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Exhibit 4.10
EXECUTION COPY
METLIFE, INC.
THE BANK OF NEW YORK
as Collateral Agent, Custodial Agent
and Securities Intermediary
AND
BANK ONE TRUST COMPANY, N.A.
as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of April 7, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
Section 1.1 Definitions ................................................................. 2
ARTICLE II
Pledge; Control and Perfection
Section 2.1 The Pledge .................................................................. 6
Section 2.2 Control and Perfection ...................................................... 7
ARTICLE III
Distributions on Pledged Collateral
ARTICLE IV
Substitution, Release, Repledge and Settlement of Capital Securities
Section 4.1 Substitution for Capital Securities or Treasury Consideration and the
Creation of Stripped Units .................................................. 11
Section 4.2 Substitution for Treasury Securities and the Creation of Normal Units ....... 11
Section 4.3 Termination Event ........................................................... 12
Section 4.4 Early Settlement; Merger Early Settlement ................................... 13
Section 4.5 Remarketing; Application of Proceeds; Settlement ............................ 13
ARTICLE V
Voting Rights -- Capital Securities
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ARTICLE VI
Rights and Remedies; Distribution of the Debentures
Section 6.1 Rights and Remedies of the Collateral Agent ................................. 16
Section 6.2 Distribution of the Debentures .............................................. 18
Section 6.3 Substitutions ............................................................... 18
ARTICLE VII
Representations and Warranties; Covenants
Section 7.1 Representations and Warranties .............................................. 18
Section 7.2 Covenants ................................................................... 19
ARTICLE VIII
The Collateral Agent, Custodial Agent and Securities Intermediary
Section 8.1 Appointment, Powers and Immunities .......................................... 20
Section 8.2 Instructions of the Company ................................................. 21
Section 8.3 Reliance by Collateral Agent ................................................ 21
Section 8.4 Rights in Other Capacities .................................................. 22
Section 8.5 Non-Reliance on Collateral Agent ............................................ 22
Section 8.6 Compensation and Indemnity .................................................. 22
Section 8.7 Failure to Act .............................................................. 23
Section 8.8 Resignation of Collateral Agent, Custodial Agent, or Securities
Intermediary ................................................................ 24
Section 8.9 Right to Appoint Agent or Advisor ........................................... 25
Section 8.10 Survival .................................................................... 25
Section 8.11 Exculpation ................................................................. 25
ARTICLE IX
Amendment
Section 9.1 Amendment Without Consent of Holders ........................................ 25
Section 9.2 Amendment with Consent of Holders ........................................... 26
Section 9.3 Execution of Amendments ..................................................... 27
Section 9.4 Effect of Amendments ........................................................ 27
Section 9.5 Reference to Amendments ..................................................... 27
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ARTICLE X
Miscellaneous
Section 10.1 No Waiver ................................................................... 27
Section 10.2 GOVERNING LAW ............................................................... 28
Section 10.3 Notices ..................................................................... 28
Section 10.4 Successors and Assigns ...................................................... 28
Section 10.5 Counterparts ................................................................ 29
Section 10.6 Severability ................................................................ 29
Section 10.7 Expenses, Etc. .............................................................. 29
Section 10.8 Security Interest Absolute .................................................. 29
Section 10.9 Waiver of Jury Trial ........................................................ 30
EXHIBIT A
Instruction from Purchase Contract Agent to Collateral Agent ................................ A-1
EXHIBIT B
Instruction to Purchase Contract Agent ...................................................... B-1
EXHIBIT C
Instruction to Custodial Agent Regarding Remarketing ........................................ C-1
EXHIBIT D
Instruction to Custodial Agent Regarding Withdrawal from Remarketing ........................ D-1
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 7, 2000 (this "Agreement"), among
MetLife, Inc., a Delaware corporation (the "Company"), The Bank of New York, a
New York banking corporation, not individually but solely as collateral agent
(in such capacity, together with its successors in such capacity, the
"Collateral Agent"), as custodial agent (in such capacity, together with its
successors in such capacity, the "Custodial Agent") and as "securities
intermediary" as defined in Section 8-102(a)(14) of the Code (as defined herein)
(in such capacity, together with its successors in such capacity, the
"Securities Intermediary"), and Bank One Trust Company, N.A., not individually
but solely as purchase contract agent and as attorney-in-fact of the Holders (as
defined in the Purchase Contract Agreement) from time to time of the Securities
(as hereinafter defined) (in such capacity, together with its successors in such
capacity, the "Purchase Contract Agent") under the Purchase Contract Agreement
(as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to 17,500,000 Units of the Company (20,125,000 if
the Underwriters' over-allotment option pursuant to the Underwriting Agreement
(as defined in the Declaration) is exercised in full), having a Stated Amount of
$50 per Unit, all of which will initially be Normal Units.
