on or with respect to
any Security, (F) reduce the above-stated percentage of the
principal amount of Outstanding Securities the vote
or consent of the holders of which is necessary to modify, amend or
supplement this Agreement or the terms and
conditions of the Securities or to make, take or give any request,
demand, authorization, direction, notice,
consent, waiver (including waiver of any future compliance or past
failure to perform) or other action provided
hereby or thereby to be made, taken or given, (G) reduce the
percentage of aggregate principal amount of
Outstanding Securities that constitutes the quorum required at any
meeting of holders of Securities at which a
resolution is adopted, (H) change the restrictions on payment set
forth in the Securities in a manner adverse
to such holder, or (I) change the provisions of Paragraph 11 of the
Securities in a manner adverse to such
holder.
The Issuer and the Fiscal Agent may, with the prior approval of the
Superintendent and 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
Security holder in any material respect, or (g) curing any
ambiguity or correcting or supplementing any
defective provision contained herein or in the Securities in a
manner which does not adversely affect the
interest of any Security holder in any material respect, or (h)
effecting any amendment which the Issuer and
the Fiscal Agent may determine is necessary or desirable and which
shall not adversely affect the interest of
any Security holder in any material respect.
No amendment, modification or supplement of or to the Securities or
this Agreement which would
adversely affect any of the rights, privileges, immunities,
obligations or indemnities of the Fiscal Agent, the
Paying Agent or the Transfer Agent shall be effective without the
consent of the Fiscal Agent, the Paying Agent
or the Transfer Agent, as the case may be.
It shall not be necessary for the vote or consent of the holders of
Securities to approve the
particular form of any proposed modification, amendment,
supplement, request, demand, authorization, direction,
notice, consent, waiver or other action, but it shall be sufficient
if such vote or consent shall approve the
substance thereof.
17
The Fiscal Agent shall receive an opinion of counsel in connection
with any amendment or supplement
entered into hereunder stating that the execution of such amendment
or supplement is authorized or permitted
hereunder.
(c)
Binding Nature of Amendments, Notices, Notations, Etc.
Any instrument given by or on behalf of
any holder of a Security in connection with any consent to or vote
for any such modification, amendment,
supplement, request, demand, authorization, direction, notice,
consent, waiver or other action shall be
irrevocable once given and shall be conclusive and binding on all
subsequent holders of such Security or any
Security issued directly or indirectly in exchange or substitution
therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand,
authorization, direction, notice, consent, waiver or
other action taken, made or given in accordance with Section 11(b)
hereof, shall be conclusive and binding on
all holders of Securities whether or not they have given such
consent or cast such vote or were present at any
meeting, and whether or not notation of such modification,
amendment, supplement, request, demand,
authorization, direction, notice, consent, waiver or other action
is made upon the Securities. Notice of any
modification or amendment of, supplement to, or request, demand,
authorization, direction, notice, consent,
waiver or other action with respect to, the Securities or this
Agreement (other than for purposes of curing any
ambiguity or of curing, correcting or supplementing any defective
provision hereof or thereof) shall be given
to each holder of Securities affected thereby, in all cases as
provided in the Securities. Any failure of the
Issuer to give notice to each holder of Securities, or any defect
in such notice, shall not however, in any way
impair or affect the validity of any such modification, amendment,
supplement, request, demand, authorization,
direction, notice, consent, waiver or action.
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 11(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:
(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
18
interest thereon shall have been paid by the Issuer to the Fiscal
Agent or any Paying Agent; and
(iii) Securities in lieu of or in substitution for which other
Securities shall have been
authenticated and delivered pursuant to this Agreement;
provided
,
however
, that in determining whether the holders of the requisite
principal amount of Outstanding
Securities are present at a meeting of holders of Securities for
quorum purposes or have consented to or voted
in favor of any request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or
supplement hereunder, Securities owned directly or indirectly by
the Issuer, or any affiliate of the Issuer,
shall be disregarded and deemed not to be Outstanding.
12.
Governing Law
.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW
YORK, UNITED STATES OF AMERICA.
13.
Waiver of Jury Trial
.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT.
14.
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 or transmitted by facsimile to it
at The Bank of New York, 101 Barclay Street,
Floor 8 West, New York, New York 10286, Attention: Corporate Trust
Trustee Administration, telephone: (212)
815-4770, fax: (212) 815-5707, and if sent to the Issuer shall be
delivered or transmitted by facsimile to it
at One American Row, Hartford, Connecticut, 06102, Attention:
Treasurer, telephone: (860) 403-6763, fax: (860)
403-5009. All notices of communications hereunder shall be deemed
effective when received by a Responsible
Officer (as defined below) of the Fiscal Agent, the Paying Agent or
the Transfer Agent, as the case may be, at
the corporate trust office of such agent. 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. "Responsible Officer,"
when used with respect to the Fiscal Agent, the Paying Agent or the
Transfer Agent, means any officer of the
Fiscal Agent, the Paying Agent or the Transfer Agent with direct
responsibility for this Agreement and also
means, with respect to a particular corporate trust matter, any
other officer of the Fiscal Agent, the Paying
Agent or the Transfer
19
Agent to whom such matters is referred because of his/her knowledge
and familiarity with the particular
subject.
