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FISCAL AGENCY AGREEMENT
between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
Issuer
and
THE CHASE MANHATTAN BANK, N.A.,
Fiscal Agent
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Dated as of December 1, 1995
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6.95% Surplus Notes scheduled to mature on December 1, 2005
7.70% Surplus Notes scheduled to mature on December 1, 2015
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TABLE OF CONTENTS
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Page
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1. The Securities.................................................. 1
(a) General................................................ 1
(b) Forms of Securities.................................... 1
(c) Book-Entry Provisions.................................. 2
(d) Denominations.......................................... 3
2. Fiscal Agent; Other Agents...................................... 3
3. Authentication.................................................. 4
4. Payment and Cancellation........................................ 4
(a) Payment................................................ 4
(b) Cancellation........................................... 5
5. Global Securities............................................... 5
6. Registration, Transfer and
Exchange of Securities........................................ 6
(a) General................................................ 6
(b) Transfers of Restricted Definitive
Securities........................................... 6
(c) Transfer of Global Securities and
Interests Therein.................................... 7
(d) Successive Registrations............................... 7
(e) Information............................................ 7
(f) Suspension............................................. 7
(g) Legends................................................ 7
(h) Repurchase............................................. 8
(i) Redemption............................................. 8
7. Delivery of Certain Information................................. 8
(a) Rule 144A Information.................................. 8
(b) Statutory Financial Statements......................... 8
8. Conditions of Fiscal Agent's Obligations........................ 8
(a) Compensation and Indemnity............................. 8
(b) Agency................................................. 9
(c) Advice of Counsel...................................... 9
(d) Reliance............................................... 9
(e) Interest in Securities, Etc............................ 9
(f) Non-Liability for Interest............................. 9
(g) Certifications......................................... 9
(h) No Implied Obligations.................................. 10
9. Resignation and Appointment of Successor......................... 10
(a) Fiscal Agent and Paying Agent........................... 10
(b) Resignation............................................. 10
(c) Successors.............................................. 10
(d) Acknowledgement......................................... 11
(e) Merger, Consolidation, Etc.............................. 11
10. Meetings and Amendments........................................... 11
(a) Calling of Meeting, Notice and Quorum.................... 11
(b) Approval................................................. 12
(c) Binding Nature of Amendments,
Notices, Notations, Etc................................ 13
(d) "Outstanding" Defined.................................... 14
11. Notes Constituting Indebtedness....................................... 14
12. Governing Law......................................................... 14
13. Notices............................................................... 14
14. Separability.......................................................... 15
15. Headings.............................................................. 15
16. Counterparts.......................................................... 15
EXHIBIT A FORM OF DEFINITIVE SECURITY.................................... A-1
EXHIBIT B FORM OF GLOBAL SECURITY........................................ B-1
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR
EXCHANGE OR TRANSFER OF RESTRICTED
DEFINITIVE SECURITY.......................................... C-1
(i)
FISCAL AGENCY AGREEMENT, dated as of December 1, 1995, between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a stock life
insurance corporation organized under the laws of the State of New York (the
"Issuer"), having its principal office at 787 Seventh Avenue, New York, New
York, and THE CHASE MANHATTAN BANK, N.A., a banking organization organized under
the laws of the United States, as Fiscal Agent (together with any successor as
Fiscal Agent hereunder, the "Fiscal Agent"). The Exhibits attached hereto shall
be deemed to be a part of this Agreement.
1. The Securities.
(a) General. This Agreement is made in respect of $600,000,000
aggregate principal amount of Surplus Notes of the Issuer, consisting of
$400,000,000 principal amount of 6.95% Surplus Notes scheduled to mature on
December 1, 2005 (the "Notes scheduled to mature 2005") and $200,000,000
principal amount of 7.70% Surplus Notes scheduled to mature on December 1, 2015
(the "Notes scheduled to mature 2015"). The Notes scheduled to mature 2005 and
the Notes scheduled to mature 2015 are sometimes referred to herein collectively
as the "Securities" or the "Notes", and each separately as a "Series" of
Securities or Notes. Claims based upon the Securities will rank below all
Indebtedness, Policy Claims and Other Creditor Claims (each as hereinafter
defined), in accordance with Section 7435 of the New York Insurance Law
(together with any successor provision, and as may be hereafter amended from
time to time, "Section 7435"). The payment by the Issuer of principal and
interest on the Securities shall be conditioned upon the payment restrictions
set forth in paragraphs 4 and 10 of the Securities (the "Payment Restrictions").
The Notes scheduled to mature 2005 are scheduled to mature on December 1, 2005
and the Notes scheduled to mature 2015 are scheduled to mature on December 1,
2015 (each such date, with respect to its respective series, the "Scheduled
Maturity Date"). Any reference herein to the term "scheduled maturity date" or
other date for the payment of principal of the Notes shall include the date upon
which any state or federal agency obtains an order or grants approval for the
rehabilitation, liquidation, conservation or dissolution of the Issuer.
(b) Forms of Securities. The Securities are being offered and
sold by the Issuer pursuant to a Purchase Agreement, dated December 13, 1995 (as
may be amended, the "Purchase Agreement"), between the Issuer and the Purchasers
named therein (the "Purchasers").
(I) Securities (other than global Securities, as hereinafter
defined) offered and sold pursuant to the Purchase Agreement to 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 Securities Act of 1933, as
amended (the "Act") ("Accredited Investors"), shall be issued in definitive,
fully registered form without interest coupons, substantially in the form of
Security attached as Exhibit A hereto, with such applicable legends as are
provided for in Exhibit A ("definitive Securities"). Upon transfer of any
definitive Security, registration of such transfer shall be effected in
accordance with Section 6 hereof.
(ii) Securities offered and sold in reliance on Rule 144A
("Rule 144A") under the Act pursuant to the Purchase Agreement shall be issued
in the form of global Securities (the "global Securities") in definitive, fully
registered form without interest coupons, substantially in the form of Security
attached as Exhibit B hereto, with such applicable legends as are provided for
in Exhibit B. Each such global Security shall be registered in the name of a
nominee of The Depository Trust Company (the "Depositary") and deposited with
the Fiscal Agent, at its New York office, as custodian for the Depositary, duly
executed by the Issuer and authenticated by the Fiscal Agent as hereinafter
provided. The aggregate principal amount of each global Security may from time
to time be increased or decreased by adjustments made on the records of the
Fiscal Agent, as custodian for the Depositary, as hereinafter provided.
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All Securities shall be issued substantially in the form of
Security attached hereto as either Exhibit A or B and shall be executed manually
or in facsimile on behalf of the Issuer by any two of its Chairman of the Board,
President, Chief Financial Officer, Vice Presidents, Treasurer, Assistant
Treasurer, Controller, Secretary or Assistant Secretary (the "Authorized
Officers"), notwithstanding that such officers, or any of them, shall have
ceased, for any reason, to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of any such
Security. The Securities (i) may also have such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement, and (ii) may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with this Agreement, any law or with any rules made
pursuant thereto or with the rules of any securities exchange, insurance
regulatory or other governmental agency or depositary therefor or as may,
consistently herewith, be determined by the Authorized Officers executing such
Securities, in each case (i) and (ii) as conclusively evidenced by their proper
execution of such Securities. All Securities shall be otherwise substantially
identical except as to maturity, interest rate, denomination and as otherwise
provided herein.
(c) Book-Entry Provisions. This Section 1(c) shall apply
to all Securities evidencing all or part of the global Securities that are
registered in the name of the Depositary or a nominee thereof.
The Issuer shall execute and the Fiscal Agent shall, in
accordance with this Section 1(c), authenticate and deliver one or more global
Securities as required to be issued pursuant to Section 1(b)(ii) hereof, which
(A) shall be registered in the name of the Depositary or its nominee, (B) shall
be delivered by the Fiscal Agent to the Depositary or pursuant to the
Depositary's instructions and (C) shall bear legends substantially to the
following effect:
"Unless this Security is presented by an authorized
representative of [insert name of Depositary] to the Issuer or
its agent for registration of transfer, exchange or payment,
and any Security issued in exchange for this Security or any
portion hereof is registered in the name of [insert name of
nominee of Depositary] or in such other name as is requested
by an authorized representative of [insert name of Depositary]
(and any payment is made to [insert name of nominee of
Depositary] or to such other entity as is requested by an
authorized representative of [insert name of Depositary]), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON OTHER THAN [insert name of Depositary] OR A
NOMINEE THEREOF IS WRONGFUL inasmuch as the registered owner
hereof, [insert name of nominee of Depositary], has an
interest herein."
"This Security is a global Security within the meaning of the
Fiscal Agency Agreement referred to hereinafter. This global
Security may not be exchanged, in whole or in part, for a
Security registered in the name of any person other than
[insert name of Depositary] or a nominee thereof, except in
the limited circumstances set forth in Section 5 of the Fiscal
Agency Agreement, and may not be transferred, in whole or in
part, except in accordance with the restrictions set forth in
Section 6(c) of the Fiscal Agency Agreement. Beneficial
interests in this global Security may not be transferred
except in accordance with Section 6(c) of the Fiscal Agency
Agreement."
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Neither any members of, or participants in, the Depositary
("Agent Members") nor any other persons on whose behalf Agent Members may act
shall have any rights under this Fiscal Agency Agreement with respect to any
global Security registered in the name of the Depositary or any nominee thereof,
or under any such global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Issuer, the Fiscal Agent and any agent of the
Issuer or the Fiscal Agent as the absolute owner and holder of such global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or
the Fiscal Agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be,
or impair, as between the Depositary, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary practices of
such persons governing the exercise of the rights of a holder of any Security.
(d) Denominations. The Securities and beneficial interests in
global Securities shall be issuable in minimum denominations of $250,000 and any
amount in excess thereof that is an integral multiple of $1,000.
2. Fiscal Agent; Other Agents.
The Issuer hereby appoints The Chase Manhattan Bank, N.A.,
acting through its corporate trust office at 4 Chase MetroTech Center, Brooklyn,
New York 11245 and payment office at 1 Chase Manhattan Plaza, Level 1B,
Institutional Trust Window, New York, New York 10081 (for payments, exchanges
and transfers) in the Borough of Manhattan, The City of New York (together, the
"Corporate Trust Office"), as fiscal agent of the Issuer in respect of the
Securities upon the terms and subject to the conditions herein set forth, and
The Chase Manhattan Bank, N.A. hereby accepts such appointment. The Chase
Manhattan Bank, N.A., and any successor or successors as such fiscal agent
qualified and appointed in accordance with Section 9 hereof, are herein called
the "Fiscal Agent". The Fiscal Agent shall have the powers and authority granted
to and conferred upon it in the Securities and hereby and such further powers
and authority to act on behalf of the Issuer as may be mutually agreed upon by
the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a copy of this
Agreement available for inspection during normal business hours at its Corporate
Trust Office. The Fiscal Agent or any Paying Agent (as defined below) shall also
act as Transfer Agent (as defined below). All of the terms and provisions with
respect to such powers and authority contained in the Securities are subject to
and governed by the terms and provisions hereof.
The Issuer may, at its discretion, appoint one or more agents (a "Paying
Agent" or "Paying Agents") for the payment, to the extent permitted under the
Payment Restrictions, of the principal of and any interest on the Securities,
and one or more agents (a "Transfer Agent" or "Transfer Agents") for the
transfer and exchange of Securities, at such place or places as the Issuer may
determine; provided, however, that the Issuer shall at all times maintain a
Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New
York (which Paying Agent and Transfer Agent may be the Fiscal Agent). The Issuer
hereby initially appoints the Fiscal Agent at its Corporate Trust Office as
principal Paying Agent, Transfer Agent, authenticating agent and securities
registrar, and the Fiscal Agent hereby accepts such appointment. Each Transfer
Agent shall act as a security registrar and there shall be kept at the office of
each Transfer Agent a register in which, subject to such reasonable regulations
as the Issuer may prescribe, the Issuer shall provide for the registration of
Securities and the registration of transfers of Securities. The Issuer shall
promptly notify the Fiscal Agent of the name and address of any other Paying
Agent or Transfer Agent appointed by it and will notify the Fiscal Agent of the
resignation or termination of any such Paying Agent or Transfer Agent. Subject
to the provisions of Section 9(c) thereof, 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
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Transfer Agent, as the case may be, and to the Fiscal Agent. The Issuer shall
cause notice of any resignation, termination or appointment of the Fiscal Agent
or any Paying Agent or Transfer Agent and of any change in the office through
which any such Agent will act to be provided to holders of Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities
duly executed on behalf of the Issuer for the purposes of the original issuance
of Securities, (i) to authenticate said Securities in an aggregate principal
amount not in excess of $400,000,000 in the case of the Notes scheduled to
mature 2005 and $200,000,000 in the case of the Notes scheduled to mature 2015,
and to deliver said Securities in accordance with the written order or orders of
the Issuer signed on its behalf by an Authorized Officer and (ii) thereafter to
authenticate and deliver Securities in accordance with the provisions therein
and hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint
by an instrument or instruments in writing one or more agents (which may include
itself) for the authentication of the Securities and, with such consent, vary or
terminate any such appointment upon written notice and approve any change in the
office through which any authenticating agent acts. The Issuer (by written
notice to the Fiscal Agent and the authenticating agent whose appointment is to
be terminated) may also terminate any such appointment at any time. The Fiscal
Agent hereby agrees to solicit written acceptances from the entities concerned
(in form and substance satisfactory to the Issuer) of such appointments. In its
acceptance of such appointment, each such authenticating agent shall agree to
act as an authenticating agent pursuant to the terms and conditions of this
Agreement.