Each Normal Unit will be comprised of (a) a stock purchase contract
(the "Purchase Contract") under which the holder will be required to purchase
from the Company and the Company will be required to sell to such holder not
later than May 15, 2003 (the "Stock Purchase Date"), for $50.00, a number of
shares of common stock, $0.01 par value per share (the "Common Stock"), of the
Company equal to the Settlement Rate (as defined below), and (b) either
beneficial ownership of (x) a Capital Security (as defined below) or (y)
following the remarketing of the Capital Securities in accordance with the
Purchase Contract Agreement and the Remarketing Agreement (as defined below),
the appropriate Treasury Consideration (as defined in the Purchase Contract
Agreement).
In accordance with the terms of the Purchase Contract Agreement, a
holder of Normal Units may separate the Capital Securities or the appropriate
Treasury Consideration, as applicable, from the related Purchase Contracts by
substituting for such Capital Securities or the appropriate Treasury
Consideration, as the case may be, Treasury
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Securities (as defined in the Purchase Contract Agreement) that will pay in the
aggregate an amount equal to the aggregate Stated Amount (as defined below) of
such Normal Units. Upon such separation, the Normal Units will become Stripped
Units. Each Stripped Unit will be comprised of (a) a Purchase Contract under
which the holder will purchase from the Company not later than the Stock
Purchase Date, for $50.00, a number of shares of Common Stock of the Company
equal to the Settlement Rate, and (b) a 1/20 undivided beneficial interest in a
zero-coupon U.S. Treasury Security (CUSIP No. 000000XX0) maturing on May 15,
2003 that will pay $1,000 on such maturity date (the "Treasury Securities").
Pursuant to the terms of the Declaration (as defined below), MetLife
Capital Trust I, a statutory business trust formed under the laws of the State
of Delaware (the "Trust"), will issue 17,500,000 (20,125,000 if the
Underwriters' over-allotment option pursuant to the Underwriting Agreement is
exercised in full) 8% Capital Securities (the "Capital Securities") and 8%
common securities (the "Common Securities"), in each case having a stated
liquidation value equal to the Stated Amount.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders, from time to time, of the Securities have
irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such
Holders, among other things, to execute and deliver this Agreement on behalf of
such Holders and to grant the pledge provided hereby of the Capital Securities,
any Treasury Consideration and any Treasury Securities delivered in exchange
therefor to secure each Holder's obligations under the related Purchase
Contract, as provided herein and subject to the terms hereof. Upon such pledge,
the Capital Securities, any Treasury Consideration and the Treasury Securities
will be beneficially owned by the Holders but will be owned of record by the
Purchase Contract Agent subject to the Pledge hereunder.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary, the Custodial Agent and the Purchase Contract Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the
Securities, agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. For all purposes of this agreement, except as
otherwise expressly provided or unless the context otherwise requires:
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(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(c) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (i) Act, (ii) Certificate, (iii) Debentures,
(iv) Early Settlement, (v) Early Settlement Amount, (vi) Failed
Remarketing, (vii) First Supplemental Indenture, (viii) Holder, (ix)
Indenture, (x) Merger Early Settlement, (xi) Merger Early Settlement
Amount, (xii) Normal Unit, (xiii) Opinion of Counsel, (xiv) Outstanding
Securities, (xv) Remarketing Agent, (xvi) Remarketing Agreement, (xvii)
Remarketing Date, (xviii) Settlement Rate, (xix) Stated Amount, (xx)
Stripped Unit, (xxi) Subsequent Remarketing Date, (xxii) Termination
Event, (xxiii) Treasury Consideration, and (xxiv) Unit;
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
Supplemental hereto entered into pursuant to the applicable provisions hereof.
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Business Day" means any day that is not a Saturday, Sunday or day on
which banking institutions and trust companies in The City of New York or at a
place of payment are authorized or required by law, regulation or executive
order to close.
"Capital Securities" has the meaning specified in the Recitals.
"Code" has the meaning specified in Section 6.1 hereof.