15.
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.
16.
Headings
.
The section headings herein are for convenience of reference only
and shall not affect the
construction hereof.
17.
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.
20
IN WITNESS WHEREOF
, the parties hereto have executed this Agreement as of the date
first above
written.
PHOENIX LIFE INSURANCE COMPANY
By:
/s/ Michael E. Haylon
Name:
Michael E. Haylon
Title:
Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Fiscal Agent
By:
/s/ Geovanni Barris
Name:
Geovanni Barris
Title:
Vice President
21
EXHIBIT A
FORM OF RULE 144A GLOBAL SECURITY
A-1
FORM OF GLOBAL SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT,
COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT
THE CORPORATE TRUST OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF
THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH
REGISTRATION PROVIDED BY RULE 144A UNDER THE
ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE
HEREAFTER AMENDED FROM TIME TO TIME, "RULE
144A").
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST
COMPANY ("DTC") TO PHOENIX LIFE INSURANCE COMPANY (THE "ISSUER") OR
ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IN EXCHANGE FOR THIS
SECURITY OR ANY PORTION HEREOF IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON OTHER THAN DTC OR A NOMINEE
THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL
AGENCY AGREEMENT REFERRED
TO HEREINAFTER. THIS GLOBAL SECURITY MAY NOT BE EXCHANGED, IN WHOLE
OR IN PART, FOR A SECURITY REGISTERED IN
THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES SET FORTH IN
SECTION 5 OF THE FISCAL AGENCY AGREEMENT, AND MAY NOT BE
TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTION 6(C) OF THE FISCAL
AGENCY AGREEMENT.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY OR SECURITY ISSUED IN
EXCHANGE THEREFOR (UNLESS,
PURSUANT TO SECTION 6(G) OF THE FISCAL AGENCY AGREEMENT, THE ISSUER
DETERMINES THAT THE LEGEND MAY BE REMOVED)]
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER
THAT (A) THIS SECURITY MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) IN A MINIMUM
PRINCIPAL AMOUNT OF $10,000 TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS
DEFINED IN RULE 144A, IN A TRANSACTION IN
ACCORDANCE WITH RULE 144A, (2) IN A MINIMUM PRINCIPAL AMOUNT OF
$10,000 IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE ACT (TOGETHER WITH
ANY SUCCESSOR PROVISION THERETO, AND AS MAY
BE HEREAFTER AMENDED FROM TIME TO TIME, "REGULATION S"), (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 (OR ANY SUCCESSOR PROVISION THERETO, AND AS
MAY BE HEREAFTER AMENDED FROM TIME TO TIME)
UNDER THE ACT (IF AVAILABLE), (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (5) SUBJECT
TO THE PRIOR APPROVAL OF THE SUPERINTENDENT (AS HEREINAFTER
DEFINED) TO THE ISSUER OR ANY AFFILIATE OF THE
ISSUER (WITHIN THE MEANING OF THE ACT), IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES, AND (B) THAT THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESTRICTIONS REFERRED
TO IN (A) ABOVE.
ALL PAYMENTS OF PRINCIPAL, INTEREST ON AND REDEMPTION AMOUNT (AS
HEREINAFTER DEFINED) WITH
RESPECT TO THIS SECURITY MAY ONLY BE MADE OUT OF THE ISSUER'S FREE
AND DIVISIBLE SURPLUS AND WITH THE PRIOR
APPROVAL OF THE SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW
YORK (THE "SUPERINTENDENT"), IN ACCORDANCE WITH
SECTION 1307 OF THE NEW YORK INSURANCE LAW (TOGETHER WITH ANY
SUCCESSOR PROVISION, AND AS MAY BE HEREAFTER
AMENDED FROM TIME TO TIME, "SECTION 1307"). THERE ARE NO GUIDELINES
OR INTERPRETATIONS AS TO THE EXTENT OF THE
SUPERINTENDENT'S DISCRETION UNDER SECTION 1307 IN DETERMINING
WHETHER THE FINANCIAL CONDITION OF THE ISSUER
WARRANTS THE MAKING OF SUCH PAYMENTS.
