EXHIBIT 4.69
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GUARANTEE AGREEMENT
by and between
METLIFE, INC.,
as Guarantor
and
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,
as Guarantee Trustee
relating to
METLIFE CAPITAL TRUST III
Dated as of June 21, 2005
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METLIFE, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and Guarantee
Agreement, dated as of June 21, 2005
Trust Indenture
Act Section Guarantee Section
--------------- -----------------
Section. 310(a) .................................. 4.1(a)
(b) .................................. 2.8, 4.1(c)
(c) .................................. Not applicable
Section. 311(a) .................................. 2.2(b)
(b) .................................. 2.2(b)
(c) .................................. Not applicable
Section. 312(a) .................................. 2.2(a)
(b) .................................. 2.2(b)
Section. 313 .................................. 2.3
Section. 314(a) .................................. 2.4
(b) .................................. Not applicable
(c) .................................. 2.5
(d) .................................. Not applicable
(e) .................................. 1.1, 2.5, 3.2
(f) .................................. 2.1, 3.2
Section. 315(a) .................................. 3.1(d)
(b) .................................. 2.7
(c) .................................. 3.1(c)
(d) .................................. 3.1(d)
(e) .................................. 2.1
Section. 316(a) .................................. 1.1, 2.6, 5.4
(b) .................................. 5.4
(c) .................................. 2.1
Section. 37(a) .................................. 2.1
(b) .................................. 2.1
Section. 318(a) .................................. 2.1
(b) .................................. 2.1
(c) .................................. 2.1
Note: This reconciliation and tie shall not, for any purpose be deemed to be
part of the Guarantee Agreement.
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 Definitions....................................................... 1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.................................. 5
Section 2.2 List of Holders................................................... 5
Section 2.3 Reports by the Guarantee Trustee.................................. 5
Section 2.4 Periodic Reports to the Guarantee Trustee......................... 5
Section 2.5 Evidence of Compliance with Conditions Precedent.................. 6
Section 2.6 Events of Default; Waiver......................................... 6
Section 2.7 Event of Default; Notice.......................................... 6
Section 2.8 Conflicting Interests............................................. 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee........................ 7
Section 3.2 Certain Rights of Guarantee Trustee............................... 8
Section 3.3 Compensation; Indemnity; Fees..................................... 10
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee; Eligibility.................................... 10
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee..... 11
ARTICLE V
GUARANTEE
Section 5.1 Guarantee......................................................... 12
Section 5.2 Waiver of Notice and Demand....................................... 12
Section 5.3 Obligations Not Affected.......................................... 12
Section 5.4 Rights of Holders................................................. 13
Section 5.5 Guarantee of Payment.............................................. 13
Section 5.6 Subrogation....................................................... 13
Section 5.7 Independent Obligations........................................... 14
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1 Subordination..................................... 14
Section 6.2 Pari Passu Guarantees............................. 14
Section 6.3 Guarantor Election to End Subordination........... 14
ARTICLE VII
TERMINATION
Section 7.1 Termination....................................... 15
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns............................ 15
Section 8.2 Amendments........................................ 15
Section 8.3 Notices........................................... 15
Section 8.4 Benefit........................................... 16
Section 8.5 Governing Law..................................... 16
Section 8.6 Counterparts...................................... 16
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GUARANTEE AGREEMENT, dated as of June 21, 2005 (the "Guarantee
Agreement"), between MetLife, Inc., a Delaware corporation (the "Guarantor"),
having its principal executive offices at 200 Park Avenue, New York, New York
10166, and J.P. Morgan Trust Company, National Association, a national banking
association, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders from time to time of the Trust Preferred Securities of METLIFE CAPITAL
TRUST III, a Delaware statutory trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of Trust, of even
date herewith (the "Trust Agreement"), among MetLife, Inc., as Sponsor, the
Property Trustee, the Delaware Trustee, and the Administrative Trustees (each as
named therein) and the holders from time to time of undivided beneficial
ownership interests in the assets of the Trust, the Trust is issuing
$1,035,000,000 aggregate Initial Liquidation Amount (as defined in the Trust
Agreement) of its Trust Preferred Securities having the terms set forth in the
Trust Agreement; and
WHEREAS, the Trust Preferred Securities will be issued by the Trust, and
the proceeds thereof, together with the proceeds from the issuance of the
Trust's Common Securities, will be used to purchase the Debentures, which
Debentures will be deposited with J.P. Morgan Trust Company, National
Association, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Trust Preferred
Securities the Guarantee Payments and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of Trust Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article I have the meanings assigned to
them in this Article I, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation;"
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Guarantee Agreement; and
(f) The words "hereby," "herein," "hereof" and "hereunder" and other
words of similar import refer to this Guarantee Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Officer" of any Person means any executive officer of such
Person or any person authorized by or pursuant to a resolution of the Board of
Directors (or equivalent body) of such Person.