"Collateral" has the meaning specified in Section 2.1 hereof.
"Collateral Account" means the securities account (number 245955)
maintained at The Bank of New York in the name "Bank One Trust Company, N.A., as
Purchase Contract Agent on behalf of the holders of certain securities of
MetLife Capital Trust I, Collateral Account subject to the security interest of
The Bank of New York, as Collateral Agent, for the benefit of MetLife, Inc., as
pledgee" and any successor account.
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"Collateral Agent" has the meaning specified in the first paragraph of
this Agreement.
"Common Stock" has the meaning specified in the Recitals.
"Company" means the Person named as the "Company" in the first
paragraph of this Agreement until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Custodial Agent" has the meaning specified in the first paragraph of
this Agreement.
"Debenture Trustee" means The Bank of New York, as trustee under the
Indenture (as defined in the Purchase Contract Agreement) and First Supplemental
Indenture (as defined in the Purchase Contract Agreement) until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of April 7, 2000 among the Company, as sponsor, the trustees named
therein and the holders from time to time of undivided beneficial interests in
the assets of the Trust.
"Intermediary" means any entity that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2.1 hereof.
"Pledged Capital Securities" has the meaning specified in Section 2.1
hereof.
"Pledged Treasury Consideration" has the meaning specified in Section
2.1 hereof.
"Pledged Treasury Securities" has the meaning specified in Section 2.1
hereof.
"Proceeds" means all interest, dividends, cash, instruments,
securities, financial assets (as defined in Sections 8-102(a)(9) of the Code)
and other property from time to time received, receivable or otherwise
distributed upon the sale, exchange, collection or disposition of the Collateral
or any proceeds thereof.
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"Purchase Contract" has the meaning specified in the Recitals.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this Agreement.
"Purchase Contract Agreement" has the meaning specified in the
Recitals.
"Securities" means the Normal Units and Stripped Units collectively.
"Securities Intermediary" has the meaning specified in the first
paragraph of this Agreement.
"Security Entitlement" has the meaning set forth in Section 8-102(a)
(17) of the Code.
"Separate Capital Securities" means any Capital Securities that are not
Pledged Capital Securities.
"Stock Purchase Date" has the meaning specified in the Recitals.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"Transfer" means, with respect to the Collateral and in accordance with
the instructions of the Collateral Agent, the Purchase Contract Agent or the
Holder, as applicable:
(i) in the case of Collateral consisting of securities which cannot be
delivered by book-entry or which the parties agree are to be delivered in
physical form, delivery in appropriate physical form to the recipient
accompanied by any duly executed instruments of transfer, assignments in
blank, transfer tax stamps and any other documents necessary to constitute
a legally valid transfer to the recipient;
(ii) in the case of Collateral consisting of securities maintained in
book-entry form by causing a "securities intermediary" (as defined in
Section 8-102(a)(14) of the
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Code) to (a) credit a "security entitlement" (as defined in Section
8-102(a)(17) of the Code) with respect to such securities to a "securities
account" (as defined in Section 8-501(a) of the Code) maintained by or on
behalf of the recipient and (b) to issue a confirmation to the recipient
with respect to such credit. In the case of Collateral to be delivered to
the Collateral Agent, the Securities Intermediary shall be the securities
intermediary and the securities account shall be the Collateral Account.
"Treasury Security" has the meaning specified in the Recitals.
"Trust" has the meaning specified in the Recitals.