4. Payment and Cancellation.
(a) Payment. For so long as the Fiscal Agent is acting as a Paying Agent
hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the
Fiscal Agent, in immediately available funds on or prior to 10:00 a.m., New York
time, on each date on which a payment of principal of or any interest on the
Securities shall be scheduled, as set forth in the text of the Securities, such
amount, in U.S. dollars, as is necessary to make such payment, and the Issuer
hereby authorizes and directs the Fiscal Agent from funds so provided to it to
make or cause to be made payment of the principal of and any interest, as the
case may be, on the Securities in the manner, at the times and for the purposes
set forth herein and in the text of said Securities; provided that (1) any
permitted payment of interest on the Securities may be made by check mailed to
the persons (the "registered owners") in whose names such Securities are
registered on the register maintained pursuant to Section 6 hereof at the close
of business on the record dates designated in the text of the Securities and (2)
the Issuer will not provide any such funds to the Fiscal Agent prior to such
time as the relevant payment of principal or interest is approved by the
Superintendent of Insurance of the State of New York (the "Superintendent").
Permitted payments of principal of or any interest on the Securities may be
made, in the case of a registered owner of at least $5,000,000 aggregate
principal amount of Securities, by wire transfer to an account maintained by the
payee with a bank as specified in the text of the Securities if such registered
owner so elects by giving notice to the Fiscal Agent, not less than 15 days (or
such fewer days as the Fiscal Agent may accept at its discretion) prior to the
date on which such payments are scheduled to be made, of such election and of
the account to which payment is to be made. Unless such designation is revoked,
any such designation made by such holder with respect to such Securities shall
remain in effect with respect to any future payments with respect to such
Securities payable to such holder. The Issuer shall pay any reasonable
administrative costs in connection with making any such payments. The Fiscal
Agent shall arrange directly with any other Paying Agent who may have been
appointed by the Issuer pursuant to the provisions of Section 2 hereof for the
payment, subject to the Payment Restrictions, from funds so paid by the Issuer
of the principal of and any interest on the Securities in the manner, at the
times and for the purposes set forth herein and in the text of said Securities.
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Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent
funds for the payment, subject to the Payment Restrictions, of the principal
thereof and interest payable thereon under an agreement with respect to such
funds containing substantially the same terms and conditions set forth in this
Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no
responsibility with respect to any funds so provided by the Issuer to any such
Paying Agent.
Payments of principal of and interest on the Securities shall
be made in the manner set forth in the Securities, including the Payment
Restrictions set forth therein.
(b) Cancellation. All Securities delivered to the Fiscal Agent
(or any other Agent appointed by the Issuer pursuant to Section 2 hereof) for
payment, registration of transfer or exchange as provided herein or in the
Securities shall be marked "cancelled" and, in the case of any other such Agent,
forwarded to the Fiscal Agent. All such Securities shall be destroyed by the
Fiscal Agent or such other person as may be jointly designated by the Issuer and
the Fiscal Agent, which shall thereupon furnish certificates of such destruction
to the Issuer.
5. Global Securities.
(a) Notwithstanding any other provisions of this Agreement or
the Securities, a global Security shall not be exchanged in whole or in part for
a Security registered in the name of any person other than the Depositary or one
or more nominees thereof, provided that a global Security may also be exchanged
for Securities registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has notified the Issuer that it
is unwilling or unable to continue as Depositary for such global Security or
such Depositary has ceased to be a "clearing agency" registered under the
Securities Exchange Act of 1934 (as may be hereafter amended from time to time,
the "Exchange Act"), (ii) an event described in paragraph 14(a) or the first
sentence of paragraph 14(b) of the Securities has occurred and is continuing
with respect to the Securities, (iii) a request for certificates has been made
upon 60 days' prior written notice given to the Fiscal Agent in accordance with
the Depositary's customary procedures and a copy of such notice has been
received by the Issuer from the Fiscal Agent, or (iv) the holder of an interest
(other than the initial purchaser thereof) in such global Security has notified
the Fiscal Agent and registrar in writing that it is transferring such
beneficial interest to an Accredited Investor who is not a "qualified
institutional buyer" within the meaning of Rule 144A, who is required to hold
its beneficial interest in the Securities in the form of a definitive Security.
Any global Security exchanged pursuant to clause (i) above shall be so exchanged
in whole and not in part and any global Security exchanged pursuant to clause
(ii), (iii) or (iv) above may be exchanged in whole or from time to time in part
as directed by the Depositary. Any Security issued in exchange for a global
Security or any portion thereof shall be a global Security, unless such Security
is registered in the name of a person other than the Depositary or a nominee
thereof.
(b) Securities issued in exchange for a global Security or any portion
thereof in accordance with Section 5(a) shall be issued in definitive, fully
registered form, without interest coupons, shall have an aggregate principal
amount equal to that of such global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the applicable
legends provided for herein, including, except as otherwise provided by Section
6(g), the legend regarding transfer restrictions applicable to the global
Security set forth on the form of Security attached as Exhibit B hereto. Any
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,
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either such global Security shall be so surrendered for exchange or, if the
Fiscal Agent is acting as custodian for the Depositary or its nominee with
respect to such global Security, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Fiscal Agent. Upon any such
surrender or adjustment, the Fiscal Agent shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(c) Subject to the provisions of Section 1(c) above, the
registered holder may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action which a holder is entitled to take under this Fiscal
Agency Agreement or the Securities.
(d) In the event of the occurrence of any of the events
specified in paragraph (a) of this Section 5, the Issuer will promptly make
available to the Fiscal Agent a reasonable supply of certificated Securities in
definitive, fully registered form without interest coupons.
6. Registration, Transfer and
Exchange of Securities.
(a) General. The Fiscal Agent, as agent of the Issuer for this
purpose, shall maintain at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, a register of Securities for the registration
of Securities and the transfers and exchanges thereof. Subject to the provisions
of this Section 6, upon presentation for transfer or exchange of any Security at
the office of any Transfer Agent accompanied by a written instrument of transfer
or exchange in the form approved by the Issuer (it being understood that, until
notice to the contrary is given to holders of Securities, the Issuer shall be
deemed to have approved the form of instrument of transfer or exchange, if any,
printed on any Security), executed by the registered holder, in person or by
such holder's attorney thereunto duly authorized in writing, such Security shall
be transferred upon the register for the Securities, and a new Security shall be
authenticated and issued in the name of the transferee.
(b) Transfers of Restricted Definitive Securities. If a holder
of definitive, certificated Securities of any Series that bear or are required
to bear the legends set forth in the form of Security attached as Exhibit A
hereto ("Restricted Definitive Securities") wishes at any time to transfer such
Restricted Definitive Securities or to exchange such Restricted Definitive
Securities, such transfer or exchange may be effected only in accordance with
the provisions of this Section 6(b). Upon the receipt by the Fiscal Agent, as
Transfer Agent, at its office in The City of New York of (i) a Restricted
Definitive Security accompanied by a written and executed instrument of transfer
or exchange as provided in Section 6(a) and (ii) the following additional
information and documents, as applicable:
(1) if such Restricted Definitive Security is owned by the
holder thereof and is being exchanged, without transfer, or if such
Restricted Definitive Security is being transferred pursuant to an
exemption from registration in accordance with Rule 144A, Rule 144 or
Regulation S under the Act, a certification from such holder to that
effect, substantially in the form of Exhibit C hereto; or
(2) if the Restricted Definitive Security being transferred or
exchanged contains a restrictive legend, certification to the effect that such
transfer or exchange is in accordance with the restrictions contained in such
legend, if required by the Fiscal Agent, the Fiscal Agent shall register the
transfer of such Restricted Definitive Security or exchange such Restricted
Definitive Security for an equal principal amount of Restricted Definitive
Securities of other authorized denominations.
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To permit registrations of transfers and exchanges, the Issuer
shall execute and the Fiscal Agent (or an authenticating agent appointed
pursuant to Section 2) shall authenticate and deliver definitive Securities at
the Fiscal Agent's or any Transfer Agent's request. No service charge shall be
made for any registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any transfer tax or other governmental
charge payable in connection with any registration of transfer or exchange.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer, subject to
the Payment Restrictions, evidencing the same debt, and the applicable
provisions of this Fiscal Agency Agreement shall apply equally thereto, as the
Securities surrendered upon such registration of transfer or exchange.
(c) Transfer of Global Securities and Interests Therein. A
global Security may not be transferred, in whole or in part, to any person other
than the Depositary or a nominee thereof, and no such transfer to any such other
person may be registered; provided that this paragraph (c) shall not prohibit
any transfer of a Security that is issued in exchange for a global Security but
is not itself a global Security. No transfer of a Security to any person shall
be effective under this Agreement or the Securities unless and until such
Security has been registered in the name of such person.
(d) Successive Registrations. Successive registrations and
registrations of transfers and exchanges as aforesaid may be made from time to
time as desired, and each such registration shall be noted on the Security
register. No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Fiscal Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith and any other amounts required to be paid by the provisions of the
Securities.
(e) Information. Any Transfer Agent appointed pursuant to
Section 2 hereof shall provide to the Fiscal Agent such information as the
Fiscal Agent may reasonably require in connection with the delivery by such
Transfer Agent of Securities upon transfer or exchange of Securities.
(f) Suspension. No Transfer Agent shall be required to make
registrations of transfer or exchange of Securities during any periods
designated in the text of the Securities as periods during which such
registration of transfer and exchanges need not be made.
(g) Legends. If Securities are issued upon the transfer, exchange or
replacement of Securities not bearing the legends required, as applicable, by
the form of Security attached as Exhibit A or Exhibit B hereto (collectively,
the "Legend"), the Securities so issued shall not bear the Legend. If Securities
are issued upon the transfer, exchange or replacement of Securities bearing the
Legend, or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is 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
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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) Repurchase. With the prior approval of the Superintendent,
the Issuer and any subsidiary of the Issuer may at any time purchase Securities
in the open market or otherwise at any price, for its own account or any
insurance separate account. Any Security so purchased by the Issuer or any such
subsidiary for its own account shall be promptly surrendered to the Fiscal Agent
for cancellation and shall not thereafter be reissued or resold.
(i) Redemption. The Notes scheduled to mature 2005 and the
Notes scheduled to mature 2015 may not beredeemed at the option of the Issuer
or any holder of such Notes.
7. Delivery of Certain Information.
(a) Rule 144A Information. At any time when the Issuer is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request of a holder
of a definitive Security or the holder of a global Security or a beneficial
interest in a global Security, the Issuer shall promptly furnish or cause to be
furnished "Rule 144A Information" (as defined below) to such holder, or to a
prospective purchaser of such Security or interest designated by such holder, in
order to permit compliance by such holder with Rule 144A under the Act in
connection with the resale of such Security by such holder. "Rule 144A
Information" shall be such information as is specified pursuant to paragraph
(d)(4) of Rule 144A (or any successor provision thereto), as such provisions (or
successor provision) may be amended from time to time.
(b) Statutory Financial Statements. Upon the written request
of a holder of a definitive Security or the holder of a global Security or a
beneficial interest in a global Security, the Issuer shall promptly furnish or
cause to be furnished to such holder one copy of the annual and quarterly
statutory-basis financial statements of the Issuer as filed by the Issuer with
the New York Department of Insurance.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligations herein set forth upon
the terms and conditions hereof, including the following, to all of which the
Issuer agrees and all of which are applicable to the Securities and the holders
from time to time thereof:
(a) Compensation and Indemnity. The Fiscal Agent shall be
entitled to reasonable compensation as agreed with the Issuer for all services
rendered by it, and the Issuer agrees promptly to pay such compensation and to
reimburse the Fiscal Agent for the reasonable out-of-pocket expenses (including
reasonable counsel fees and expenses) incurred by it in connection with or
arising out of its services hereunder, or the issuance of the Securities and
their offering and sale. The Issuer also agrees to indemnify the Fiscal Agent
for, and to hold it harmless against, any loss, damages, claim, liability or
expense, incurred without negligence or bad faith, arising out of or in
connection with its acting as Fiscal Agent hereunder, as well as the reasonable
costs and expenses of defending against any claim of liability in the premises.
The obligations of the Issuer under this Section 8(a) shall survive payment of
all the Securities or the resignation or removal of the Fiscal Agent.
-8-
(b) Agency. In acting under this Agreement and in connection
with the Securities, the Fiscal Agent is acting solely as agent of the Issuer
and does not assume any responsibility for the correctness of the recitals in
the Securities (except for the correctness of the statement in its certificate
of authentication thereon) or any obligation or relationship of agency or trust,
for or with any of the owners or holders of the Securities, except that all
funds held by the Fiscal Agent for the payment of principal of and any interest
on the Securities, to the extent permitted under the Payment Restrictions, shall
be held in trust for such owners or holders, as the case may be, as set forth
herein and in the Securities; provided, however, that monies held in respect of
the Securities remaining unclaimed at the end of two years after such principal
and such interest shall have become payable in accordance with the Payment
Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies
sufficient therefor shall have been duly made available for payment shall,
together with any interest made available for payment thereon, be repaid to the
Issuer. Upon such repayment, the aforesaid trust with respect to the Securities
shall terminate and all liability of the Fiscal Agent and Paying Agents with
respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying Agent
or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may
consult with their respective counsel or other independent counsel satisfactory
to them, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by them
hereunder in good faith and without negligence and in accordance with such
opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or
Transfer Agent appointed by the Issuer pursuant to Section 2 hereof each shall
be protected and shall incur no liability for or in respect of any action taken
or thing suffered by it in reliance upon any Security, notice, direction,
consent, certificate, affidavit, statement, or other paper or document believed
by it, in good faith and without negligence, to be genuine and to have been
passed upon or signed by the proper parties.