2
PHOENIX LIFE INSURANCE COMPANY
7.15% Surplus Notes scheduled to mature on
December 15, 2034
CUSIP No.:
71909V AA 2
ISIN No.:
US71909VAA26
$___________
PHOENIX LIFE INSURANCE COMPANY, a stock life insurance company
organized under the laws of
the State of New York (herein called the "Issuer"), for value
received, hereby promises to pay, subject to the
approval of the Superintendent pursuant to Section 1307, to Cede
& Co., or registered assigns, the
principal sum of ____________ United States dollars ($____________)
or such other amount (not to exceed one
hundred seventy five million dollars ($175,000,000) when taken
together with all of the Issuer's 7.15% Surplus
Notes scheduled to mature on December 15, 2034 issued and
outstanding in definitive certificated form or in the
form of another Global Security) as may from time to time represent
the principal amount of the Issuer's 7.15%
Surplus Notes scheduled to mature on December 15, 2034 in respect
of which beneficial interests are held
through the Depositary in the form of a Global Security, on
December 15, 2034 (the "Scheduled Maturity Date"),
and to pay interest thereon, subject to the approval of the
Superintendent pursuant to Section 1307, from
December 15, 2004 or from the most recent Scheduled Interest
Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on June 15 and December
15 in each year, commencing June 15, 2005
(each a "Scheduled Interest Payment Date"), at the rate of 7.15%
per annum, until the principal hereof is paid
or duly provided for. This Security is subject to redemption prior
to the Scheduled Maturity Date as specified
in Paragraph 4 hereof. The date upon which any state or federal
agency obtains an order or grants approval for
the rehabilitation, liquidation, conservation or dissolution of the
Issuer shall also be deemed to be the
Scheduled Maturity Date. As specified on the reverse hereof, all
payments of principal of, interest on or
Redemption Amount (as hereinafter defined) with respect to this
Security may be made only out of the Issuer's
free and divisible surplus and only with the prior approval of the
Superintendent pursuant to Section 1307. The
interest so payable, and punctually paid or duly provided for, on
any Scheduled Interest Payment Date shall be
paid, in accordance with the terms of the Fiscal Agency Agreement
hereinafter referred to, to the person (the
"registered holder") in whose name this Security (or one or more
predecessor Securities) is registered at the
close of business on June 1 or December 1 (whether or not a
Business Day (as defined on the reverse hereof)),
as the case may be (each a "Regular Record Date"), next preceding
such Scheduled Interest Payment Date.
Interest on the Securities shall be calculated on the basis of a
360-day year of twelve 30-day months. Any such
interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the registered
holder on such Regular Record Date and shall be paid to the person
in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a
special record date for the payment of such
interest to be fixed by the Issuer, notice whereof shall be given
to registered holders of the Securities not
less than 15 days prior to such special record date.
Principal of and Redemption Amount with respect to this Security
shall be payable against
surrender hereof at the corporate trust office of the Fiscal Agent
hereinafter referred to and at the offices
of such other Paying Agents as the Issuer shall have appointed
3
pursuant to the Fiscal Agency Agreement. Payments of principal of
and Redemption Amount with respect to the
Securities shall be made only against surrender of the Securities.
Payments of interest on this Security may be
made, in accordance with the foregoing and subject to applicable
laws and regulations, by check mailed on or
before the Scheduled Interest Payment Date of such payment to the
person entitled thereto at such person's
address appearing on the aforementioned register. Any permitted
payment of principal of and Redemption Amount
with respect to this Security may be made by check. Notwithstanding
the foregoing, permitted payments of
principal of, any interest on or Redemption Amount with respect to
this Security shall be made, in the case of
a registered holder of at least $5,000,000 aggregate principal
amount of Securities, by wire transfer to an
account maintained by the payee with a bank in the United States 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 Maturity Date or
Scheduled Interest Payment Date hereof, of such
election and of the account to which payment is to be made. Unless
such designation is revoked, any such
designation made by such holder with respect to such Securities
shall remain in effect with respect to any
future payments with respect to such Securities payable to such
holder. The Issuer agrees that until this
Security has been delivered to the Fiscal Agent for cancellation,
or monies sufficient to pay the full
principal of and interest remaining unpaid on this Security have
been made available for payment and either
paid or returned to the Issuer as provided herein, it will at all
times maintain offices or agencies in the
Borough of Manhattan, The City of New York for the payment of the
principal of, interest on and Redemption
Amount with respect to 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.
4
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
Dated:
PHOENIX LIFE INSURANCE COMPANY
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Fiscal Agency Agreement.
THE BANK OF NEW YORK
as Fiscal Agent
By: ______________________________________________
Authorized Signatory
5
FORM OF REVERSE
1. This Security is one of a duly authorized issue of 7.15% Surplus
Notes scheduled to mature
on December 15, 2034 of the Issuer (herein called the "Securities"
or "Notes"), limited in aggregate principal
amount to $175,000,000. The Issuer and The Bank of New York (as
"Fiscal Agent") have entered into a Fiscal
Agency Agreement, dated as of December 15, 2004 (such instrument,
as it may be duly amended from time to time,
is herein called the "Fiscal Agency Agreement"), which provides for
the mechanism for issuing the Securities
and,
inter
alia
, sets forth certain duties of the Fiscal Agent in connection
therewith. As used herein, the
term "Fiscal Agent" includes any successor fiscal agent under the
Fiscal Agency Agreement. Copies of the Fiscal
Agency Agreement are on file and available for inspection at the
corporate trust office of the Fiscal Agent in
the Borough of Manhattan, The City of New York. Holders of
Securities are referred to the Fiscal Agency
Agreement for a statement of the terms thereof, including those
relating to transfer, payment, exchanges and
certain other matters to all of which terms the Securities are
subject. 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 5 and 11 hereof (the "Payment
Restrictions"), are scheduled to mature on
December 15, 2034. Section 1307 provides that the Securities are
not part of the legal liabilities of the
Issuer and are not a basis of any set-off against the Issuer.