"Base Indenture" has the meaning specified in the Trust Agreement.
"Board of Directors" means the board of directors of the Guarantor or any
committee of the board of directors of the Guarantor, comprised of one or more
members of the board of directors of the Guarantor or officers of the Guarantor,
or both.
"Common Securities" has the meaning specified in the Trust Agreement.
"Debentures" has the meaning specified in the Trust Agreement.
"Distributions" has the meaning specified in the Trust Agreement.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement; or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified, amended
or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by or on behalf of the Trust: (i) any accumulated and
unpaid Distributions required to be paid on the Trust Preferred Securities, to
the extent the Trust shall have funds on hand available therefor at such time;
(ii) the Redemption Price with respect to any Trust Preferred Securities called
for
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redemption by the Trust, to the extent the Trust shall have funds on hand
available therefor at such time; and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Trust, other than in connection
with the distribution of Debentures to the Holders or the redemption of the
Trust Preferred Securities, the lesser of (a) the Liquidation Distribution with
respect to the Trust Preferred Securities, to the extent that the Trust shall
have funds on hand available therefor at such time, and (b) the amount of assets
of the Trust remaining available for distribution to Holders on liquidation of
the Trust.
"Guarantee Trustee" means J.P. Morgan Trust Company, National Association,
solely in its capacity as Guarantee Trustee and not in its individual capacity,
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement, and thereafter
means each such Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any Trust
Preferred Securities; provided, however, that in determining whether the Holders
of the requisite percentage of Trust Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" has the meaning specified in the Trust Agreement.
"Indenture Supplement" has the meaning specified in the Trust Agreement.
"Liquidation Distribution" has the meaning specified in the Trust
Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Accreted Liquidation Amount of the Trust Preferred
Securities" has the meaning specified in the Trust Agreement.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by any two Authorized Officers of such person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in each such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, statutory or business trust, unincorporated
association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Redemption Price" has the meaning set forth in the Trust Agreement.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the corporate
trust department of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Senior Debt" has the meaning set forth in Section 7.1 of the Indenture
Supplement.
"Trust Preferred Securities" has the meaning specified in the Trust
Agreement.
"Stock Purchase Date" has the meaning specified in the Stock Purchase
Contract Agreement, dated as of the date hereof, among the Guarantor and J.P.
Morgan Trust Company, National Association, as Stock Purchase Contract Agent.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust" has the meaning specified in the first paragraph of this Guarantee
Agreement.
"Trust Agreement" means the Amended and Restated Declaration of Trust of
the Trust referred to in the recitals to this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended as
in force at the date as of which this Guarantee Agreement was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
"Vice President," when used with respect to the Guarantor, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
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ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
The Trust Indenture Act shall apply as a matter of contract to this
Guarantee Agreement for purposes of interpretation, construction and defining
the rights and obligations hereunder, and this Guarantee Agreement, the
Guarantor and the Guarantee Trustee shall be deemed for all purposes hereof to
be subject to and governed by the Trust Indenture Act to the same extent as
would be the case if this Guarantee Agreement were qualified under the Trust
Indenture Act on the date hereof. If and to the extent that any provision of
this Guarantee Agreement limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
Section 2.2 List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semi-annually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (a "List of Holders") as of a date not more than 15
days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and has not
otherwise been received by the Guarantee Trustee in its capacity as such. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
Within 60 days after May 15 each year, commencing May 15, 2006, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. If this Guarantee Agreement
shall have been qualified under the Trust Indenture Act, the Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
Section 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee and the Holders such
documents, reports and information, if any, as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by Section 314 of
the Trust Indenture Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act, provided that such documents, reports
and information shall be required to be provided to the Securities and
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Exchange Commission only if this Guarantee Agreement shall have been qualified
under the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
The Holders of at least a Majority in Accreted Liquidation Amount of the
Trust Preferred Securities may, on behalf of the Holders of all the Trust
Preferred Securities, waive any past default or Event of Default and its
consequences, other than an Event of Default arising from the nonpayment of
amounts that shall have become due by the terms of this Guarantee Agreement.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
Section 2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 30 days after the occurrence of an
Event of Default known to the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notice of any such Event of Default known to
the Guarantee Trustee, unless such Event of Default has been cured before the
giving of such notice, provided that, except in the case of a default in the
payment of a Guarantee Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the Board of Directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
Section 2.8 Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement (including pursuant to Section 2.1), and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Guarantee Agreement (including pursuant to Section 2.1); and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement (but in the case of any such certificates or
opinions that by any provision hereof are specifically required to
be furnished to the Guarantee
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Trustee, the Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of
this Guarantee Agreement);
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Accreted
Liquidation Amount of the Trust Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Guarantee Agreement relating to the conduct or affecting the liability of or
affording protection to the Guarantee Trustee shall be subject to the provisions
of this Section.