(e) Interest in Securities, Etc. The Fiscal Agent, any Paying
Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof and
their respective officers, directors and employees may become the owners of, or
acquire any interest in, any Securities, with the same rights that they would
have if they were not the Fiscal Agent, such other Paying Agent or Transfer
Agent or such person, and may engage or be interested in any financial or other
transaction with the Issuer, and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Securities or other obligations of the
Issuer, as freely as if they were not the Fiscal Agent, such other Paying Agent
or Transfer Agent or such person.
(f) Non-Liability for Interest. Subject to any agreement
between the Issuer and the Fiscal Agent to the contrary, the Fiscal Agent shall
not be under any liability for interest on monies at any time received by it
pursuant to any of the provisions of this Agreement or the Securities.
(g) Certifications. Whenever in the administration of this
Agreement the Fiscal Agent shall deem it desirable that a matter of fact be
proved or established prior to taking, suffering or omitting any action
hereunder, the Fiscal Agent (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith or negligence on its part, rely
upon a certificate signed by an Authorized Officer and delivered to the Fiscal
Agent as to such matter of fact.
-9-
(h) No Implied Obligations. The duties and obligations of the
Fiscal Agent and the Issuer with respect to matters governed by this Agreement
shall be determined solely by the express provisions hereof, and neither the
Fiscal Agent nor the Issuer shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement and the
Securities, as applicable, and no implied covenants or obligations shall be read
into this Agreement or the Securities against either the Fiscal Agent or the
Issuer. Nothing in this Agreement shall be construed to require the Fiscal Agent
to advance or expend its own funds.
9. Resignation and Appointment of Successor.
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for the
benefit of the holders from time to time of the Securities, that there shall at
all times be a Fiscal Agent hereunder which shall be a bank or trust company
organized and doing business under the laws of the United States of America or
the State of New York, in good standing and having an established place of
business in the Borough of Manhattan, The City of New York, and authorized under
such laws to exercise corporate trust powers, until all the Securities
authenticated and delivered hereunder (i) shall have been delivered to the
Fiscal Agent for cancellation or (ii) have become payable, with the approval of
the Superintendent, and monies sufficient to pay the full principal of and any
interest remaining unpaid on the Securities shall have been made available for
payment and either paid or returned to the Issuer as provided herein and in such
Securities.
(b) Resignation. The Fiscal Agent may at any time resign by
giving written notice to the Issuer of such intention on its part, specifying
the date on which its desired resignation shall become effective, provided that
such date shall not be less than 60 days from the date on which such notice is
given, unless the Issuer agrees to accept shorter notice. The Fiscal Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed on behalf of the Issuer and specifying such removal and the date
when it shall become effective. Notwithstanding the dates of effectiveness of
resignation or removal, as the case may be, to be specified in accordance with
the preceding sentences, such resignation or removal shall take effect only upon
the appointment by the Issuer, as hereinafter provided, of a successor Fiscal
Agent (which, to qualify as such, shall for all purposes hereunder be a bank or
trust company organized and doing business under the laws of the United States
of America or of the State of New York, in good standing and having and acting
through an established place of business in the Borough of Manhattan, The City
of New York, authorized under such laws to exercise corporate trust powers and
having a combined capital and surplus in excess of $50,000,000) and the
acceptance of such appointment by such successor Fiscal Agent. Upon its
resignation or removal, the Fiscal Agent shall be entitled to payment by the
Issuer pursuant to Section 8 hereof of compensation for services rendered and to
reimbursement of reasonable out-of-pocket expenses incurred hereunder.
(c) Successors. In case at any time the Fiscal Agent (or any Paying Agent
if such Paying Agent is the only Paying Agent located in a place where, by the
terms of the Securities or this Agreement, the Issuer is required to maintain a
Paying Agent) shall resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary
petition in bankruptcy or make an assignment for the benefit of its creditors or
consent to the appointment of a receiver of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they severally mature, or if a receiver of it or of all or any substantial part
of its property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of applicable
receivership, bankruptcy, insolvency or other similar legislation, or if any
public officer shall take charge or control of it or of its property or affairs,
for the purpose of rehabilitation, conservation or liquidation, a successor
Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid, shall
be appointed by the Issuer by an instrument in writing, filed with the successor
-10-
Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal
Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of
a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by
such successor of such appointment, the Fiscal Agent or Paying Agent, as the
case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the
case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as
the case may be, shall have been so appointed by the Issuer and shall have
accepted appointment as hereinafter provided, and, in the case of such other
Paying Agent, if such other Paying Agent is the only Paying Agent located in a
place where, by the terms of the Securities or this Agreement, the Issuer is
required to maintain a Paying Agent, then any holder of a Security who has been
a bona fide holder of a Security for at least six months (which Security, in the
case of such other Paying Agent, is referred to in this sentence), on behalf of
himself and all others similarly situated, or the Fiscal Agent, may petition any
court of competent jurisdiction for the appointment of a successor fiscal or
paying agent, as the case may be. The Issuer shall give prompt written notice to
each other Paying Agent of the appointment of a successor Fiscal Agent.
(d) Acknowledgement. Any successor Fiscal Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to the
Issuer an instrument accepting such appointment hereunder, and thereupon such
successor Fiscal Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Fiscal Agent hereunder and all provisions hereof shall be binding on such
successor Fiscal Agent, and such predecessor, upon payment of its compensation
and reimbursement of its disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Fiscal Agent
shall be entitled to receive, all monies, securities, books, records or other
property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, Etc. Any bank or trust company into
which the Fiscal Agent hereunder may be merged, or resulting from any merger or
consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal
Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Fiscal Agent, provided that it shall be qualified as aforesaid,
shall be the successor Fiscal Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
10. Meetings and Amendments.
(a) Calling of Meeting, Notice and Quorum. A meeting of holders of
Securities of a Series may be called at any time and from time to time to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement or the Securities of such
Series to be made, given or taken by holders of Securities of such Series or to
modify, amend or supplement the terms of the Securities of such Series or this
Agreement as hereinafter provided, and subject to the requirement hereinafter
set forth that the Issuer and the Fiscal Agent may, only with the prior approval
of the Superintendent, modify, amend or supplement this Fiscal Agency Agreement
or the terms of the Securities or give consents or waivers or take other actions
with respect thereto. The Fiscal Agent may at any time call a meeting of holders
of Securities of such Series for any such purpose to be held at such time and at
such place in the Borough of Manhattan, The City of New York as the Fiscal Agent
shall determine. Notice of every meeting of holders of Securities of a Series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given as provided in the
terms of the Securities of such Series, not less than 30 nor more than 60 days
prior to the date fixed for the meeting (provided that,in the case of any
meeting to be reconvened after adjournment for lack of a quorum, such notice
-11-
shall be so given not less then 15 nor more than 60 days prior to the date fixed
for such meeting). In case at any time the Issuer or the holders of at least 10%
in aggregate principal amount of the Outstanding Securities (as defined in
subsection (d) of this Section) of a Series shall have requested the Fiscal
Agent to call a meeting of the holders of Securities of such Series for any such
purpose, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, the Fiscal Agent shall call such meeting
for such purposes by giving notice thereof.
To be entitled to vote at any meeting of holders of Securities
of a Series, a person shall be a holder of Outstanding Securities of such Series
or a person duly appointed by an instrument in writing as proxy for such a
holder. The persons entitled to vote a majority in principal amount of the
Outstanding Securities of a Series shall constitute a quorum. At the reconvening
of any meeting adjourned for a lack of a quorum, the persons entitled to vote
25% in principal amount of the Outstanding Securities of a Series shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. The Fiscal Agent may make such reasonable and customary
regulations consistent herewith as it shall deem advisable for any meeting of
holders of Securities of a Series with respect to the proof of the appointment
of proxies in respect of holders of Securities of such Series, the record date
for determining the registered owners of Securities of such Series who are
entitled to vote at such meeting (which date shall be designated by the Fiscal
Agent and set forth in the notice calling such meeting hereinabove referred to
and which shall be not less than 15 nor more than 60 days prior to such meeting,
provided that nothing in this paragraph shall be construed to render ineffective
any action taken by holders of the requisite principal amount of Outstanding
Securities of a Series on the date such action is taken), the adjournment and
chairmanship of such meeting, the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.
(b) Approval. (i) At any meeting of holders of Securities of a Series duly
called and held as specified above, upon the affirmative vote, in person or by
proxy thereunto duly authorized in writing, of the holders of not less than a
majority in aggregate principal amount of the Securities of the Series then
Outstanding represented at such meeting, or (ii) with the written consent of the
holders of not less than a majority in aggregate principal amount of the
Securities of such Series then Outstanding, in each case (i) or (ii) the Issuer
and the Fiscal Agent may, with the prior approval of the Superintendent, modify,
amend or supplement the terms of the Securities of such Series or this Agreement
in any way, and the holders of Securities of such Series may make, take or give
any request, demand, authorization, direction, notice, consent, waiver
(including waiver of future compliance or past failure to perform) or other
action provided by this Agreement or the Securities of such Series to be made,
given or taken by holders of Securities of such Series; provided, however, that
any such action, modification, amendment or supplement to be effected pursuant
to clause (i) of this subsection (b) shall be approved by the holders of not
less than 25% of the aggregate principal amount of Securities of such Series
then Outstanding; and provided, further, that no such action, modification,
amendment or supplement, however effected, may, without the consent of the
holder of each Security of such Series affected thereby, (A) change the
Scheduled Interest Payment Date or Scheduled Maturity Date (in each case, as
defined in the Securities of such Series) of the principal of or any installment
of interest on any Security of such Series, (B) reduce the principal amount of
any Security of such Series or the interest rate thereon, (C) change the
currency in which, or the required place at which, payment with respect to
interest or principal in respect of the Securities of such Series is payable,
(D) change the Issuer's obligations under Section 7(a) hereof in any manner
adverse to the interests of the holder of a Security of such Series, (E) impair
the right of a holder of a Security of such Series to institute suit for the
enforcement of any payment, if such payment is permitted under the Payment
Restrictions, on or with respect to any Security of such Series, (F) reduce the
-12-
above-stated percentage of the principal amount of Outstanding Securities of
such Series the vote or consent of the holders of which is necessary to modify,
amend or supplement this Agreement or the terms and conditions of the Securities
of such Series or to make, take or give any request, demand, authorization,
direction, notice, consent, waiver (including waiver of any future compliance or
past failure to perform) or other action provided hereby or thereby to be made,
taken or given, (G) reduce the percentage in aggregate principal amount of
Outstanding Securities of such Series that constitutes the quorum required at
any meeting of holders of Securities of such Series at which a resolution is
adopted, (H) change the restrictions on payment set forth in the Securities in a
manner adverse to such holder, or (I) change the provisions of Paragraph 10 of
the Securities in a manner adverse to such holder.
The Issuer and the Fiscal Agent may, with the prior approval
of the Superintendent, without the vote or consent of any holder of Securities,
amend this Agreement or the Securities of a Series for the purpose of (a) adding
to the covenants of the Issuer for the benefit of the holders of Securities of
such Series, or (b) surrendering any right or power conferred upon the Issuer,
or (c) securing the Securities of such Series or (d) evidencing the succession
of another corporation to the Issuer and the assumption by such successor of the
covenants and obligations of the Issuer herein and in the Securities of such
Series as permitted by this Agreement and the Securities of such Series, or (e)
modifying the restrictions on, and procedures for, resale and other transfers of
the Securities of such Series to the extent required by any change in applicable
law or regulation, or the interpretation thereof, or in practices relating to
the resale or transfer of restricted securities generally, or (f) accommodating
the issuance, if any, of Securities in book-entry or certificated form and
matters related thereto which do not adversely affect the interest of any
Security holder in any material respect, or (g) curing any ambiguity or
correcting or supplementing any defective provision contained herein or in the
Securities of such Series in a manner which does not adversely affect the
interest of any Security holder in any material respect, or (h) effecting any
amendment which the Issuer and the Fiscal Agent may determine is necessary or
desirable and which shall not adversely affect the interest of any Security
holder.
It shall not be necessary for the vote or consent of the
holders of Securities to approve the particular form of any proposed
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action, but it shall be sufficient if such vote
or consent shall approve the substance thereof.
The Fiscal Agent may request an opinion of counsel in
connection with any amendment or supplement entered into hereunder.
(c) Binding Nature of Amendments, Notices, Notations, Etc. Any instrument
given by or on behalf of any holder of a Security of a Series in connection with
any consent to or vote for any such modification, amendment, supplement,
request, demand, authorization, direction, notice, consent, waiver or other
action shall be irrevocable once given and shall be conclusive and binding on
all subsequent holders of such Security or any Security issued directly or
indirectly in exchange or substitution therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action taken, made or given in accordance with
Section 10(b) hereof shall be conclusive and binding on all holders of
Securities of a Series, whether or not they have given such consent or cast such
vote or were present at any meeting, and whether or not notation of such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action is made upon the Securities of such
Series. Notice of any modification or amendment of, supplement to, or request,
demand, authorization, direction, notice, consent, waiver or other action with
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respect to the Securities of a Series or this Agreement (other than for purposes
of curing any ambiguity or of curing, correcting or supplementing any defective
provision hereof or thereof) shall be given to each holder of Securities
affected thereby, in all cases as provided in the Securities of such Series.