ARTICLE II
Pledge; Control and Perfection
Section 2.1 The Pledge. The Holders from time to time acting through
the Purchase Contract Agent, as their attorney-in-fact, and the Purchase
Contract Agent, as such attorney-in-fact, hereby pledge and grant to the
Collateral Agent, for the benefit of the Company, as collateral security for the
performance when due by such Holders of their respective obligations under the
related Purchase Contracts, a security interest in all of the right, title and
interest of the Purchase Contract Agent and such Holders (a) in (i) the Capital
Securities, Treasury Consideration and Treasury Securities constituting a part
of the Securities, (ii) any Treasury Securities delivered in exchange for any
Capital Securities or Treasury Consideration, as applicable, in accordance with
Section 4.1 hereof, and (iii) any Capital Securities or Treasury Consideration,
as applicable, delivered in exchange for any Treasury Securities in accordance
with Section 4.2 hereof, in each case that have been Transferred to or otherwise
received by the Collateral Agent and not released by the Collateral Agent to
such Holders under the provisions of this Agreement; (b) in the Collateral
Account and all securities, financial assets, security entitlements, cash and
other property credited thereto and all Security Entitlements related thereto;
(c) in any Debentures delivered to the Collateral Agent upon the occurrence of a
liquidation of the Trust as provided in Section 6.2; and (d) all Proceeds of the
foregoing (all of the foregoing, collectively, the "Collateral"). Prior to or
concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Holders of the Securities, shall cause
the Capital Securities comprising a part of the Normal Units to be Transferred
to the Collateral Agent for the benefit of the Company. Such Capital Securities
shall be Transferred by physically delivering such securities to the Securities
Intermediary indorsed in blank and causing the Securities Intermediary to credit
the Collateral Account with such securities and sending the Collateral Agent a
confirmation of the deposit of such securities. Treasury Securities and Treasury
Consideration, as
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applicable, shall be Transferred to the Collateral Account maintained by the
Collateral Agent at the Securities Intermediary by book-entry transfer to the
Collateral Account in accordance with the TRADES Regulations and other
applicable law and by the notation by the Securities Intermediary on its books
that a Security Entitlement with respect to such Treasury Securities or Treasury
Consideration, has been credited to the Collateral Account. For purposes of
perfecting the pledge under applicable law, including, to the extent applicable,
the TRADES Regulations or the Uniform Commercial Code as adopted and in effect
in any applicable jurisdiction, the Collateral Agent shall be the agent of the
Company as provided herein. The pledge provided in this Section 2.1 is herein
referred to as the "Pledge" and the Capital Securities (or the Debentures that
are delivered pursuant to Section 6.2 hereof), Treasury Consideration or
Treasury Securities subject to the Pledge, excluding any Capital Securities (or
the Debentures that are delivered pursuant to Section 6.2 hereof), Treasury
Consideration or Treasury Securities released from the Pledge as provided in
Sections 4.1 and 4.2 hereof, respectively, are hereinafter referred to as
"Pledged Capital Securities," "Pledged Treasury Consideration" or the "Pledged
Treasury Securities," respectively. Subject to the Pledge and the provisions of
Section 2.2 hereof, the Holders from time to time shall have full beneficial
ownership of the Collateral. Whenever directed by the Collateral Agent acting on
behalf of the Company, the Securities Intermediary shall have the right to
reregister the Capital Securities or any other Securities held in physical form
in its name.
Except as may be required in order to release Capital Securities or
Treasury Consideration, as applicable, in connection with a Holder's election to
convert its investment from a Normal Unit to a Stripped Unit, or except as
otherwise required to release Capital Securities as specified herein, neither
the Collateral Agent, the Custodial Agent nor the Securities Intermediary shall
relinquish physical possession of any certificate evidencing a Capital Security
prior to the termination of this Agreement. If it becomes necessary for the
Securities Intermediary to relinquish physical possession of a certificate in
order to release a portion of the Capital Securities evidenced thereby from the
Pledge, the Securities Intermediary shall use its best efforts to obtain
physical possession of a replacement certificate evidencing any Capital
Securities remaining subject to the Pledge hereunder registered to it or
endorsed in blank within fifteen days of the date it relinquished possession.
The Securities Intermediary shall promptly notify the Company and the Collateral
Agent of the Securities Intermediary's failure to obtain possession of any such
replacement certificate as required hereby.
Section 2.2 Control and Perfection. (a) In connection with the Pledge
granted in Section 2.1, and subject to the other provisions of this Agreement,
the Holders from time to time acting through the Purchase Contract Agent, as
their attorney-in-fact, hereby authorize and direct the Securities Intermediary
(without the necessity of obtaining the further consent of the Purchase Contract
Agent or any of the Holders), and the Securities
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Intermediary agrees, to comply with and follow any instructions and entitlement
orders (as defined in Section 8-102(a)(8) of the Code) that the Collateral Agent
may deliver upon the written direction of the Company with respect to the
Collateral Account, the Collateral credited thereto and any Security
Entitlements with respect to any thereof. In the event the Securities
Intermediary receives from the Holders or the Purchase Contract Agent
entitlement orders which conflict with entitlement orders received from the
Collateral Agent, the Securities Intermediary shall follow the entitlement
orders received from the Collateral Agent. Such instructions and entitlement
orders may, without limitation, direct the Securities Intermediary to transfer,
redeem, assign, or otherwise deliver the Capital Securities, the Treasury
Consideration, the Treasury Securities, and any Security Entitlements with
respect thereto or sell, liquidate or dispose of such assets through a broker
designated by the Company, and to pay and deliver any income, proceeds or other
funds derived therefrom to the Company. The Holders from time to time acting
through the Purchase Contract Agent hereby further authorize and direct the
Collateral Agent, as agent of the Company, to, upon written direction of the
Company, itself issue instructions and entitlement orders, and to otherwise take
action, with respect to the Collateral Account, the Collateral credited thereto
and any Security Entitlements with respect thereto, pursuant to the terms and
provisions hereof, all without the necessity of obtaining the further consent of
the Purchase Contract Agent or any of the Holders. The Collateral Agent shall be
the agent of the Company and shall act as directed in writing by the Company.