Section 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
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(iv) The Guarantee Trustee may consult with legal counsel, and the
advice or opinion of such legal counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or opinion. Such legal counsel
may be legal counsel to the Guarantor or any of its Affiliates and may be
one of its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder unless such Holder shall have
provided to the Guarantee Trustee such adequate security and indemnity
satisfactory to it against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; nothing contained herein shall,
however, relieve the Guarantee Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or waived) to
exercise such of the rights and powers vested in it by this Guarantee
Agreement, and to use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit at the expense of the Guarantor and shall
incur no liability of any kind by reason of such inquiry or investigation.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in Accreted Liquidation Amount of the Trust
Preferred Securities, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received and shall
not be liable to any Person for so refraining, and (C) shall be protected
in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
9
law, to perform any such act or acts or to exercise any such right, power, duty
or obligation. No permissive power or authority available to the Guarantee
Trustee shall be construed to be a duty to act in accordance with such power and
authority.
(c) The recitals contained herein and in the Trust Preferred Securities
and the Trust Agreement shall be taken as the statements of the Guarantor and
the Trust, respectively, and the Guarantee Trustee assumes no responsibility for
this correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee Agreement, the Guarantee or the Trust
Preferred Securities.
Section 3.3 Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed by the
Guarantor and the Guarantee Trustee from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as shall be determined to have been caused by
its own negligence or bad faith; and
(c) to indemnify the Guarantee Trustee, any Affiliate of the Guarantee
Trustee and any officer, director, shareholder, employee, representative or
agent of the Guarantee Trustee (each, an "Indemnified Person") for, and to hold
each Indemnified Person harmless against, any loss, liability, claim, damage or
expense incurred without negligence, willful misconduct or bad faith on the part
of the Indemnified Person, arising out of or in connection with the acceptance
or administration of this Guarantee Agreement, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
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ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a Person meeting the requirements of Section
310(a) of the Trust Indenture Act. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then, for the purposes of this Section
4.1 and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or
removed at any time by the action of the Holders of a Majority in Accreted
Liquidation Amount of the Trust Preferred Securities delivered to the Guarantee
Trustee and the Guarantor (i) for cause or (ii) if a Debenture Event of Default
(as defined in the Trust Agreement) shall have occurred and be continuing at any
time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by giving written
notice thereof to the Holders and the Guarantor and by appointing a successor
Guarantee Trustee, which successor shall be acceptable to the Guarantor. The
Guarantee Trustee shall appoint a successor by requesting from at least three
Persons meeting the requirements of Section 4.1(a) their expenses and charges to
serve as the Guarantee Trustee, and selecting the Person who agrees to the
lowest expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed and shall have accepted
such appointment. No removal or resignation of a Guarantee Trustee shall be
effective until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and, in the case of any
resignation, the resigning Guarantee Trustee.
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(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Holders and the Guarantor of a notice of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) If a resigning Guarantee Trustee shall fail to appoint a successor, or
if a Guarantee Trustee shall be removed or become incapable of acting as
Guarantee Trustee and a replacement shall not be appointed prior to such
resignation or removal, or if a vacancy shall occur in the office of Guarantee
Trustee for any cause, the Holders of the Trust Preferred Securities, by the
action of the Holders of record of not less than 25% in aggregate Accreted
Liquidation Amount (as defined in the Trust Agreement) of the Trust Preferred
Securities then Outstanding (as defined in the Trust Agreement) delivered to
such Guarantee Trustee, may appoint a Successor Guarantee Trustee or Trustees.