The date upon which any state or federal agency obtains an order or
grants approval for the
rehabilitation, liquidation, conservation or dissolution of the
Issuer shall also be deemed to be the Scheduled
Maturity Date.
2. The Securities are issuable only in fully registered form
without coupons. The Securities
and beneficial interests in Global Securities shall be issuable:
(i) in the case of Securities offered and sold
to the Initial Purchasers and subsequently transferred in reliance
on Rule 144A, in minimum denominations of
$10,000 and any amount in excess thereof that is an integral
multiple of $1,000; (ii) in the case of Securities
offered and sold to the Initial Purchasers and subsequently
transferred in reliance on Regulation S, in minimum
denominations of $10,000 and any amount in excess thereof that is
an integral multiple of $1,000; and (iii) in
the case of Securities offered and sold to the Initial Purchasers
and subsequently transferred to Accredited
Investors, in minimum denominations of $100,000 and any amount in
excess thereof that is an integral multiple
of $1,000.
3. The Issuer shall maintain, in the Borough of Manhattan, The City
of New York, a Transfer
Agent where Securities may be registered or surrendered for
registration of transfer or exchange. The issuer
has initially appointed the corporate trust office of the Fiscal
Agent as its Transfer Agent in the Borough of
Manhattan, The City of New York. The Issuer shall cause each
Transfer Agent to act as a Securities registrar
and shall cause to be kept at the office of each Transfer Agent a
register in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and registration
of transfers of Securities. The Issuer reserves the right to vary
or terminate the appointment of any
6
Transfer Agent or to appoint additional or other Transfer Agents or
to approve any change in the office through
which any Transfer Agent acts;
provided
, that there shall at all times be a Transfer Agent in the Borough
of
Manhattan, The City of New York. The Issuer shall cause notice of
any resignation, termination or appointment
of the Fiscal Agent or any Paying Agent or Transfer Agent and of
any change in the office through which any
such Agent shall act to be provided to holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, the transfer
of a Security is registrable on the aforementioned register upon
surrender of such Security at any Transfer
Agent duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer
duly executed by, the registered holder thereof or his attorney
duly authorized in writing. Upon such surrender
of this Security for registration of transfer, the Issuer shall
execute, and the Fiscal Agent shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities,
dated the date of authentication thereof, of any authorized
denominations and of a like aggregate principal
amount.
Subject to the restrictions set forth herein and in the Fiscal
Agency Agreement, at the
option of the registered holder upon request confirmed in writing,
Securities may be exchanged for Securities
of any authorized denominations and aggregate principal amount upon
surrender of the Securities to be exchanged
at the office of any Transfer Agent. Whenever any Securities are so
surrendered for exchange, the Issuer shall
execute, and the Fiscal Agent shall authenticate and deliver, the
Securities which the registered holder making
the exchange is entitled to receive. Any registration of transfer
or exchange shall be effected upon the Issuer
being satisfied with the documents of title and identity of the
person making the request and subject to the
restrictions set forth in the immediately following paragraph and
such reasonable regulations as the Issuer may
from time to time agree with the Fiscal Agent.
All Securities issued upon any registration of transfer or exchange
of Securities shall be
the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits, as the
Securities surrendered upon such registration of transfer or
exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith and
any other amounts, if any, required to be paid
by the provisions of the Securities in connection with a transfer
or exchange thereof.
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. Subject to the Payment Restrictions, including the prior
approval of the Superintendent
pursuant to Section 1307, the Securities are subject to redemption,
as a whole or in part, at the option of the
Issuer at any time and from time to time, at a redemption price
equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed and (ii) as
determined by the Quotation Agent (as defined
below), the sum of the present values of the
7
remaining scheduled payments of principal and interest on the
Securities to be redeemed (not including any
portion of such payments of interest accrued to the date of
redemption) discounted to the date of redemption on
a semi-annual basis, assuming a 360-day year consisting of twelve
30-day months, at the Adjusted Treasury Rate
(as defined below), plus 35 basis points (the greater of (i) and
(ii), the "Redemption Amount"), plus, in
either case (i) or (ii), accrued interest on the Securities to be
redeemed to, but not including, the date of
redemption.
(i) "Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum
equal to the semi-annual equivalent yield to maturity, as
determined by the Quotation Agent, of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that redemption
date.
(ii) "Comparable Treasury Issue" means the United States Treasury
security selected by the
Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be redeemed that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
(iii) "Comparable Treasury Price" means, with respect to any
redemption date, (i) the average
of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest of
these Reference Treasury Dealer Quotations, or (ii) if the Issuer
obtains fewer than three Reference Treasury
Dealer Quotations, the average of all such Quotations, in either
case (i) or (ii) as determined by the Issuer.