Without limiting the generality of the foregoing, the Collateral Agent shall
issue entitlement orders to the Securities Intermediary when and as directed in
writing by the Company.
(b) The Securities Intermediary hereby confirms and agrees that: (i)
all securities or other property underlying any financial assets credited to the
Collateral Account shall be registered in the name of the Securities
Intermediary, or its nominee, indorsed to the Securities Intermediary, or its
nominee, or in blank or credited to another Collateral Account maintained in the
name of the Securities Intermediary and in no case will any financial asset
credited to the Collateral Account be registered in the name of the Purchase
Contract Agent, the Collateral Agent, the Company or any Holder, payable to the
order of, or specially indorsed to, the Purchase Contract Agent, the Collateral
Agent, the Company or any Holder except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank; (ii) all property
delivered to the Securities Intermediary pursuant to this Pledge Agreement
(including, without limitation, any Capital Securities, the Treasury
Consideration or Treasury Securities) will be promptly credited to the
Collateral Account; (iii) the Collateral Account is an account to which
financial assets are or may be credited, and the Securities Intermediary shall,
subject to the terms of this Agreement, treat the Purchase Contract Agent as
entitled to exercise the rights of any financial asset credited to the
Collateral Account; (iv) the Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any agreement
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with any other person relating to the Collateral Account and/or any financial
assets credited thereto pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the Code) of such other
person; and (v) the Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with the
Company, the Collateral Agent or the Purchase Contract Agent purporting to limit
or condition the obligation of the Securities Intermediary to comply with
entitlement orders as set forth in this Section 2.2 hereof.
(c) The Securities Intermediary hereby agrees that each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Collateral Account shall be treated as a "financial asset"
within the meaning of Section 8-102(a)(9) of the Code.
(d) In the event of any conflict between this Agreement (or any portion
thereof) and any other agreement now existing or hereafter entered into, the
terms of this Agreement shall prevail.
(e) The Purchase Contract Agent hereby irrevocably constitutes and
appoints the Collateral Agent and the Company, with full power of substitution,
as the Purchase Contract Agent's attorney-in-fact to take on behalf of, and in
the name, place and stead of the Purchase Contract Agent and the Holders, any
action necessary or desirable to perfect and to keep perfected the security
interest in the Collateral referred to in Section 2.1. The grant of such
power-of-attorney shall not be deemed to require of the Collateral Agent any
specific duties or obligations not otherwise assumed by the Collateral Agent
hereunder. Notwithstanding the foregoing, in no event shall the Collateral Agent
or Securities Intermediary be responsible for the preparation or filing of any
financing or continuation statements in the appropriate jurisdictions or
responsible for maintenance or perfection of any Security Interest hereunder.