If no successor Guarantee Trustee shall have been so appointed by the Holders of
the Trust Preferred Securities and accepted appointment, any Holder, on behalf
of such Holder and all others similarly situated, or any other Guarantee
Trustee, may petition any court of competent jurisdiction for the appointment of
a successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Trust), as and when due, regardless of any defense, right
of set-off or counterclaim that the Trust may have or assert, except the defense
of payment. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Trust to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Trust Preferred Securities to be
performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of any portion of
the Distributions (other than an extension of time for payment of Distributions
that results from the extension of any interest payment period on the Debentures
as provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Trust Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Trust Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in Accreted
Liquidation Amount of the Trust Preferred Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Trust or any
other Person.
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Section 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Trust) or upon the distribution of Debentures to Holders as provided in
the Trust Agreement.
Section 5.6 Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Trust in respect of any amounts paid to the Holders by the Guarantor
under this Guarantee Agreement; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, if, at the time of any such payment, any amounts
are due and unpaid under this Guarantee Agreement. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
Section 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Trust Preferred Securities
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1 Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Debt of the Guarantor to the extent and
in the manner set forth in the Indenture with respect to the Debt Securities (as
defined therein), and the provisions of Article XV of the Base Indenture as
modified by Section 6.1 of the Indenture Supplement will apply, mutatis
mutandis, to the obligations of the Guarantor hereunder. The obligations of the
Guarantor hereunder do not constitute Senior Debt of the Guarantor.
Section 6.2 Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any statutory trust, (ii) the Indenture and the
Debt Securities (as defined therein) issued thereunder, (iii) any expense
agreements entered into by the Guarantor in connection with the offering of
preferred or capital
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securities by any statutory trust, and (iv) any other security, guarantee or
other agreement or obligation that is expressly stated to rank pari passu with
the obligations of the Guarantor under this Guarantee Agreement or with any
obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
Section 6.3 Guarantor Election to End Subordination.
The Guarantor may elect, at any time effective on or after the Stock
Purchase Date, including in connection with a remarketing of the Trust Preferred
Securities that its obligations hereunder shall be senior obligations instead of
subordinated obligations, in which case the provisions of Section 6.1 hereof
shall thereafter no longer apply to the obligations of Guarantor under this
Guarantee Agreement. The Guarantor shall give the Guarantee Trustee notice of
any such election not later than the effective time, and shall promptly issue a
press release through Bloomberg Business News or other reasonable means of
distribution.
ARTICLE VII
TERMINATION
Section 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Trust Preferred
Securities, (ii) the distribution of Debentures to the Holders in exchange for
all of the Trust Preferred Securities or (iii) full payment of the amounts
payable in accordance with Article IX of the Trust Agreement upon liquidation of
the Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder is required to repay any sums paid with respect to Trust Preferred
Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Trust Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article X of the Base
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
Section 8.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a
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Majority in Accreted Liquidation Amount of the Trust Preferred Securities. The
provisions of Article VI of the Trust Agreement concerning meetings of the
Holders shall apply to the giving of such approval.
Section 8.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set forth
below or such other address or facsimile number as the Guarantor may give notice
to the Guarantee Trustee and the Holders:
MetLife, Inc.
27-01 Queens Plaza North
Long Island City, New York 11101
Attention: Treasurer
Facsimile: (212) 578-0266
(b) if given to the Guarantee Trustee, to the address or telecopy number
set forth below or such other address or facsimile number as the Guarantee
Trustee may give notice to the Guarantor and Holders:
J.P. Morgan Trust Company, National Association
Worldwide Securities Services
4 New York Plaza, 15th Floor
New York, NY 10004
Attention: Worldwide Securities Services
Telephone: (212) 623-5233
Facsimile: (212) 623-6215
with a copy to:
MetLife Capital Trust III
c/o Chase Bank USA, National Association
500 Stanton Christiana Road
3rd Floor/OPS4
Newark, Delaware 19713
Attention: Institutional Trust Services
Facsimile: (302) 552-6280
(c) if given to any Holder, at the address set forth on the books and
records of the Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address
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of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
Section 8.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Trust Preferred Securities.
Section 8.5 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 8.6 Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
METLIFE, INC.,
as Guarantor
By: /s/ Joseph Prochaska, Jr.
-------------------------------
Name:
Title:
J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Guarantee Trustee
By: /s/ Paul Schmalzel
-------------------------------
Name: Paul Schmalzel
Title: Authorized Signer