Securities of a Series authenticated and delivered after the
effectiveness of any such modification, amendment, supplement, request, demand,
authorization, direction, notice, consent, waiver or other action may bear a
notation in the form approved by the Fiscal Agent and the Issuer as to any
matter provided for in such modification, amendment, supplement, request,
demand, authorization, direction, notice, consent, waiver or other action. New
Securities of such Series modified to conform, in the opinion of the Fiscal
Agent and the Issuer, to any such modification, amendment, supplement, request,
demand, authorization, direction, notice, consent, waiver or other action taken,
made or given in accordance with Section 10(b) hereof may be prepared by the
Issuer, authenticated by the Fiscal Agent and delivered in exchange for
Outstanding Securities of such Series.
(d) "Outstanding" Defined. For purposes of the provisions of
this Agreement and the Securities, any Security authenticated and delivered
pursuant to this Agreement shall, as of any date of determination, be deemed to
be "Outstanding", except:
(i) Securities theretofore cancelled by the Fiscal Agent
or delivered to the Fiscal Agent for cancellation;
(ii) Securities which have become payable, to the extent
permitted under the Payment Restrictions, at the Scheduled Maturity
Date or otherwise, and with respect to which, in each case, monies
sufficient to pay the principal thereof and any interest thereon shall
have been paid; and
(iii) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and delivered pursuant
to this Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities of a Series are present at a meeting
of holders of Securities of such Series for quorum purposes or have consented to
or voted in favor of any request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or supplement hereunder, Securities of
such Series owned directly or indirectly by the Issuer, or any affiliate of the
Issuer, shall be disregarded and deemed not to be Outstanding.
11. Notes Constituting Indebtedness.
Each holder of a Note and each Person that acquires a
beneficial interest in a Note, by its acceptance of a Note or a beneficial
interest therein, and the Company agree that for United States Federal, state
and local tax purposes it is intended that the Notes constitute indebtedness.
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,
WITHOUT REFERENCE TO CONFLICT OF LAW PROVISIONS.
13. Notices.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing, shall specify this Agreement by name
and date and shall identify the Securities, and if sent to the Fiscal Agent
shall be delivered, transmitted by facsimile or telegraphed to it at The Chase
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Manhattan Bank, N.A., 4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York
11245, Attention: James D. Heaney, Corporate Trust Administration, telephone:
(718) 242-7276, fax: (718) 242-5885, and if sent to the Issuer shall be
delivered, transmitted by facsimile or telegraphed to it at The Equitable Life
Assurance Society of the United States, 787 Seventh Avenue, New York, New York
10019, Attention: Treasurer, telephone: (212) 554-1234, fax: (212) 554-4771. The
foregoing addresses for notices or communications may be changed by written
notice given by the addressee to each party hereto, and the addressee's address
shall be deemed changed for all purposes from and after the giving of such
notice.
If the Fiscal Agent shall receive any notice or demand
addressed to the Issuer by the holder of a Security, the Fiscal Agent shall
promptly forward such notice or demand to the Issuer.
14. Separability.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
15. Headings.
The section headings herein are for convenience of reference
only and shall not affect the construction hereof.
16. Counterparts.
This Agreement may be executed in one or more counterparts,
and by each party separately on a separate counterpart, and each such
counterpart when executed and delivered shall be deemed to be an original. Such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Fiscal Agency Agreement as of the date first above written.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
By:
--------------------------------
Name:
Title:
Attest:
--------------------------------
-15-
EXHIBIT A
FORM OF DEFINITIVE SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS MAY BE
HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
[INCLUDE IF SECURITY IS A DEFINITIVE SECURITY OR SECURITY
ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(G) OF THE FISCAL
AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED)] -- THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE ACT AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL
INVESTOR (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE ACT, OR (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT PROVIDED BY RULE 144 (IF AVAILABLE)
AND (B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO
AN INSTITUTION THAT IS AN ACCREDITED INVESTOR, AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7), OR, IF THE EQUITY OWNERS THEREOF ALL MEET ONE OR MORE OF THE
FOREGOING CRITERIA, RULE 501(a)(8), UNDER THE ACT, IN EACH CASE, IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THE
HOLDER OF THIS SECURITY ALSO UNDERSTANDS AND AGREES THAT (A) THIS SECURITY MAY
ONLY BE TRANSFERRED IN MINIMUM PRINCIPAL AMOUNTS OF $250,000 AND (B) SUCH HOLDER
WILL NOTIFY ANY PERSON WHO PURCHASES THIS SECURITY FROM IT OF THE RESTRICTIONS
REFERRED TO HEREIN. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144, IF ANY, FOR RESALES OF THIS
NOTE.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
ISSUER THAT, IF THE HOLDER PROPOSES TO SELL OR TRANSFER THIS SECURITY TO ANY
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED), THE HOLDER WILL COMPLY WITH THE RESTRICTIONS
SET FORTH IN PARAGRAPH 9 HEREOF.
PAYMENTS OF PRINCIPAL AND INTEREST ON THIS SECURITY MAY ONLY
BE MADE OUT OF THE ISSUER'S FREE AND DIVISIBLE SURPLUS AND WITH THE PRIOR
APPROVAL OF THE SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK (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.
A-1
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
__% Surplus Note scheduled to mature on December 1, 20__
CUSIP NO.:__________
No. R-____ $___________
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
stock life insurance company organized under the laws of the State of New York
(herein called the "Issuer"), for value received, hereby promises to pay,
subject to the approval of the Superintendent pursuant to Section 1307, to
______________________, or registered assigns, the principal sum of
______________ United States dollars ($_________) on December 1, 20__ (the
"Scheduled Maturity Date"), and to pay interest thereon, subject to the approval
of the Superintendent pursuant to Section 1307, from December 1, 1995 or from
the most recent Scheduled Interest Payment Date to which interest has been paid
or duly provided for, semi-annually in arrears on June 1 and December 1 in each
year, commencing June 1, 1996 (each a "Scheduled Interest Payment Date"), at the
rate of ___% per annum, until the principal hereof is paid or duly provided for.
This Security is not subject to redemption prior to the Scheduled Maturity Date.
The date upon which any state or federal agency obtains an order or grants
approval for the rehabilitation, liquidation, conservation or dissolution of the
Issuer shall also be deemed to be the scheduled maturity date. As specified on
the reverse hereof, all payments of principal of or interest on this Security
may be made only out of the Issuer's free and divisible surplus and only with
the prior approval of the Superintendent. The interest so payable, and
punctually paid or duly provided for, on any Scheduled Interest Payment Date
shall be paid, in accordance with the terms of the Fiscal Agency Agreement
hereinafter referred to, to the person (the "registered holder") in whose name
this Security (or one or more predecessor Securities) is registered at the close
of business on the May 15 or the November 15 (whether or not a Business Day (as
defined on the reverse hereof), as the case may be (each a "Regular Record
Date"), next preceding such Scheduled Interest Payment Date. Interest on the
Securities shall be calculated on the basis of a 360-day year of twelve 30-day
months. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the registered holder on such Regular Record
Date and shall be paid to the person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a special
record date for the payment of such interest to be fixed by the Issuer, notice
whereof shall be given to registered holders of the Securities not less than 15
days prior to such special record date.
Principal of this Security shall be payable against surrender hereof at the
corporate trust office of the Fiscal Agent hereinafter referred to and at the
offices of such other Paying Agents as the Issuer shall have appointed pursuant
to the Fiscal Agency Agreement. Payments of principal of the Securities shall be
made only against surrender of the Securities. Payments of interest on this
Security may be made, in accordance with the foregoing and subject to applicable
laws and regulations, by check mailed on or before the scheduled payment date of
such payment to the person entitled thereto at such person's address appearing
on the aforementioned register. In the case of a registered holder of at least
$5,000,000 aggregate principal amount of Securities, payments of principal or
interest may be made by wire transfer to an account maintained by the payee with
a bank if such registered holder so elects by giving notice to the Fiscal Agent,
not less than 15 days (or such fewer days as the Fiscal Agent may accept at its
discretion) prior to the applicable scheduled payment date or scheduled maturity
date hereof, of such election and of the account to which payments are to be
made. Unless such designation is revoked, any such designation made by such
holder with respect to such Securities shall remain in effect with respect to
any future payments with respect to such Securities payable to such holder. The
Issuer agrees that until this Security has been delivered to the Fiscal Agent
for cancellation, or monies sufficient to pay the full principal of and interest
remaining unpaid on this Security have been made available for payment and
either paid or returned to the Issuer as provided herein, it will at all times
maintain offices or agencies in the Borough of Manhattan, The City of New York
for the payment of the principal of and interest on the Securities as herein
provided.
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Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security may be executed by the Issuer by manual or
facsimile signatures, and such signatures may be executed on separate
counterparts.
Unless the certificate of authentication hereon has been
executed by the Fiscal Agent by manual signature, this Security shall not be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
This is one of the Securities referred to in the
within-mentioned Fiscal Agency Agreement.
THE CHASE MANHATTAN BANK, N.A.
as Fiscal Agent
By:
--------------------------
Authorized Officer
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FORM OF REVERSE
1. This Security is one of a duly authorized issue of ___%
Surplus Notes scheduled to mature on December 1, 20__ of the Issuer (herein
called the "Securities" or "Notes"), limited in aggregate principal amount to
$[___,000,000]. The Issuer and The Chase Manhattan Bank, N.A. (the "Fiscal
Agent") have entered into a Fiscal Agency Agreement, dated as of December 1,
1995 (such instrument, as it may be duly amended from time to time, is herein
called the "Fiscal Agency Agreement"), which provides for the mechanism for
issuing the Securities and, inter alia, sets forth certain duties of the Fiscal
Agent in connection therewith. As used herein, the term "Fiscal Agent" includes
any successor fiscal agent under the Fiscal Agency Agreement. Copies of the
Fiscal Agency Agreement are on file and available for inspection at the
corporate trust office of the Fiscal Agent in the Borough of Manhattan, The City
of New York. Holders of Securities are referred to the Fiscal Agency Agreement
for a statement of the terms thereof, including those relating to transfer,
payment, exchanges and certain other matters. The Fiscal Agent or any Paying
Agent shall also act as Transfer Agent and Securities registrar. Terms used
herein which are defined in the Fiscal Agency Agreement but not otherwise
defined herein shall have the meanings assigned to such terms in the Fiscal
Agency Agreement.
The Securities are direct and unsecured obligations of the
Issuer and, subject to the payment restrictions contained in paragraphs 4 and 10
hereof (the "Payment Restrictions"), are scheduled to mature on December 1,
20__. Section 1307 provides that the Securities are not part of the legal
liabilities of the Issuer and are not a basis of any set-off against the Issuer.
The date upon which any state or federal agency obtains an
order or grants approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer shall also be deemed to be the scheduled maturity date
hereof.
2. The Securities are issuable only in fully registered form
without coupons. Securities are issuable in minimum denominations of $250,000
and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The
City of New York, a Transfer Agent where Securities may be registered or
surrendered for registration of transfer or exchange. The Issuer has initially
appointed the corporate trust office of the Fiscal Agent as its Transfer Agent
in the Borough of Manhattan, The City of New York. The Issuer shall cause each
Transfer Agent to act as a Securities registrar and shall cause to be kept at
the office of each Transfer Agent a register in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and registration of transfers of Securities. The
Issuer reserves the right to vary or terminate the appointment of any Transfer
Agent or to appoint additional or other Transfer Agents or to approve any change
in the office through which any Transfer Agent acts, provided that there shall
at all times be a Transfer Agent in the Borough of Manhattan, The City of New
York. The Issuer shall cause notice of any resignation, termination or
appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any
change in the office through which any such Agent shall act to be provided to
holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal Agency
Agreement, the transfer of a Security is registrable on the aforementioned
register upon surrender of such Security at any Transfer Agent duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Issuer duly executed by, the registered holder thereof or his attorney duly
authorized in writing. Upon such surrender of this Security for registration of
transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities, dated the date of authentication thereof, of any authorized
denominations and of a like aggregate principal amount.
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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.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal
Agent may treat the person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected
by notice to the contrary.
4. (a) Notwithstanding anything to the contrary set forth
herein or in the Fiscal Agency Agreement, any payment of principal of, interest
on or any monies owing with respect to this Security, whether at the scheduled
payment date or scheduled maturity date specified herein or otherwise, may be
made only (i) out of the free and divisible surplus of the Issuer which the
Superintendent determines to be available for such payments under Section 1307
and (ii) with the prior approval of the Superintendent whenever, in his
judgment, the financial condition of the Issuer warrants such payment, in
accordance with Section 1307. If the Superintendent does not approve the making
of any payment of principal of or interest on this Security on the scheduled
payment date or scheduled maturity date thereof, as specified herein, the
scheduled payment date or scheduled maturity date, as the case may be, shall be
extended and such payment shall be made by the Issuer on the next following
Business Day on which the Issuer shall have the approval of the Superintendent
to make such payment. Interest will continue to accrue on any such unpaid
principal through the actual date of payment at the rate of interest stated on
the face hereof. Interest will not accrue on interest with respect to which the
scheduled payment date has been extended, during the period of such extension.