ARTICLE III
Distributions on Pledged Collateral
So long as the Purchase Contract Agent is the registered owner of the
Pledged Capital Securities or Pledged Treasury Consideration, it shall receive
all payments thereon. If the Pledged Capital Securities are reregistered, such
that the Collateral Agent becomes the registered holder, all payments of the
Stated Amount of or cash distributions on the Pledged Capital Securities and all
payments of the principal of, or cash distributions on, any Pledged Treasury
Consideration or Pledged Treasury Securities, that are received by
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the Collateral Agent and that are properly payable hereunder shall be paid by
the Collateral Agent by wire transfer in same day funds:
(i) In the case of (A) quarterly cash distributions on Normal Units
which include Pledged Capital Securities or Pledged Treasury Consideration
and (B) any payments with respect to any Capital Securities or Treasury
Consideration, as the case may be, that have been released from the Pledge
pursuant to Section 4.3 hereof, to the Purchase Contract Agent, for the
benefit of the relevant Holders of the Normal Units, to the account
designated by the Purchase Contract Agent for such purpose, no later than
10:00 a.m., New York City time, on the Business Day such payment is
received by the Collateral Agent (provided that in the event such payment
is received by the Collateral Agent on a day that is not a Business Day or
after 9:00 a.m., New York City time, on a Business Day, then such payment
shall be made no later than 9:30 a.m., New York City time, on the next
succeeding Business Day);
(ii) In the case of any payments with respect to any Treasury
Securities that have been released from the Pledge pursuant to Section 4.3
hereof, to the Holders of the Stripped Units to the accounts designated by
them in writing for such purpose no later than 2:00 p.m., New York City
time, on the Business Day such payment is received by the Collateral Agent
(provided that in the event such payment is received by the Collateral
Agent on a day that is not a Business Day or after 10 a.m., New York City
time, on a Business Day, then such payment shall be made no later than
10:30 a.m., New York City time, on the next succeeding Business Day); and
(iii) In the case of payments in respect of any Pledged Capital
Securities, Pledged Treasury Consideration or Pledged Treasury Securities,
to be paid upon settlement of such Holder's obligations to purchase Common
Stock under the Purchase Contract, to the Company on the Stock Purchase
Date in accordance with the procedure set forth in Section 4.5(a) or
4.5(b) hereof, in full satisfaction of the respective obligations of the
Holders under the related Purchase Contracts.
All payments received by the Purchase Contract Agent as provided herein
shall be applied by the Purchase Contract Agent pursuant to the provisions of
the Purchase Contract Agreement. If, notwithstanding the foregoing, the Purchase
Contract Agent shall receive any payments of the Stated Amount on account of any
Capital Security or principal of any Treasury Consideration, as applicable,
that, at the time of such payment, is a Pledged Capital Security or Pledged
Treasury Consideration, as the case may be, or a Holder of a Stripped Unit shall
receive any payments of principal on account of any Treasury Securities that, at
the time of such payment, are Pledged Treasury Securities, the Purchase Contract
Agent or such Holder shall hold the same as trustee of an express trust for the
benefit of the Company (and promptly deliver the same over to the Company) for
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application to the obligations of the Holders under the related Purchase
Contracts, and the Holders shall acquire no right, title or interest in any such
payments of Stated Amount or principal so received.
ARTICLE IV
Substitution, Release, Repledge and Settlement of Capital Securities
Section 4.1 Substitution for Capital Securities or Treasury
Consideration and the Creation of Stripped Units. At any time on or prior to the
second Business Day immediately preceding the Stock Purchase Date, a Holder of
Normal Units shall have the right to substitute Treasury Securities for the
Pledged Capital Securities or Pledged Treasury Consideration, as the case may
be, securing such Holder's obligations under the Purchase Contracts comprising a
part of such Normal Units, in integral multiples of 20 Normal Units, or after a
remarketing of the Capital Securities pursuant to the Purchase Contract
Agreement, in integral multiples of Normal Units such that Treasury Securities
to be deposited and the applicable Treasury Consideration to be released are in
integral multiples of $1,000, by (a) Transferring to the Collateral Agent
Treasury Securities having an aggregate principal amount equal to the aggregate
Stated Amount of such Normal Units and (b) delivering such Normal Units to the
Purchase Contract Agent, accompanied by a notice, substantially in the form of
Exhibit B hereto, to the Purchase Contract Agent stating that such Holder has
Transferred Treasury Securities to the Collateral Agent pursuant to clause (a)
above (stating the principal amount, the maturities and the CUSIP numbers of the
Treasury Securities Transferred by such Holder) and requesting that the Purchase
Contract Agent instruct the Collateral Agent to release from the Pledge the
Pledged Capital Securities or Pledged Treasury Consideration, as the case may
be, related to such Normal Units, whereupon the Purchase Contract Agent shall
promptly give such instruction to the Collateral Agent in the form provided in
Exhibit A. Upon receipt of Treasury Securities from a Holder of Normal Units and
the related instruction from the Purchase Contract Agent, the Collateral Agent
shall release the Pledged Capital Securities or Pledged Treasury Consideration,
as the case may be, and shall promptly Transfer such Pledged Capital Securities
or Pledged Treasury Consideration, as the case may be, free and clear of any
lien, pledge or security interest created hereby, to the Purchase Contract
Agent. All items Transferred and/or substituted by any Holder pursuant to this
Section 4.1, Section 4.2 or any other Section of this Agreement shall be
Transferred and/or substituted free and clear of all liens, claims and
encumbrances.