(iv) "Quotation Agent" means Goldman, Sachs & Co. (or its
successor) or any successor
Quotation Agent appointed by the Issuer from time to time.
(v) "Reference Treasury Dealer" means: (i) Goldman, Sachs & Co.
(or its successor) and one or
more other Primary Treasury Dealers (as defined in this paragraph)
appointed by the Issuer;
provided
,
however
,
that if Goldman, Sachs & Co. (or its successor) or any other
selected Primary Treasury Dealer shall cease to be
a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Issuer shall
substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the
Issuer.
(vi) "Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury
Dealer and any redemption date, the average, as determined by the
Issuer, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to
the Issuer by that Reference Treasury Dealer at 5:00 p.m. on the
third Business Day before that redemption
date.
(b) Notice of any redemption pursuant to Paragraph 4(a) hereof will
be given to holders of
the Securities as set forth below. Any determination that is
contemplated in Paragraph 4(a) hereof to be made
by the Quotation Agent or the Issuer may be made by such person in
its sole discretion and, when made by such
person, shall be final and binding on the Issuer, holders of the
Securities and all other persons absent
manifest error. Interest installments
8
due on this Security on or prior to a redemption date will be
payable to the holder of this Security of record
at the close of business on the relevant record date, all as
provided in the Fiscal Agency Agreement.
(c) In the case of any partial redemption of the Securities, the
Securities to be redeemed
shall be selected by the Fiscal Agent not less than 30 days prior
to the date of such redemption, from the
outstanding Securities not previously called for redemption, by
such method as the Fiscal Agent shall deem fair
and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or a
multiple thereof) of the principal of Securities of denomination
larger than $1,000;
provided
, that if at the
time of redemption such Securities are registered as a Global
Security, the Depositary for such Global Security
shall determine, in accordance with its procedures, the principal
amount of such Securities to be redeemed held
by each holder of a beneficial interest in such Global Security.
The Fiscal Agent shall notify the Issuer
promptly of the Securities or portion thereof to be redeemed.
(d) Notices to redeem Securities shall be given to holders of
Securities in writing mailed,
first-class postage prepaid, to each holder of registered
Securities, or portions thereof, so to be redeemed,
at his address as it appears in the securities register. Such
notice will be given once not more than 60 days
nor less than 30 days prior to the date fixed for redemption. If by
reason of the suspension of regular mail
service, or by reason of any other cause, it shall be impracticable
to give notice to the holders of Securities
in the manner prescribed herein, then such notification in lieu
thereof as shall be made by the Issuer or by
the Fiscal Agent on behalf of and at the instruction of the Issuer
shall constitute sufficient provision of
such notice, if such notification shall, so far as may be
practicable, approximate the terms and conditions of
the mailed notice in lieu of which it is given. Neither the failure
to give notice nor any defect in any notice
given to any particular holder of a Note shall affect the
sufficiency of any notice with respect to other
Securities. Notices to redeem Securities shall specify the date
fixed for redemption, the Redemption Amount,
the place or places of payment, that payment will be made upon
presentation and surrender of the Securities to
be redeemed (or portion thereof in the case of a partial
redemption), that interest accrued to the date fixed
for redemption (unless the date of redemption is a Scheduled
Interest Payment Date) will be paid as specified
in said notice, and that on and after said date interest thereon
will cease to accrue if the Securities are so
redeemed. In addition, in the case of a partial redemption, such
notice shall specify the Securities called for
redemption and the aggregate principal amount of the Securities to
remain outstanding after the redemption.
(e) If notice of redemption has been given in the manner set forth
in paragraph 4(d) hereof,
the Securities so to be redeemed shall be payable in full on the
date specified in such notice and upon
presentation and surrender of the Securities at the place or places
specified in such notice, the Securities
shall be paid and redeemed by the Issuer at the places and in the
manner and currency herein specified and at
the Redemption Amount together with accrued interest (unless the
redemption date is a Scheduled Interest
Payment Date) to, but not including, the redemption date. From and
after the redemption date, if monies for the
redemption of Securities called for redemption shall have been made
available at the Corporate Trust Office of
the Fiscal Agent for redemption on the redemption date, the
Securities called for redemption shall cease to
bear interest, and the only right of the holders with respect to
such Securities or portion thereof being
redeemed shall be to receive payment of the Redemption
9
Amount together with accrued interest (unless the redemption date
is a Scheduled Interest Payment Date) to the
redemption date as aforesaid. If monies for the redemption of the
Securities are not made available for payment
until after the redemption date, the Securities called for
redemption shall not cease to bear interest until
such monies have been so made available.
(f) Any Security that is to be redeemed only in part shall be
surrendered with, if the Issuer
or the Fiscal Agent so requires, due endorsement by, or a written
instrument of transfer in form satisfactory
to the Issuer and the Fiscal Agent duly executed by, the holder
thereof or his attorney duly authorized in
writing, and the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver to the holder of
such Security without service charge, a new registered Security or
Securities, of any authorized denomination
as requested by such holder, and as permitted by Section 1(d) of
the Fiscal Agency Agreement, in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so
surrendered.
