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EXHIBIT 4.16
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COMMON SECURITIES GUARANTEE AGREEMENT
METLIFE CAPITAL TRUST II
DATED AS OF _________, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATIONS................................... 2
ARTICLE II
GUARANTEE......................................................... 4
SECTION 2.1 Guarantee.......................................... 4
SECTION 2.2 Waiver of Notice and Demand........................ 4
SECTION 2.3 Obligations Not Affected........................... 4
SECTION 2.4 Rights of Holders.................................. 5
SECTION 2.5 Guarantee of Payment............................... 6
SECTION 2.6 Subrogation........................................ 6
SECTION 2.7 Independent Obligations............................ 6
ARTICLE III
SUBORDINATION .................................................... 6
ARTICLE IV
TERMINATION....................................................... 7
ARTICLE V
MISCELLANEOUS..................................................... 7
SECTION 5.1 Successors and Assigns............................. 7
SECTION 5.2 Amendments......................................... 7
SECTION 5.3 Notices............................................ 7
SECTION 5.4 Benefit............................................ 8
SECTION 5.5 Governing Law...................................... 8
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COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as
of _______, 2001 is executed and delivered by MetLife, Inc., a Delaware
corporation (the "Guarantor") for the benefit of the Holders (as defined herein)
from time to time of the Common Securities (as defined herein) of MetLife
Capital Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of _______, 2001 among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof _______ preferred securities, liquidation amount
$____ per preferred security, having an aggregate liquidation amount of $_______
designated the ____% Preferred Securities (the "Preferred Securities");
WHEREAS, pursuant to the Declaration, the Issuer is issuing on the date
hereof _______ common securities, liquidation amount $______ per common
security, having an aggregate liquidation amount of $_______ designated the ___%
Common Securities (the "Common Securities");
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of the
Preferred Securities, except that if an event of default under the Indenture (as
defined herein), has occurred and is continuing, the rights of Holders of the
Common Securities to receive Guarantee Payments under this Common Securities
Guarantee are subordinated to the rights of holders to receive Guarantee
Payments under the Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Common Securities Guarantee for the benefit of the
Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATIONS
In this Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Common Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Article I;
(b) a term defined anywhere in this Common Securities Guarantee
has the same meaning throughout;
(c) all references to "the Common Securities Guarantee" or "this
Common Securities Guarantee" are to this Common Securities
Guarantee as modified, supplemented or amended from time to
time;
(d) all references in this Common Securities Guarantee to Articles
and Sections are to Articles and Sections of this Common
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Common Securities Guarantee, unless
otherwise defined in this Common Securities Guarantee or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given in the Indenture.
"Debenture Issuer" means the Guarantor in its capacity as the issuer of
the Debentures.
"Debentures" means the series of debentures of the Guarantor designated
[ ] held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Distribution" has the same meaning as given in the Declaration.
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"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Common Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Common Securities to
the extent the Issuer shall have funds available therefor, and
(ii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Common
Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount of such Common Securities plus all
accrued and unpaid Distributions on such Common Securities to and
including the date of payment, to the extent the Issuer shall have
funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the
Issuer (amounts in clause (a) or (b), the "Liquidation Distribution").
If an event of default under the Indenture has occurred and is
continuing, the rights of Holders of the Common Securities to receive
payments under this Common Securities Guarantee Agreement are
subordinated to the rights of holders of Preferred Securities to
receive Guarantee Payments under the Preferred Securities Guarantee
Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Securities.
"Indenture" has the same meaning as given in the Declaration.
"Majority in liquidation amount of the Common Securities" means, except
as provided by the Trust Indenture Act, a vote by Holders of Common Securities,
voting separately as a class, of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on liquidation or
otherwise) of all Common Securities.
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ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counter-claim that the Issuer may have or assert. 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 Issuer to pay
such amounts to the Holders.
If an event of default under the Indenture has occurred and is
continuing, the rights of Holders of the Common Securities to receive Guarantee
Payments under this Common Securities Guarantee are subordinated to the rights
of holders to receive Guarantee Payments under the Preferred Securities
Guarantee.
SECTION 2.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer 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 2.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Common Securities Guarantee shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Common
Securities to be performed or observed by the Issuer;
(b) 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 Common Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
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(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(d) any invalidity of, or defect or deficiency in, the Common
Securities;
(e) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(f) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 2.3 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 2.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of Common
Securities may by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Common Securities Guarantee, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
(b) Any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Common Securities Guarantee, without
first instituting a legal proceeding against the Issuer or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder may directly institute a proceeding against the Guarantor for
enforcement of the Common Securities Guarantee for such payment. The Guarantor
waives any right or remedy to require that any action on this Common Securities
Guarantee be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
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SECTION 2.5 Guarantee of Payment
This Common Securities Guarantee creates a guarantee of payment and not
of collection.
SECTION 2.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Common Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Common Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Common Securities
Guarantee. 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 2.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (f), inclusive, of Section 2.3 hereof.
ARTICLE III
SUBORDINATION
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those obligations or
liabilities ranking equal or subordinate to the Common Securities Guarantee by
their terms, (ii) equally with any other securities, liabilities or obligations
that may have equal ranking by their terms; and (iii) senior to the Guarantor's
Common Stock, $0.01 par value.
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ARTICLE IV
TERMINATION
This Common Securities Guarantee shall terminate upon (i) the
distribution of the Debentures to all Holders or (ii) full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Common Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid under the Common
Securities or under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns
All guarantees and agreements contained in this Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Common Securities Guarantee may only be amended with the prior approval of the
Holders of at least a Majority in liquidation amount of the outstanding Common
Securities. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders apply to the giving of such approval.
SECTION 5.3 Notices
All notices provided for in this Common Securities Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered
by registered or certified mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders):
MetLife, Inc.
Xxx Xxxxxxx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Treasurer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxxxxx, Esq.
(b) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, 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 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 5.4 Benefit
This Common Securities Guarantee is solely for the benefit of the
Holders and is not separately transferable from the Preferred Securities.
SECTION 5.5 Governing Law
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
METLIFE, INC,
as Guarantor
By: _____________________________
Name:
Title:
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