If the Superintendent approves a payment of principal of or interest on the
Securities in an amount that is less than the full amount of principal of and
interest on the Securities then scheduled to be paid in respect of the
Securities, payment of such partial amount shall be made pro rata among Security
holders as their interests may appear.
(b) Any payment of principal of or interest on any Security as to which the
approval of the Superintendent has been obtained and which is not punctually
paid or duly provided for on the scheduled payment date or scheduled maturity
date thereof, as set forth herein (such payment being referred to as an "Unpaid
Amount"), will forthwith cease to be payable to the registered owner of this
Security on the relevant record date designated herein, and such Unpaid Amount
will instead be payable to the registered owner of this Security on a subsequent
special record date. The Issuer shall fix the special record date and payment
date for the payment of any Unpaid Amount. At least 15 days before the special
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record date, the Issuer shall mail to each holder of the Securities and the
Fiscal Agent a notice that states the special record date, payment date and
amount of interest or principal to be paid. On the payment date set forth in
such notice, the Paying Agent shall pay the amount of interest or principal to
be so paid to each holder of the Securities in the manner set forth in Section
4(a) of the Fiscal Agency Agreement.
5. (a) For so long as the Fiscal Agent is acting as a Paying
Agent hereunder, the Issuer shall provide, subject to the Payment Restrictions,
to the Fiscal Agent in immediately available funds on or prior to 10:00 a.m.,
New York time, of each date on which a payment of principal of or any interest
on this Security is payable, as set forth herein, such amounts as are necessary
(with any amounts then held by the Fiscal Agent and available for the purpose)
to make such payment, and the Issuer hereby authorizes and directs the Fiscal
Agent from funds so provided to it to make or cause to be made payment of the
principal of and any interest, as the case may be, on this Security as set forth
herein and in the Fiscal Agency Agreement. Payments of principal of or any
interest on the Securities may be made, in the case of a registered holder of at
least $5,000,000 principal amount of Securities, by wire transfer to an account
maintained by the payee with a bank if such registered holder so elects by
giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as
the Fiscal Agent may accept at its discretion) prior to the date on which such
payments are scheduled to be made, of such election and of the account to which
payments are to be made. Unless such designation is revoked, any such
designation made by such holder with respect to such Securities shall remain in
effect with respect to any future payments with respect to such Securities
payable to such holder. The Issuer shall pay any reasonable administrative costs
in connection with making any such payments. The Fiscal Agent shall arrange
directly with any other Paying Agent who may have been appointed by the Issuer
pursuant to the provisions of Section 2 of the Fiscal Agency Agreement for the
payment from funds so paid by the Issuer of the principal of and any interest on
this Security. Any monies held in respect of this Security remaining unclaimed
at the end of two years after such principal and such interest shall have become
payable in accordance with the Payment Restrictions (whether at the Scheduled
Maturity Date or otherwise) and monies sufficient therefor shall have been duly
made available for payment shall, together with any interest made available for
payment thereon, be repaid to the Issuer upon written request and upon such
repayment all liability of the Fiscal Agent with respect thereto shall cease,
without, however, limiting in any way any obligation the Issuer may have to pay
the principal of and interest on this Security, subject to the Payment
Restrictions.
(b) In any case where the scheduled payment date or scheduled
maturity date of any Security shall be at any place of payment a day on which
banking institutions are not carrying out transactions in U.S. dollars or are
authorized or obligated by law or executive order to close, then payment of
principal or interest need not be made on such date at such place but may be
made on the next succeeding day at such place which is not a day on which
banking institutions in the applicable jurisdiction are generally authorized or
obligated by law or executive order to close (a "Business Day"), with the same
force and effect as if made on the scheduled payment date or scheduled maturity
date thereof, and no interest shall accrue for the period after such date.
6. The Issuer shall pay all stamp and other duties, if any,
which may be imposed by the United States of America or any governmental entity
or any political subdivision thereof or taxing authority of or in the foregoing
with respect to the Fiscal Agency Agreement or the initial issuance of this
Security. Except as otherwise specifically provided in this Security, the Issuer
shall not be required to make any payment with respect to any tax, duty,
assessment or other governmental charge of whatever nature imposed or levied by
any government or any political subdivision or taxing authority thereof or
therein.
A-6
7. For so long as any of the Securities remain Outstand-
ing or any amount remains unpaid on any of the Securities,
(a) Except with respect to transactions covered by Paragraph 8
hereof, the Issuer will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, material rights
(charter and statutory) and franchise; provided, however, that the Issuer shall
not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and that the Issuer has used its
best efforts to not disadvantage in any material respect the holders of the
Securities, or that not preserving such right or franchise is in the best
interest of the shareholders of the Issuer having considered the interests of
the holders of the Securities.
(b) The Issuer will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), if such action would cause the Issuer
to be in violation of the Investment Company Act at any time prior to payment in
full of the Securities.
(c) The Issuer shall use its best efforts to obtain the
approval of the Superintendent in accordance with Section 1307 for the payment
by the Issuer of interest on and principal of the Securities on the scheduled
payment dates or scheduled maturity dates thereof, and, in the event any such
approval has not been obtained for any such payment at or prior to the scheduled
payment date or scheduled maturity date thereof, as the case may be, to continue
to use its best efforts to obtain such approval promptly thereafter. Not less
than 45 days prior to the scheduled payment date or scheduled maturity date
thereof (excluding any such scheduled maturity date which arises as a result of
the obtaining of an order or the granting of approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer), the Issuer will seek
the approval of the Superintendent to make each payment of interest on and
principal of the Securities. In addition, the Issuer shall notify or cause to be
notified the Fiscal Agent no later than 5 Business Days (as defined herein), and
the Fiscal Agent will notify each holder, prior to the scheduled payment date
for interest on or the scheduled maturity date for principal of any Security
(excluding any such scheduled maturity date which arises as a result of the
obtaining of an order or the granting of approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer) in the event that the
Superintendent has not then approved the making of any such payment on such
scheduled payment date or such scheduled maturity date, and thereafter shall
promptly notify the Fiscal Agent, and the Fiscal Agent will notify each holder,
in the event that the Issuer shall have failed to make any such payment on any
such scheduled payment date or such scheduled maturity date. Without limiting
the Issuer's obligations set forth in this paragraph, it is understood that, (a)
nothing herein or in the Fiscal Agency Agreement shall restrict the Issuer from
paying or declaring dividends to its shareholders, and (b) to the extent
authorized by the Issuer's Board of Directors, the Issuer may continue to
declare policyholder dividends and to make dividend payments on its
participating policies 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 interest
on or principal of the Securities.
8. For so long as any of the Securities remain Outstanding or any amounts
remain unpaid on any of the Securities, the Issuer may merge or consolidate with
or into any other corporation or sell, convey, transfer or otherwise dispose of
all or substantially all of its assets to any person, firm or corporation, if
(i) (A) in the case of a merger or consolidation, the Issuer is the surviving
corporation or (B) in the case of a merger or consolidation where the Issuer is
not the surviving corporation and in the case of any such sale, conveyance,
A-7
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 merger or consolidation, or such sale,
conveyance, transfer or other disposition, the Issuer shall not have failed to
make payment of interest on or principal of the Securities after having received
the Superintendent's prior approval to make such payment and (iii) the Issuer
has delivered to the Fiscal Agent an Officer's Certificate stating that such
merger, consolidation, sale, conveyance, transfer or other disposition complies
with this paragraph and that all conditions precedent herein provided for
relating to such transaction have been complied with. In the event of the
assumption by a successor corporation of the obligations of the Issuer as
provided in clause (i)(B) of the immediately preceding sentence, such successor
corporation shall succeed to and be substituted for the Issuer hereunder and
under the Fiscal Agency Agreement and all such obligations of the Issuer shall
terminate.
9. No employee benefit plan within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the prohibited transaction provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), as to which the Issuer is a party in interest or a
disqualified person (each a "Plan"), and no Person acting on behalf of a Plan,
may acquire this Security, unless the acquisition of the Security is exempt
under one or more of Prohibited Transaction exemptions 84-14, 90-1 or 91-38 (or
any amendment thereof) or another applicable exemption from the prohibitions
under Section 406 of ERISA and Section 4975 of the Code. The purchase by any
Person of this Security shall constitute a representation by such Person to the
Issuer and the Fiscal Agent that such Person either (i) is not a Plan or (ii) is
a Plan, and may acquire this Security under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
restrictions on purchases of the Securities set forth in this Paragraph 9 are in
addition to those otherwise set forth in Section 6 of the Fiscal Agency
Agreement and under applicable law.
10. (a) The Issuer agrees, and each Security holder by
accepting a Security agrees, that the indebtedness evidenced by the Securities
is subordinated in right of payment, to the extent and in the manner provided in
this Paragraph, to the prior payment in full of all Indebtedness, Policy Claims
and Other Creditor Claims (each as hereinafter defined), in accordance with
Section 7435 of the New York Insurance Law (together with any successor
provision, and as may be hereafter amended from time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation, conservation, dissolution or reorganization
proceeding relating to the Issuer or its property, the priority of claims of
Security holders shall be determined in accordance with Section 7435. In a
proceeding commenced under Article 74 of the New York Insurance Law, claims for
principal of or interest on the Securities constitute Class 7 claims under
Section 7435, as currently in effect. If the Superintendent approves a payment
of principal of or interest on the Securities in an amount that is less than the
full amount of principal of and interest on the Securities then scheduled to be
paid in respect of the Securities, payment of such partial amount shall be made
pro rata among Security holders as their interests may appear.
(c) If a distribution is made to Security holders that,
because of this Paragraph, should not have been made to them, the Security
holders who receive the distribution shall hold it in trust for holders of
Policy Claims, Indebtedness and Other Creditor Claims and pay it over to them as
their interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the
Paying Agent of any facts known to the Issuer that would cause a payment of
principal of or interest on the Securities to violate this Paragraph.
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(e) This Paragraph defines the relative rights of Security
holders, on the one hand, and holders of any other claims, in accordance with
Section 7435, on the other hand. Nothing in this Security or the Fiscal Agency
Agreement shall (i) impair, as between the Issuer and Security holders, the
obligation of the Issuer which is, subject to the Payment Restrictions, absolute
and unconditional to pay principal of and interest on the Securities in
accordance with their terms; (ii) affect the relative rights of Security holders
and creditors of the Issuer, other than holders of Policy Claims, Indebtedness
or Other Creditor Claims; or (iii) prevent the Fiscal Agent or any Security
holder from exercising any available remedies upon a breach by the Issuer of its
obligations hereunder, subject to the rights of holders of Policy Claims,
Indebtedness or Other Creditor Claims to receive distributions otherwise payable
to Security holders.
(f) No right of any holder of Policy Claims, Indebtedness or
Other Creditor Claims to enforce the subordination of the indebtedness evidenced
by the Securities shall be impaired by any act or failure to act by the Issuer
or by its failure to comply with the terms of this Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof,
authorizes and directs the Fiscal Agent on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
Paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all
such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i)
all existing or future indebtedness of the Issuer for borrowed money, (ii) all
existing or future indebtedness for borrowed money of other persons, the payment
of which is guaranteed by the Issuer, (iii) all existing or future obligations
of the Issuer under any agreement obligating the Issuer to cause another person
to maintain a minimum level of net worth, or otherwise to ensure the solvency of
such person and (iv) any expense or any claim or amount, to the extent that
payment of principal of and interest on the Securities is required by law to be
subordinated to the prior payment thereof, provided, that 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. Under
current law the Issuer cannot issue any indebtedness which by its terms is
subordinate to the Securities. "Indebtedness" shall not include any other
surplus notes or similar obligations of the Issuer that rank pari passu with the
Securities or any indebtedness or other obligations of any separate account of
the Issuer.
As used herein, "Policy Claims" shall mean all existing or
future claims of policyholders or beneficiaries, as the case may be, under any
and all existing or future policies, endorsements, riders and other contracts of
insurance, annuity contracts, including, without limitation, guaranteed
investment contracts, and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or hereafter created, all claims under
separate account agreements to the extent such claims are not fully discharged
by the assets held by the Issuer in the applicable separate accounts and all
claims of The Life Insurance Company Guaranty Corporation of New York or any
other guaranty corporation or association of New York or any other jurisdiction,
other than claims described in clause (i) of the definition of "Other Creditor
Claims" below and claims for interest.
As used herein, "Other Creditor Claims" shall mean all other claims which,
pursuant to Section 7435, have priority over claims with respect to the
Securities. Under Section 7435 as currently in effect, such other claims include
(i) claims with respect to the actual and necessary costs and expenses of
administration incurred by a liquidator, conservator, rehabilitator or ancillary
rehabilitator under Section 7435; (ii) claims with respect to the actual and
necessary costs and expenses of administration incurred by The Life Insurance
Guaranty Corporation or The Life Insurance Company Guaranty Corporation of New
York; (iii) claims of The Life Insurance Company Guaranty Corporation for
certain funds loaned to the Superintendent under Section 7713(d) of the New York
Insurance Law; (iv) debts up to $1,200 due to employees for services performed
A-9
within one year of the commencement of rehabilitation, liquidation,
conservation, dissolution or reorganization proceedings; (v) claims for payment
for goods furnished or services rendered in the ordinary course of business
within 90 days of the declaration of the impairment or insolvency of the Issuer;
(vi) claims of the federal or any state or local government (except in the case
of claims for a penalty or forfeiture which are included only to the extent of
pecuniary loss and reasonable costs occasioned by the act giving rise to the
forfeiture or penalty); and (vii) claims of general creditors and all other
claims having priority under Section 7435.
11. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities, the Issuer shall, in
accordance with Rule 144A, comply with the terms of the agreements set forth in
Section 7 of the Fiscal Agency Agreement. The provisions of Sections 7 and 8 of
the Fiscal Agency Agreement are hereby incorporated mutatis mutandis herein.
12. In case this Security shall become mutilated, defaced,
destroyed, lost or stolen, the Issuer will execute and upon the Issuer's request
the Fiscal Agent shall authenticate and deliver a new Security, having a number
not contemporaneously outstanding, of like tenor (including the same date of
issuance) and equal principal amount, registered in the same manner, dated the
date of its authentication and bearing interest from the date to which interest
has been paid on this Security, in exchange and substitution for this Security
(upon surrender and cancellation thereof) or in lieu of and substitution for
this Security. In the case where this Security is destroyed, lost or stolen, the
applicant for a substituted Security shall furnish to the Issuer such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft of this Security, the applicant shall
also furnish to the Issuer satisfactory evidence of the destruction, loss or
theft of this Security and of the ownership thereof, provided, however, that if
the registered holder hereof is, in the judgment of the Issuer, an institution
of recognized responsibility, such holder's written agreement of indemnity shall
be deemed to be satisfactory for the issuance of a new Security in lieu of and
substitution for this Security. The Fiscal Agent shall authenticate any such
substituted Security and deliver the same only upon written request or
authorization of the Issuer. Upon the issuance of any substituted Security, the
Issuer may require the payment by the registered holder thereof of a sum
sufficient to cover fees and expenses connected therewith. In case this Security
has matured or is about to mature and shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except if this Security is mutilated or defaced)
upon compliance by the registered holder with the provisions of this Paragraph
12 as hereinabove set forth.
13. Section 10 of the Fiscal Agency Agreement, which Section is hereby
incorporated mutatis mutandis by reference herein, provides that, with certain
exceptions as therein provided and with the consent of the holders of a majority
of the principal amount of the Outstanding Securities of this series present at
a meeting duly called pursuant thereto or by written consent of such percentage
of the principal amount of all Outstanding Securities, the Issuer and the Fiscal
Agent may, with the prior approval of the Superintendent, modify, amend or
supplement the Fiscal Agency Agreement or the terms of the Securities of this
series or may give consents or waivers or take other actions with respect
thereto. Any such modification, amendment, supplement, consent, waiver or other
action shall be conclusive and binding on the holder of this Security and on all
future holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange heretofore or in lieu hereof, whether or not
notation thereof is made upon this Security. The Fiscal Agency Agreement and the
terms of the Securities may, with the prior approval of the Superintendent, be
modified or amended by the Issuer and the Fiscal Agent, without the consent of
any holders of Securities, for the purpose of (a) adding to the covenants of the
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Issuer for the benefit of the holders of Securities, or (b) surrendering any
right or power conferred upon the Issuer, or (c) securing the Securities
pursuant to the requirements hereof, thereof or otherwise, or (d) evidencing the
succession of another corporation to the Issuer and the assumption by such
successor of the covenants and obligations of the Issuer herein and in the
Fiscal Agency Agreement as permitted by the Securities and the Fiscal Agency
Agreement, or (e) modifying the restrictions on, and procedures for, resale and
other transfers of the Securities to the extent required by any change in
applicable law or regulation (or the interpretation thereof) or in practices
relating to the resale or transfer of restricted securities generally, or (f)
accommodating the issuance, if any, of Securities in book-entry or certificated
form and matters related thereto which do not adversely affect the interest of
any Security holder in any material respect, or (g) curing any ambiguity or
correcting or supplementing any defective provision contained herein or in the
Fiscal Agency Agreement in a manner which does not adversely affect the interest
of any Security holder in any material respect, or (h) effecting any amendment
which the Issuer and the Fiscal Agent may determine is necessary or desirable
and which shall not adversely affect the interest of any Security holder, to all
of which each holder of any Security, by acceptance thereof, consents.
14. Holders of Securities may enforce the Fiscal Agency Agree-
ment or the Securities only in the manner set forth below.
(a) In the event that any state or federal agency shall obtain
an order or grant approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer, the Securities of all Series will upon the obtaining
of such an order or the granting of such approval immediately mature in full
without any action on the part of the Fiscal Agent or any holder of the
Securities, with payment thereon being subject to the Payment Restrictions, and
any restrictions imposed as a consequence of, or pursuant to, such proceedings.
Notwithstanding any other provision of this Security or the Fiscal Agency
Agreement, in no event shall the Fiscal Agent or any holder of the Securities be
entitled to declare the Securities to immediately mature or otherwise be
immediately payable.
(b) In the event that the Superintendent approves in whole or
in part a payment of any interest on or principal of any Securities and the
Issuer fails to pay the full amount of such approved payment on the date such
amount is scheduled to be paid, such approved amount will be immediately payable
on such date without any action on the part of the Fiscal Agent or any holder of
Securities. In the event that the Issuer fails to perform any of its other
obligations hereunder or under the Fiscal Agency Agreement, each holder of the
Securities may pursue any available remedy to enforce the performance of any
provision of such Securities or the Fiscal Agency Agreement, provided, however,
that such remedy shall in no event include the right to declare the Securities
immediately payable, and shall in no circumstances be inconsistent with the
provisions of Section 1307. A delay or omission by any Security holder in
exercising any right or remedy accruing as a result of the Issuer's failure to
perform its obligations hereunder or under the Fiscal Agency Agreement and the
continuation thereof shall not impair such right or remedy or constitute a
waiver of or acquiescence in such non-performance by the Issuer. To the extent
permitted by law, no remedy is exclusive of any other remedy and all remedies
are cumulative.
(c) Notwithstanding any other provision of this Security or the Fiscal
Agency Agreement, the right of any holder of Securities to receive payment of
the principal of and interest on such holder's Securities on or after the
respective scheduled payment or scheduled maturity dates expressed in such
Securities, or to bring suit for the enforcement of any such payment on or after
such respective scheduled payment or scheduled maturity dates, in each case
subject to such payment on such dates having received the approval of the
Superintendent pursuant to the Payment Restrictions, including the approval of
the Superintendent pursuant to Section 1307, is absolute and unconditional and
shall not be impaired or affected without the consent of the holder.
15. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, subject to the Payment Restrictions, to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
A-11
EXHIBIT B
FORM OF GLOBAL SECURITY
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
FISCAL AGENT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER
OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED
BY RULE 144A UNDER THE ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH
MAY BE HEREAFTER AMENDED FROM TIME TO TIME, "RULE 144A").
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] TO THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES (THE "ISSUER") OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IN EXCHANGE FOR THIS
SECURITY OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF [INSERT NAME OF
NOMINEE OF DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY] (AND ANY PAYMENT IS MADE TO
[INSERT NAME OF NOMINEE OF DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY]), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN
[INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, [INSERT NAME OF NOMINEE OF DEPOSITARY], HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL SECURITY MAY NOT BE
EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY
PERSON OTHER THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY AGREEMENT,
AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 6(C) OF THE FISCAL AGENCY AGREEMENT.
BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH SECTION 6(C) OF THE FISCAL AGENCY AGREEMENT.
[INCLUDE IF SECURITY IS A 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 NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE ACT AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL INVESTOR (1) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE ACT, OR (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT PROVIDED BY RULE 144 (IF AVAILABLE) AND (B) BY
SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN
INSTITUTION THAT IS AN ACCREDITED INVESTOR, AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7), OR, IF THE EQUITY OWNERS THEREOF ALL MEET ONE OR MORE OF THE
FOREGOING CRITERIA, RULE 501(a)(8), UNDER THE ACT, IN EACH CASE, IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THE
HOLDER OF THIS SECURITY ALSO UNDERSTANDS AND AGREES THAT (A) THIS SECURITY MAY
ONLY BE TRANSFERRED IN MINIMUM PRINCIPAL AMOUNTS OF $250,000 AND (B) SUCH HOLDER
WILL NOTIFY ANY PERSON WHO PURCHASES THIS SECURITY FROM IT OF THE RESTRICTIONS
REFERRED TO HEREIN. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144, IF ANY, FOR RESALES OF THIS
NOTE.
B-1
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
ISSUER THAT, IF THE HOLDER PROPOSES TO SELL OR TRANSFER THIS SECURITY TO ANY
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED), THE HOLDER WILL COMPLY WITH THE RESTRICTIONS
SET FORTH IN PARAGRAPH 9 HEREOF.
PAYMENTS OF PRINCIPAL AND INTEREST ON THIS SECURITY MAY ONLY
BE MADE OUT OF THE ISSUER'S FREE AND DIVISIBLE SURPLUS AND WITH THE PRIOR
APPROVAL OF THE SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK (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.
B-2
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
__% Surplus Note scheduled to mature on December 1,
20__ --------------------
CUSIP NO.:__________
No. R-____ $___________
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
stock life insurance company organized under the laws of the State of New York
(herein called the "Issuer"), for value received, hereby promises to pay,
subject to the approval of the Superintendent pursuant to Section 1307, to
______________________, or registered assigns, the principal sum of
______________ United States dollars ($_________), or such other amount (not to
exceed [ ] million dollars ($[ ,000,000]) when taken together with all of the
Issuer's __% Surplus Notes scheduled to mature on December 1, 20__ issued and
outstanding in definitive certificated form or in the form of another global
Security) as may from time to time represent the principal amount of the
Issuer's __% Surplus Notes scheduled to mature on December 1, 20__ in respect of
which beneficial interests are held through the Depositary in the form of a
global Security, on December 1, 20__ (the "Scheduled Maturity Date"), and to pay
interest thereon, subject to the approval of the Superintendent pursuant to
Section 1307, from December 1, 1995 or from the most recent Scheduled Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on June 1 and December 1 in each year, commencing June 1, 1996 (each
a "Scheduled Interest Payment Date"), at the rate of ___% per annum, until the
principal hereof is paid or duly provided for. This Security is not subject to
redemption prior to the Scheduled Maturity Date. The date upon which any state
or federal agency obtains an order or grants approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer shall also be deemed to
be the scheduled maturity date. As specified on the reverse hereof, all payments
of principal of or interest on this Security may be made only out of the
Issuer's free and divisible surplus and only with the prior approval of the
Superintendent. The interest so payable, and punctually paid or duly provided
for, on any Scheduled Interest Payment Date shall be paid, in accordance with
the terms of the Fiscal Agency Agreement hereinafter referred to, to the person
(the "registered holder") in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the May 15 or
the November 15 (whether or not a Business Day (as defined on the reverse
hereof)), as the case may be (each a "Regular Record Date"), next preceding such
Scheduled Interest Payment Date. Interest on the Securities shall be calculated
on the basis of a 360-day year of twelve 30-day months. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holder on such Regular Record Date and shall be paid to the person in
whose name this Security (or one or more predecessor Securities) is registered
at the close of business on a special record date for the payment of such
interest to be fixed by the Issuer, notice whereof shall be given to registered
holders of the Securities not less than 15 days prior to such special record
date.
Principal of this Security shall be payable against surrender hereof at the
corporate trust office of the Fiscal Agent hereinafter referred to and at the
offices of such other Paying Agents as the Issuer shall have appointed pursuant
to the Fiscal Agency Agreement. Payments of principal of the Securities shall be
made only against surrender of the Securities. Payments of interest on this
Security may be made, in accordance with the foregoing and subject to applicable
laws and regulations, by check mailed on or before the scheduled payment date of
such payment to the person entitled thereto at such person's address appearing
on the aforementioned register. In the case of a registered holder of at least
$5,000,000 aggregate principal amount of Securities, payments of principal or
interest may be made by wire transfer to an account maintained by the payee with
a bank if such registered holder so elects by giving notice to the Fiscal Agent,
not less than 15 days (or such fewer days as the Fiscal Agent may accept at its
discretion) prior to the applicable scheduled payment date or scheduled maturity
date hereof, of such election and of the account to which payments are to be
made. Unless such designation is revoked, any such designation made by such
holder with respect to such Securities shall remain in effect with respect to
any future payments with respect to such Securities payable to such holder. The
Issuer agrees that until this Security has been delivered to the Fiscal Agent
for cancellation, or monies sufficient to pay the full principal of and interest
remaining unpaid on this Security have been made available for payment and
either paid or returned to the Issuer as provided herein, it will at all times
maintain offices or agencies in the Borough of Manhattan, The City of New York
for the payment of the principal of and interest on the Securities as herein
provided.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
B-3
This Security may be executed by the Issuer by manual or
facsimile signatures, and such signatures may be executed on separate
counterparts.
Unless the certificate of authentication hereon has been
executed by the Fiscal Agent by manual signature, this Security shall not be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
This is one of the Securities referred to in the
within-mentioned Fiscal Agency Agreement.