5. (a) Notwithstanding anything to the contrary set forth herein or
in the Fiscal Agency
Agreement, any payment of principal of, interest on or Redemption
Amount or any other monies owing with respect
to this Security, whether at the Scheduled Interest Payment Date or
Scheduled Maturity Date specified herein,
on the redemption date or otherwise, may be made only (i) out of
the free and divisible surplus of the Issuer
which the Superintendent determines to be available for such
payments under Section 1307 and (ii) with the
prior approval of the Superintendent whenever, in his judgment, the
financial condition of the Issuer warrants
such payment, in accordance with Section 1307. If the
Superintendent does not approve the making of any payment
of principal of or interest on this Security on the Scheduled
Interest Payment Date or Scheduled Maturity Date
thereof, as specified herein, the Scheduled Interest Payment Date
or Scheduled Maturity Date, as the case may
be, shall be extended and such payment shall be made by the Issuer
on the next following Business Day on which
the Issuer shall have the approval of the Superintendent to make
such payment. Interest will continue to accrue
on any such unpaid principal through the actual date of payment at
the rate of interest stated on the face
hereof. Interest will not accrue on interest with respect to which
the Scheduled Interest Payment Date has been
extended, during the period of such extension. If the
Superintendent approves a payment of principal of or
interest on the Securities in an amount that is less than the full
amount of principal of and interest on the
Securities then scheduled to be paid in respect of the Securities,
payment of such partial amount shall be made
pro
rata
among Security holders as their interests may appear.
(b) Any payment of principal of or interest on any Security as to
which the approval of the
Superintendent has been obtained and which is not punctually paid
or duly provided for on the Scheduled
Interest Payment Date or Scheduled Maturity Date thereof, as set
forth herein (such payment being referred to
as an "Unpaid Amount"), will forthwith cease to be payable to the
registered owner of this Security on the
relevant record date designated herein, and such Unpaid Amount will
instead be payable to the registered owner
of this Security on a subsequent special record date. The Issuer
shall fix the special record date and payment
date for the payment of any Unpaid Amount. At least 15 days before
the special record date, the Issuer shall
mail to each holder of the Securities and the Fiscal Agent a notice
that states the special record date,
payment date and amount of interest or principal to be paid. On the
payment date
10
set forth in such notice, the Paying Agent shall pay the amount of
interest or principal to be so paid to each
holder of the Securities in the manner set forth in Section 4(a) of
the Fiscal Agency Agreement.
6. (a) For so long as the Fiscal Agent is acting as a Paying Agent
hereunder, the Issuer
shall provide, subject to the Payment Restrictions, to the Fiscal
Agent in immediately available funds on or
prior to 10:00 a.m., New York time, of each date on which a payment
of principal of, interest on or Redemption
Amount with respect to this Security is payable, as set forth
herein, such amounts as are necessary (with any
amounts then held by the Fiscal Agent and available for the
purpose) to make such payment, and the Issuer
hereby authorizes and directs the Fiscal Agent from funds so
provided to it to make or cause to be made payment
of the principal of, interest on and Redemption Amount with respect
to, as the case may be, this Security as
set forth herein and in the Fiscal Agency Agreement. Payments of
interest on this Security may be made, in
accordance with the foregoing and subject to applicable laws and
regulations, by check mailed on or before the
Scheduled Interest Payment Date of such payment to the person
entitled thereto at such person's address
appearing on the aforementioned register. Any permitted payment of
principal of this Security may be made by
check. Notwithstanding the foregoing, permitted payments of
principal of, interest on or Redemption Amount with
respect to this Security 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 an account
maintained by the payee with a bank in the
United States 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 payment
is scheduled to be made, of such election and of the account to
which payments are to be made. Unless such
designation is revoked, any such designation made by such holder
with respect to such Securities shall remain
in effect with respect to any future payments with respect to such
Securities payable to such holder. The
Issuer shall pay any reasonable administrative costs in connection
with making any such payments. The Fiscal
Agent shall arrange directly with any other Paying Agent who may
have been appointed by the Issuer pursuant to
the provisions of Section 2 of the Fiscal Agency Agreement for the
payment from funds so paid by the Issuer of
the principal of, interest on and Redemption Amount with respect to
this Security. Any monies held by the
Fiscal Agent for the payment of the principal of, interest on or
Redemption Amount with respect to any of the
Securities remaining unclaimed for two years after such principal,
interest or Redemption Amount has become
payable in accordance with the Payment Restrictions (whether at the
Scheduled Maturity Date or otherwise) and
monies sufficient therefor shall have been duly made available for
payment shall, together with any interest
made available for payment thereon, be repaid to the Issuer upon
written request and upon such repayment all
liability of the Fiscal Agent with respect thereto shall cease,
without, however, limiting in any way any
obligation the Issuer may have to pay the principal of, interest on
and Redemption Amount with respect to this
Security, subject to the Payment Restrictions.
(b) In any case where the Scheduled Interest Payment Date,
Scheduled Maturity Date or
redemption date of any Security shall be at any place of payment a
day on which banking institutions are not
carrying out transactions in U.S. dollars or are authorized or
obligated by law or executive order to close,
then payment of principal of, interest on or Redemption Amount with
respect to any Security 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
11
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,
Scheduled Maturity Date or redemption date thereof, and no interest
shall accrue for the period of such delay.
7. 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.
8. 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 9
hereof, the Issuer will do or
cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence,
material rights (charter and statutory) and franchise;
provided
,
however
, that the Issuer shall not be required
to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer
and that the Issuer has used its best
efforts to not disadvantage in any material respect the holders of
the Securities, or that not preserving such
right or franchise is in the best interest of the policyholders of
the Issuer having considered the interests
of the holders of the Securities.
(b) The Issuer will not be or become an open-end investment
company, unit investment trust or
face amount certificate company that is or is required to be
registered under Section 8 of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), if
such action would cause the Issuer to be in
violation of the Investment Company Act at any time prior to
payment in full of the Securities.
(c) The Issuer shall use its best efforts to obtain the approval of
the Superintendent in
accordance with Section 1307 for the payment by the Issuer of
principal of and interest on the Securities on
the Scheduled Interest Payment Dates 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 that arises as
a result of the obtaining of an order or the
granting of approval for the rehabilitation, liquidation,
conservation or dissolution of the Issuer), the
Issuer will seek the approval of the Superintendent to make each
payment of principal of and interest on the
Securities. In addition, the Issuer shall notify or cause to be
notified the Fiscal Agent no later than 5
Business Days (as defined herein), and the Fiscal Agent will notify
each holder, prior to the Scheduled
Interest Payment Date for interest on or the Scheduled Maturity
Date for principal of any Security (excluding
any such Scheduled Maturity Date which arises as a result of the
obtaining of an order or the granting of
approval for the
12
rehabilitation, liquidation, conservation or dissolution of the
Issuer) in the event that the Superintendent
has not then approved the making of any such payment on such
Scheduled Interest Payment Date or such Scheduled
Maturity Date, and thereafter shall promptly notify the Fiscal
Agent, and the Fiscal Agent will notify each
holder, in the event that the Issuer shall have failed to make any
such payment on any such Scheduled Interest
Payment Date or such Scheduled Maturity Date. Without limiting the
Issuer's obligations set forth in this
paragraph, it is understood that, to the extent authorized by the
Issuer's Board of Directors, the Issuer may
continue to declare and pay dividends to its stockholders and to
declare policyowner dividends and to make
dividend payments on its participating policies, in each case even
though payments on the Securities may not
have been approved by the Superintendent, regardless of the effect
any such declaration or payment may have on
the Superintendent's decision regarding payment of principal of,
interest on or Redemption Amount with respect
to the Securities.
9. 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 in any legal
manner from a stock life insurance company
into a mutual life insurance company, 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 conversion, merger or consolidation, the
Issuer is the surviving corporation or (B) in
the case of a conversion, merger or consolidation where the Issuer
is not the surviving corporation and in the
case of any such sale, conveyance, transfer or other disposition,
the successor corporation is a corporation
organized and existing under the laws of the United States or a
State thereof and such corporation expressly
assumes by supplemental fiscal agency agreement all the obligations
of the Issuer under the Securities and the
Fiscal Agency Agreement, (ii) at the time of any such conversion,
merger or consolidation, or such sale,
conveyance, transfer or other disposition, the Issuer shall not
have failed to make payment of principal of,
interest on or Redemption Amount with respect to the Securities
after having received the Superintendent's
prior approval to make such payment and, in the case of any payment
of the Redemption Amount, the Issuer has
given notice of redemption pursuant to Paragraph 4(a) hereof and
(iii) the Issuer has delivered to the Fiscal
Agent an Officer's Certificate stating that such conversion,
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.
10. No "employee benefit plan" within the meaning of Section 3(3)
of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") that is subject
to Title I of ERISA, or "plan" within the
meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986,
as amended (the "Code"), as to which the
Issuer or any of its affiliates is a "party in interest" within the
meaning of Section 3(14) of ERISA or a
"disqualified person" within the meaning of Section 4975(e)(2) of
the Code (each a "Plan"), and no person using
the assets of any such Plan, may acquire this Security, unless the
acquisition and continued holding of the
Security is exempt under one or more of Prohibited Transaction
Class Exemptions ("PTCE") 84-14, 90-1, 91-38,
95-60 or 96-23 issued by the United States Department of Labor
("DOL") or another applicable prohibited
transaction exemption issued by the DOL. The purchase by any person
of
13
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 a person using the assets of any
Plan or (ii) is a Plan or is a person using
the assets of a Plan to purchase this Security and such Plan is (x)
a "Qualified Institutional Buyer" as
defined in Section 144A of the Act and (y) may acquire and hold
this Security under PTCE 84-14, 90-1, 91-38,
95-60 or 96-23 or another applicable prohibited transaction
exemption issued by the DOL. The restrictions on
purchases (and continued holding) of the Securities set forth in
this Paragraph 10 are in addition to those
otherwise set forth in Section 6 of the Fiscal Agency Agreement and
under applicable law.