THE CHASE MANHATTAN BANK, N.A.
as Fiscal Agent
By:-------------------------
Authorized Officer
B-4
FORM OF REVERSE
1. This Security is one of a duly authorized issue of ___%
Surplus Notes scheduled to mature on December 1, 20__ of the Issuer (herein
called the "Securities" or "Notes"), limited in aggregate principal amount to
$[___,000,000]. The Issuer and The Chase Manhattan Bank, N.A. (the "Fiscal
Agent") have entered into a Fiscal Agency Agreement, dated as of December 1,
1995 (such instrument, as it may be duly amended from time to time, is herein
called the "Fiscal Agency Agreement"), which provides for the mechanism for
issuing the Securities and, inter alia, sets forth certain duties of the Fiscal
Agent in connection therewith. As used herein, the term "Fiscal Agent" includes
any successor fiscal agent under the Fiscal Agency Agreement. Copies of the
Fiscal Agency Agreement are on file and available for inspection at the
corporate trust office of the Fiscal Agent in the Borough of Manhattan, The City
of New York. Holders of Securities are referred to the Fiscal Agency Agreement
for a statement of the terms thereof, including those relating to transfer,
payment, exchanges and certain other matters. The Fiscal Agent or any Paying
Agent shall also act as Transfer Agent and Securities registrar. Terms used
herein which are defined in the Fiscal Agency Agreement but not otherwise
defined herein shall have the meanings assigned to such terms in the Fiscal
Agency Agreement.
The Securities are direct and unsecured obligations of the
Issuer and, subject to the payment restrictions contained in paragraphs 4 and 10
hereof (the "Payment Restrictions"), are scheduled to mature on December 1,
20__. Section 1307 provides that the Securities are not part of the legal
liabilities of the Issuer and are not a basis of any set-off against the Issuer.
The date upon which any state or federal agency obtains an
order or grants approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer shall also be deemed to be the scheduled maturity date
hereof.
2. The Securities are issuable only in fully registered form
without coupons. Securities are issuable in minimum denominations of $250,000
and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain, in the Borough of Manhattan, The
City of New York, a Transfer Agent where Securities may be registered or
surrendered for registration of transfer or exchange. The Issuer has initially
appointed the corporate trust office of the Fiscal Agent as its Transfer Agent
in the Borough of Manhattan, The City of New York. The Issuer shall cause each
Transfer Agent to act as a Securities registrar and shall cause to be kept at
the office of each Transfer Agent a register in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and registration of transfers of Securities. The
Issuer reserves the right to vary or terminate the appointment of any Transfer
Agent or to appoint additional or other Transfer Agents or to approve any change
in the office through which any Transfer Agent acts, provided that there shall
at all times be a Transfer Agent in the Borough of Manhattan, The City of New
York. The Issuer shall cause notice of any resignation, termination or
appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any
change in the office through which any such Agent shall act to be provided to
holders of Securities.
Subject to the restrictions set forth herein and in the Fiscal Agency
Agreement, the transfer of a Security is registrable on the aforementioned
register upon surrender of such Security at any Transfer Agent duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Issuer duly executed by, the registered holder thereof or his attorney duly
authorized in writing. Upon such surrender of this Security for registration of
transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities, dated the date of authentication thereof, of any authorized
denominations and of a like aggregate principal amount.
B-5
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.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal
Agent may treat the person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected
by notice to the contrary.
4. (a) Notwithstanding anything to the contrary set forth
herein or in the Fiscal Agency Agreement, any payment of principal of, interest
on or any monies owing with respect to this Security, whether at the scheduled
payment date or scheduled maturity date specified herein or otherwise, may be
made only (i) out of the free and divisible surplus of the Issuer which the
Superintendent determines to be available for such payments under Section 1307
and (ii) with the prior approval of the Superintendent whenever, in his
judgment, the financial condition of the Issuer warrants such payment, in
accordance with Section 1307. If the Superintendent does not approve the making
of any payment of principal of or interest on this Security on the scheduled
payment date or scheduled maturity date thereof, as specified herein, the
scheduled payment date or scheduled maturity date, as the case may be, shall be
extended and such payment shall be made by the Issuer on the next following
Business Day on which the Issuer shall have the approval of the Superintendent
to make such payment. Interest will continue to accrue on any such unpaid
principal through the actual date of payment at the rate of interest stated on
the face hereof. Interest will not accrue on interest with respect to which the
scheduled payment date has been extended, during the period of such extension.
If the Superintendent approves a payment of principal of or interest on the
Securities in an amount that is less than the full amount of principal of and
interest on the Securities then scheduled to be paid in respect of the
Securities, payment of such partial amount shall be made pro rata among Security
holders as their interests may appear.
(b) Any payment of principal of or interest on any Security as to which the
approval of the Superintendent has been obtained and which is not punctually
paid or duly provided for on the scheduled payment date or scheduled maturity
date thereof, as set forth herein (such payment being referred to as an "Unpaid
Amount"), will forthwith cease to be payable to the registered owner of this
Security on the relevant record date designated herein, and such Unpaid Amount
will instead be payable to the registered owner of this Security on a subsequent
special record date. The Issuer shall fix the special record date and payment
B-6
date for the payment of any Unpaid Amount. At least 15 days before the special
record date, the Issuer shall mail to each holder of the Securities and the
Fiscal Agent a notice that states the special record date, payment date and
amount of interest or principal to be paid. On the payment date set forth in
such notice, the Paying Agent shall pay the amount of interest or principal to
be so paid to each holder of the Securities in the manner set forth in Section
4(a) of the Fiscal Agency Agreement.
5. (a) For so long as the Fiscal Agent is acting as a Paying
Agent hereunder, the Issuer shall provide, subject to the Payment Restrictions,
to the Fiscal Agent in immediately available funds on or prior to 10:00 a.m.,
New York time, of each date on which a payment of principal of or any interest
on this Security is payable, as set forth herein, such amounts as are necessary
(with any amounts then held by the Fiscal Agent and available for the purpose)
to make such payment, and the Issuer hereby authorizes and directs the Fiscal
Agent from funds so provided to it to make or cause to be made payment of the
principal of and any interest, as the case may be, on this Security as set forth
herein and in the Fiscal Agency Agreement. Payments of principal of or any
interest on the Securities may be made, in the case of a registered holder of at
least $5,000,000 principal amount of Securities, by wire transfer to an account
maintained by the payee with a bank if such registered holder so elects by
giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as
the Fiscal Agent may accept at its discretion) prior to the date on which such
payments are scheduled to be made, of such election and of the account to which
payments are to be made. Unless such designation is revoked, any such
designation made by such holder with respect to such Securities shall remain in
effect with respect to any future payments with respect to such Securities
payable to such holder. The Issuer shall pay any reasonable administrative costs
in connection with making any such payments. The Fiscal Agent shall arrange
directly with any other Paying Agent who may have been appointed by the Issuer
pursuant to the provisions of Section 2 of the Fiscal Agency Agreement for the
payment from funds so paid by the Issuer of the principal of and any interest on
this Security. Any monies held in respect of this Security remaining unclaimed
at the end of two years after such principal and such interest shall have become
payable in accordance with the Payment Restrictions (whether at the Scheduled
Maturity Date or otherwise) and monies sufficient therefor shall have been duly
made available for payment shall, together with any interest made available for
payment thereon, be repaid to the Issuer upon written request and upon such
repayment all liability of the Fiscal Agent with respect thereto shall cease,
without, however, limiting in any way any obligation the Issuer may have to pay
the principal of and interest on this Security, subject to the Payment
Restrictions.
(b) In any case where the scheduled payment date or scheduled
maturity date of any Security shall be at any place of payment a day on which
banking institutions are not carrying out transactions in U.S. dollars or are
authorized or obligated by law or executive order to close, then payment of
principal or interest need not be made on such date at such place but may be
made on the next succeeding day at such place which is not a day on which
banking institutions in the applicable jurisdiction are generally authorized or
obligated by law or executive order to close (a "Business Day"), with the same
force and effect as if made on the scheduled payment date or scheduled maturity
date thereof, and no interest shall accrue for the period after such date.
6. The Issuer shall pay all stamp and other duties, if any,
which may be imposed by the United States of America or any governmental entity
or any political subdivision thereof or taxing authority of or in the foregoing
with respect to the Fiscal Agency Agreement or the initial issuance of this
Security. Except as otherwise specifically provided in this Security, the Issuer
shall not be required to make any payment with respect to any tax, duty,
assessment or other governmental charge of whatever nature imposed or levied by
any government or any political subdivision or taxing authority thereof or
therein.
B-7
7. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities,
(a) Except with respect to transactions covered by Paragraph 8
hereof, the Issuer will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, material rights
(charter and statutory) and franchise; provided, however, that the Issuer shall
not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and that the Issuer has used its
best efforts to not disadvantage in any material respect the holders of the
Securities, or that not preserving such right or franchise is in the best
interest of the shareholders of the Issuer having considered the interests of
the holders of the Securities.
(b) The Issuer will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), if such action would cause the Issuer
to be in violation of the Investment Company Act at any time prior to payment in
full of the Securities.
(c) The Issuer shall use its best efforts to obtain the
approval of the Superintendent in accordance with Section 1307 for the payment
by the Issuer of interest on and principal of the Securities on the scheduled
payment dates or scheduled maturity dates thereof, and, in the event any such
approval has not been obtained for any such payment at or prior to the scheduled
payment date or scheduled maturity date thereof, as the case may be, to continue
to use its best efforts to obtain such approval promptly thereafter. Not less
than 45 days prior to the scheduled payment date or scheduled maturity date
thereof (excluding any such scheduled maturity date which arises as a result of
the obtaining of an order or the granting of approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer), the Issuer will seek
the approval of the Superintendent to make each payment of interest on and
principal of the Securities. In addition, the Issuer shall notify or cause to be
notified the Fiscal Agent no later than 5 Business Days (as defined herein), and
the Fiscal Agent will notify each holder, prior to the scheduled payment date
for interest on or the scheduled maturity date for principal of any Security
(excluding any such scheduled maturity date which arises as a result of the
obtaining of an order or the granting of approval for the rehabilitation,
liquidation, conservation or dissolution of the Issuer) in the event that the
Superintendent has not then approved the making of any such payment on such
scheduled payment date or such scheduled maturity date, and thereafter shall
promptly notify the Fiscal Agent, and the Fiscal Agent will notify each holder,
in the event that the Issuer shall have failed to make any such payment on any
such scheduled payment date or such scheduled maturity date. Without limiting
the Issuer's obligations set forth in this paragraph, it is understood that, (a)
nothing herein or in the Fiscal Agency Agreement shall restrict the Issuer from
paying or declaring dividends to its shareholders, and (b) to the extent
authorized by the Issuer's Board of Directors, the Issuer may continue to
declare policyholder dividends and to make dividend payments on its
participating policies 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 interest
on or principal of the Securities.
B-8
8. For so long as any of the Securities remain Outstanding or
any amounts remain unpaid on any of the Securities, the Issuer may merge or
consolidate with or into any other corporation or sell, convey, transfer or
otherwise dispose of all or substantially all of its assets to any person, firm
or corporation, if (i) (A) in the case of a merger or consolidation, the Issuer
is the surviving corporation or (B) in the case of a merger or consolidation
where the Issuer is not the surviving corporation and in the case of any such
sale, conveyance, transfer or other disposition, the successor corporation is a
corporation organized and existing under the laws of the United States or a
State thereof and such corporation expressly assumes by supplemental fiscal
agency agreement all the obligations of the Issuer under the Securities and the
Fiscal Agency Agreement, (ii) at the time of any such merger or consolidation,
or such sale, conveyance, transfer or other disposition, the Issuer shall not
have failed to make payment of interest on or principal of the Securities after
having received the Superintendent's prior approval to make such payment and
(iii) the Issuer has delivered to the Fiscal Agent an Officer's Certificate
stating that such merger, consolidation, sale, conveyance, transfer or other
disposition complies with this paragraph and that all conditions precedent
herein provided for relating to such transaction have been complied with. In the
event of the assumption by a successor corporation of the obligations of the
Issuer as provided in clause (i)(B) of the immediately preceding sentence, such
successor corporation shall succeed to and be substituted for the Issuer
hereunder and under the Fiscal Agency Agreement and all such obligations of the
Issuer shall terminate.
9. No employee benefit plan within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the prohibited transaction provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), as to which the Issuer is a party in interest or a
disqualified person (each a "Plan"), and no Person acting on behalf of a Plan,
may acquire this Security, unless the acquisition of the Security is exempt
under one or more of Prohibited Transaction exemptions 84-14, 90-1 or 91-38 (or
any amendment thereof) or another applicable exemption from the prohibitions
under Section 406 of ERISA and Section 4975 of the Code. The purchase by any
Person of this Security shall constitute a representation by such Person to the
Issuer and the Fiscal Agent that such Person either (i) is not a Plan or (ii) is
a Plan, and may acquire this Security under an applicable exemption from the
prohibitions under Section 406 of ERISA and Section 4975 of the Code. The
restrictions on purchases of the Securities set forth in this Paragraph 9 are in
addition to those otherwise set forth in Section 6 of the Fiscal Agency
Agreement and under applicable law.
10. (a) The Issuer agrees, and each Security holder by
accepting a Security agrees, that the indebtedness evidenced by the Securities
is subordinated in right of payment, to the extent and in the manner provided in
this Paragraph, to the prior payment in full of all Indebtedness, Policy Claims
and Other Creditor Claims (each as hereinafter defined), in accordance with
Section 7435 of the New York Insurance Law (together with any successor
provision, and as may be hereafter amended from time to time, "Section 7435").