11. (a) The Issuer agrees, and each Security holder by accepting a
Security agrees, that the
indebtedness evidenced by the Securities is subordinated in right
of payment, to the extent and in the manner
provided in this Paragraph, to the prior payment in full of all
Indebtedness, Policy Claims and Other Creditor
Claims (each as hereinafter defined), in accordance with Section
7435 of the New York Insurance law (together
with any successor provision, and as may be hereafter amended from
time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation,
conservation, dissolution or reorganization proceeding relating to
the Issuer or its property, the priority of
claims of Security holders shall be determined in accordance with
Section 7435. In a proceeding commenced under
Article 74 of the New York Insurance Law, claims for principal of,
interest on or Redemption Amount with
respect to the Securities constitute Class 7 claims under Section
7435, as currently in effect. If the
Superintendent approves a payment of principal of, interest on or
Redemption Amount with respect to the
Securities in an amount that is less than the full amount of
principal of, interest on and Redemption Amount
with respect to the Securities then scheduled to be paid in respect
of the Securities, payment of such partial
amount shall be made
pro
rata
among Security holders as their interests may appear.
(c) If a distribution is made to Security holders that, because of
this Paragraph, should not
have been made to them, the Security holders who receive the
distribution shall hold it in trust for holders of
Policy Claims, Indebtedness and Other Creditor Claims and pay it
over to them as their interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the
Paying Agent of any facts known
to the Issuer that would cause a payment of principal of, interest
on or Redemption Amount with respect to the
Securities to violate this Paragraph.
(e) This Paragraph defines the relative rights of security holders,
on the one hand, and
holders of any other claims, in accordance with Section 7435, on
the other hand. Nothing in this Security or
the Fiscal Agency Agreement shall: (i) impair, as between the
Issuer and security holders, the obligation of
the Issuer which is, subject to the Payment Restrictions, absolute
and unconditional to pay principal of and
interest on the Securities in accordance with their terms; (ii)
affect the relative rights of Security holders
and creditors of the Issuer, other than holders of Policy Claims,
Indebtedness or Other Creditor Claims; or
(iii) prevent the Fiscal Agent or any Security holder from
exercising any available remedies upon a breach by
the Issuer of its obligations hereunder, subject to the rights of
holders of Policy Claims, Indebtedness or
other Creditor Claims to receive distributions otherwise payable to
Securityholders.
14
(f) No right of any holder of Policy Claims, Indebtedness or Other
Creditor claims to enforce
the subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to
act by the Issuer or by its failure to comply with the terms of the
Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof, authorizes
and directs the Fiscal Agent
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided
in this Paragraph and appoints the Fiscal Agent its
attorney-in-fact for any and all such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i) all
existing or future
indebtedness of the Issuer for borrowed money, (ii) all existing or
future indebtedness for borrowed money of
other persons, the payment of which is guaranteed by the Issuer,
(iii) all existing or future obligations of
the Issuer under any agreement obligating the Issuer to cause
another person to maintain a minimum level of net
worth, or otherwise to ensure the solvency of such person and (iv)
any expense or any claim or amount, to the
extent that payment of principal of, interest on and Redemption
Amount with respect to the Securities is
required by law to be subordinated to the prior payment thereof.
Any indebtedness of the Issuer which by its
express terms is subordinated in right of payment to, or ranks
equally with, the Securities shall not
constitute Indebtedness. However, under current law the Issuer
cannot issue any indebtedness that by its terms
is subordinate to the Securities. In addition, any other surplus
notes or similar obligations of the Issuer
shall not constitute Indebtedness and will rank
pari
passu
with the Securities.
As used herein, "Policy Claims" shall mean all existing or future
claims of policyholders or
beneficiaries, as the case may be, under any and all existing or
future policies, endorsements, riders and
other contracts of insurance, annuity contracts, including, without
limitation, guaranteed investment
contracts, and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or
hereafter created, all claims under separate account agreements to
the extent such claims are not fully
discharged by the assets held by the Issuer in the applicable
separate accounts and all claims of The Life
Insurance Company Guarantee Corporation of New York or any other
guaranty corporation or association of New
York or any other jurisdiction, other than claims described in
clause (i) of the definition of "Other Creditor
Claims" below and claims for interest.
As used herein, "Other Creditor Claims" shall mean all other claims
that, pursuant to Section
7435, have priority over claims with respect to the Securities.
Under Section 7435 as currently in effect, such
other claims include: (i) claims with respect to the actual and
necessary costs and expenses of administration
incurred by a liquidator, conservator, rehabilitator or ancillary
rehabilitator under Section 7435; (ii) claims
with respect to the actual and necessary costs and expenses of
administration incurred by The Life Insurance
Guaranty Corporation or The Life Insurance Company Guara