(b) Upon any distribution to creditors of the Issuer in any
rehabilitation, liquidation, conservation, dissolution or reorganization
proceeding relating to the Issuer or its property, the priority of claims of
Security holders shall be determined in accordance with Section 7435. In a
proceeding commenced under Article 74 of the New York Insurance Law, claims for
principal of or interest on the Securities constitute Class 7 claims under
Section 7435, as currently in effect. If the Superintendent approves a payment
of principal of or interest on the Securities in an amount that is less than the
full amount of principal of and interest on the Securities then scheduled to be
paid in respect of the Securities, payment of such partial amount shall be made
pro rata among Security holders as their interests may appear.
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(c) If a distribution is made to Security holders that,
because of this Paragraph, should not have been made to them, the Security
holders who receive the distribution shall hold it in trust for holders of
Policy Claims, Indebtedness and Other Creditor Claims and pay it over to them as
their interests may appear.
(d) The Issuer shall promptly notify the Fiscal Agent and the
Paying Agent of any facts known to the Issuer that would cause a payment of
principal of or interest on the Securities to violate this Paragraph.
(e) This Paragraph defines the relative rights of Security
holders, on the one hand, and holders of any other claims, in accordance with
Section 7435, on the other hand. Nothing in this Security or the Fiscal Agency
Agreement shall (i) impair, as between the Issuer and Security holders, the
obligation of the Issuer which is, subject to the Payment Restrictions, absolute
and unconditional to pay principal of and interest on the Securities in
accordance with their terms; (ii) affect the relative rights of Security holders
and creditors of the Issuer, other than holders of Policy Claims, Indebtedness
or Other Creditor Claims; or (iii) prevent the Fiscal Agent or any Security
holder from exercising any available remedies upon a breach by the Issuer of its
obligations hereunder, subject to the rights of holders of Policy Claims,
Indebtedness or Other Creditor Claims to receive distributions otherwise payable
to Security holders.
(f) No right of any holder of Policy Claims, Indebtedness or
Other Creditor Claims to enforce the subordination of the indebtedness evidenced
by the Securities shall be impaired by any act or failure to act by the Issuer
or by its failure to comply with the terms of this Fiscal Agency Agreement.
(g) Each holder of Securities, by acceptance thereof,
authorizes and directs the Fiscal Agent on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
Paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all
such purposes.
As used herein, "Indebtedness" of the Issuer shall mean (i)
all existing or future indebtedness of the Issuer for borrowed money, (ii) all
existing or future indebtedness for borrowed money of other persons, the payment
of which is guaranteed by the Issuer, (iii) all existing or future obligations
of the Issuer under any agreement obligating the Issuer to cause another person
to maintain a minimum level of net worth, or otherwise to ensure the solvency of
such person and (iv) any expense or any claim or amount, to the extent that
payment of principal of and interest on the Securities is required by law to be
subordinated to the prior payment thereof, provided, that 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. Under
current law the Issuer cannot issue any indebtedness which by its terms is
subordinate to the Securities. "Indebtedness" shall not include any other
surplus notes or similar obligations of the Issuer that rank pari passu with the
Securities or any indebtedness or other obligations of any separate account of
the Issuer.
As used herein, "Policy Claims" shall mean all existing or
future claims of policyholders or beneficiaries, as the case may be, under any
and all existing or future policies, endorsements, riders and other contracts of
insurance, annuity contracts, including, without limitation, guaranteed
investment contracts, and funding agreements issued, assumed or renewed by the
Issuer on or prior to the date hereof or hereafter created, all claims under
separate account agreements to the extent such claims are not fully discharged
by the assets held by the Issuer in the applicable separate accounts and all
claims of The Life Insurance Company Guaranty Corporation of New York or any
other guaranty corporation or association of New York or any other jurisdiction,
other than claims described in clause (i) of the definition of "Other Creditor
Claims" below and claims for interest.
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As used herein, "Other Creditor Claims" shall mean all other
claims which, pursuant to Section 7435, have priority over claims with respect
to the Securities. Under Section 7435 as currently in effect, such other claims
include (i) claims with respect to the actual and necessary costs and expenses
of administration incurred by a liquidator, conservator, rehabilitator or
ancillary rehabilitator under Section 7435; (ii) claims with respect to the
actual and necessary costs and expenses of administration incurred by The Life
Insurance Guaranty Corporation or The Life Insurance Company Guaranty
Corporation of New York; (iii) claims of The Life Insurance Company Guaranty
Corporation for certain funds loaned to the Superintendent under Section 7713(d)
of the New York Insurance Law; (iv) debts up to $1,200 due to employees for
services performed within one year of the commencement of rehabilitation,
liquidation, conservation, dissolution or reorganization proceedings; (v) claims
for payment for goods furnished or services rendered in the ordinary course of
business within 90 days of the declaration of the impairment or insolvency of
the Issuer; (vi) claims of the federal or any state or local government (except
in the case of claims for a penalty or forfeiture which are included only to the
extent of pecuniary loss and reasonable costs occasioned by the act giving rise
to the forfeiture or penalty); and (vii) claims of general creditors and all
other claims having priority under Section 7435.
11. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities, the Issuer shall, in
accordance with Rule 144A, comply with the terms of the agreements set forth in
Section 7 of the Fiscal Agency Agreement. The provisions of Sections 7 and 8 of
the Fiscal Agency Agreement are hereby incorporated mutatis mutandis herein.
12. In case this Security shall become mutilated, defaced,
destroyed, lost or stolen, the Issuer will execute and upon the Issuer's request
the Fiscal Agent shall authenticate and deliver a new Security, having a number
not contemporaneously outstanding, of like tenor (including the same date of
issuance) and equal principal amount, registered in the same manner, dated the
date of its authentication and bearing interest from the date to which interest
has been paid on this Security, in exchange and substitution for this Security
(upon surrender and cancellation thereof) or in lieu of and substitution for
this Security. In the case where this Security is destroyed, lost or stolen, the
applicant for a substituted Security shall furnish to the Issuer such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft of this Security, the applicant shall
also furnish to the Issuer satisfactory evidence of the destruction, loss or
theft of this Security and of the ownership thereof, provided, however, that if
the registered holder hereof is, in the judgment of the Issuer, an institution
of recognized responsibility, such holder's written agreement of indemnity shall
be deemed to be satisfactory for the issuance of a new Security in lieu of and
substitution for this Security. The Fiscal Agent shall authenticate any such
substituted Security and deliver the same only upon written request or
authorization of the Issuer. Upon the issuance of any substituted Security, the
Issuer may require the payment by the registered holder thereof of a sum
sufficient to cover fees and expenses connected therewith. In case this Security
has matured or is about to mature and shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except if this Security is mutilated or defaced)
upon compliance by the registered holder with the provisions of this Paragraph
12 as hereinabove set forth.
13. Section 10 of the Fiscal Agency Agreement, which Section is hereby
incorporated mutatis mutandis by reference herein, provides that, with certain
exceptions as therein provided and with the consent of the holders of a majority
of the principal amount of the Outstanding Securities of this series present at
a meeting duly called pursuant thereto or by written consent of such percentage
of the principal amount of all Outstanding Securities, the Issuer and the Fiscal
Agent may, with the prior approval of the Superintendent, modify, amend or
supplement the Fiscal Agency Agreement or the terms of the Securities of this
series or may give consents or waivers or take other actions with respect
thereto. Any such modification, amendment, supplement, consent, waiver or other
B-11
action shall be conclusive and binding on the holder of this Security and on all
future holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange heretofore or in lieu hereof, whether or not
notation thereof is made upon this Security. The Fiscal Agency Agreement and the
terms of the Securities may, with the prior approval of the Superintendent, be
modified or amended by the Issuer and the Fiscal Agent, without the consent of
any holders of Securities, for the purpose of (a) adding to the covenants of the
Issuer for the benefit of the holders of Securities, or (b) surrendering any
right or power conferred upon the Issuer, or (c) securing the Securities
pursuant to the requirements hereof, thereof or otherwise, or (d) evidencing the
succession of another corporation to the Issuer and the assumption by such
successor of the covenants and obligations of the Issuer herein and in the
Fiscal Agency Agreement as permitted by the Securities and the Fiscal Agency
Agreement, or (e) modifying the restrictions on, and procedures for, resale and
other transfers of the Securities to the extent required by any change in
applicable law or regulation (or the interpretation thereof) or in practices
relating to the resale or transfer of restricted securities generally, or (f)
accommodating the issuance, if any, of Securities in book-entry or certificated
form and matters related thereto which do not adversely affect the interest of
any Security holder in any material respect, or (g) curing any ambiguity or
correcting or supplementing any defective provision contained herein or in the
Fiscal Agency Agreement in a manner which does not adversely affect the interest
of any Security holder in any material respect, or (h) effecting any amendment
which the Issuer and the Fiscal Agent may determine is necessary or desirable
and which shall not adversely affect the interest of any Security holder, to all
of which each holder of any Security, by acceptance thereof, consents.
14. Holders of Securities may enforce the Fiscal Agency Agree-
ment or the Securities only in the manner set forth below.
(a) In the event that any state or federal agency shall obtain
an order or grant approval for the rehabilitation, liquidation, conservation or
dissolution of the Issuer, the Securities of all Series will upon the obtaining
of such an order or the granting of such approval immediately mature in full
without any action on the part of the Fiscal Agent or any holder of the
Securities, with payment thereon being subject to the Payment Restrictions, and
any restrictions imposed as a consequence of, or pursuant to, such proceedings.
Notwithstanding any other provision of this Security or the Fiscal Agency
Agreement, in no event shall the Fiscal Agent or any holder of the Securities be
entitled to declare the Securities to immediately mature or otherwise be
immediately payable.
(b) In the event that the Superintendent approves in whole or in part a
payment of any interest on or principal of any Securities and the Issuer fails
to pay the full amount of such approved payment on the date such amount is
scheduled to be paid, such approved amount will be immediately payable on such
date without any action on the part of the Fiscal Agent or any holder of
Securities. In the event that the Issuer fails to perform any of its other
obligations hereunder or under the Fiscal Agency Agreement, each holder of the
Securities may pursue any available remedy to enforce the performance of any
provision of such Securities or the Fiscal Agency Agreement, provided, however,
that such remedy shall in no event include the right to declare the Securities
immediately payable, and shall in no circumstances be inconsistent with the
provisions of Section 1307. A delay or omission by any Security holder in
exercising any right or remedy accruing as a result of the Issuer's failure to
perform its obligations hereunder or under the Fiscal Agency Agreement and the
continuation thereof shall not impair such right or remedy or constitute a
waiver of or acquiescence in such non-performance by the Issuer. To the extent
permitted by law, no remedy is exclusive of any other remedy and all remedies
are cumulative.
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(c) Notwithstanding any other provision of this Security or
the Fiscal Agency Agreement, the right of any holder of Securities to receive
payment of the principal of and interest on such holder's Securities on or after
the respective scheduled payment or scheduled maturity dates expressed in such
Securities, or to bring suit for the enforcement of any such payment on or after
such respective scheduled payment or scheduled maturity dates, in each case
subject to such payment on such dates having received the approval of the
Superintendent pursuant to the Payment Restrictions, including the approval of
the Superintendent pursuant to Section 1307, is absolute and unconditional and
shall not be impaired or affected without the consent of the holder.
15. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, subject to the Payment Restrictions, to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
B-13
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER OF
RESTRICTED DEFINITIVE SECURITY
(Transfers and exchanges pursuant to ss. 6(b)
of the Fiscal Agency Agreement)
The Chase Manhattan Bank, N.A.
as Fiscal Agent
4 Chase MetroTech Center, 3rd Floor
Brooklyn, New York 11245
Re: The Equitable Life Assurance Society of the United States,
____% Surplus Notes scheduled to mature on December 1, 20
(the "Securities")
Reference is hereby made to the Fiscal Agency Agreement, dated
as of December 1, 1995 (the "Fiscal Agency Agreement"), between The Equitable
Life Assurance Society of the United States, as Issuer, and The Chase Manhattan
Bank, N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have the meanings given to them in the Fiscal Agency Agreement.
This letter relates to $_________________ principal amount of
Restricted Definitive Securities held in definitive form by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such
Securities, the Transferor does hereby certify that (i) such Securities are
owned by the Transferor and are being exchanged without transfer or (ii) such
transfer has been effected pursuant to and in accordance with Rule 144A, Rule
144 or Rule 903 or Rule 904 under the United States Securities Act of 1933, as
amended (the "Act"), and accordingly the Transferor does hereby further certify
that:
I. if the transfer is being effected pursuant to and in
accordance with Rule 144A under the Act, that the Securities are being
transferred to a person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more
accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States
or any other jurisdiction; or
II. if the transfer is being effected pursuant to Rule 144,
the Securities are being transferred in a transaction in accordance
with Rule 144; or
III. if the transfer is being effected pursuant to Rule 903 or
904:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either:
(A) at the time the buy order was
originated, the transferee was outside the United
States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was
outside the United States, or
(B) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Purchasers. Terms used in
this certificate and not otherwise defined in the Fiscal Agency Agreement have
the meanings set forth in Rule 144A, Rule 144 or Regulation S under the Act.
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: ______________, ____
cc: The Equitable Life Assurance Society of the United States
C-2