Section 4.2 Substitution for Treasury Securities and the Creation of
Normal Units. At any time on or prior to the second Business Day immediately
preceding the Stock Purchase Date, a Holder of Stripped Units shall have the
right to reestablish Normal
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Units (a) consisting of the Purchase Contracts and Capital Securities in
integral multiples of 20 Normal Units, or (b) after a remarketing of the Capital
Securities pursuant to the Purchase Contract Agreement, consisting of the
Purchase Contracts and the appropriate Treasury Consideration (identified and
calculated by reference to the Treasury Consideration then comprising Normal
Units) in integral multiples of Stripped Units such that the Treasury
Consideration to be deposited and the Treasury Securities to be released are in
integral multiples of $1,000, by (x) Transferring to the Collateral Agent
Capital Securities or the appropriate Treasury Consideration, as the case may
be, then comprising such number of Normal Units as is equal to such Stripped
Units and (y) delivering such Stripped Units to the Purchase Contract Agent,
accompanied by a notice, substantially in the form of Exhibit B hereto, to the
Purchase Contract Agent stating that such Holder has transferred Capital
Securities or Treasury Consideration to the Collateral Agent pursuant to clause
(a) above and requesting that the Purchase Contract Agent instruct the
Collateral Agent to release from the Pledge the Pledged Treasury Securities
related to such Stripped Units, whereupon the Purchase Contract Agent shall give
such instruction to the Collateral Agent in the form provided in Exhibit A. Upon
receipt of the Capital Securities or the appropriate Treasury Consideration, as
the case may be, from such Holder and the instruction from the Purchase Contract
Agent, the Collateral Agent shall release the Pledged Treasury Securities and
shall promptly Transfer such Treasury Securities, free and clear of any lien,
pledge or security interest created hereby, to the Purchase Contract Agent.
Section 4.3 Termination Event. Upon receipt by the Collateral Agent of
written notice from the Company or the Purchase Contract Agent that there has
occurred a Termination Event, the Collateral Agent shall release all Collateral
from the Pledge and shall promptly Transfer any Pledged Capital Securities or
Pledged Treasury Consideration, as the case may be, and Pledged Treasury
Securities to the Purchase Contract Agent for the benefit of the Holders of the
Normal Units and the Stripped Units, respectively, free and clear of any lien,
pledge or security interest or other interest created hereby.
If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Capital Securities, Pledged Treasury Consideration or of the Pledged Treasury
Securities, as the case may be, as provided by this Section 4.3, the Purchase
Contract Agent shall (i) use its best efforts to obtain an opinion of a
nationally recognized law firm reasonably acceptable to the Collateral Agent to
the effect that, as a result of the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from releasing or
Transferring the Collateral as provided in this Section 4.3, and shall deliver
such opinion to the Collateral Agent within ten days after the occurrence of
such Termination Event, and if (y) the Purchase Contract Agent shall be unable
to obtain such opinion within ten days after the occurrence of such
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Termination Event or (z) the Collateral Agent shall continue, after delivery of
such opinion, to refuse to effectuate the release and Transfer of all Pledged
Capital Securities, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, as provided in this Section 4.3, then the
Purchase Contract Agent shall within fifteen days after the occurrence of such
Termination Event commence an action or proceeding in the court with
jurisdiction of the Company's case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and transfer of all
Pledged Capital Securities, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, as provided by this Section 4.3 or (ii) commence
an action or proceeding like that described in subsection (i)(z) hereof within
ten days after the occurrence of such Termination Event.
Section 4.4 Early Settlement; Merger Early Settlement. Upon written
notice to the Collateral Agent by the Purchase Contract Agent that one or more
Holders of Securities have elected to effect Early Settlement or Merger Early
Settlement of their respective obligations under the Purchase Contracts forming
a part of such Securities in accordance with the terms of the Purchase Contracts
and the Purchase Contract Agreement (setting forth the number of such Purchase
Contracts as to which such Holders have elected to effect Early Settlement or
Merger Early Settlement), and that the Purchase Contract Agent has received from
such Holders, and paid to the Company as confirmed in writing by the Company,
the related Early Settlement Amounts or Merger Early Settlement Amounts, as the
case may be, pursuant to the terms of the Purchase Contracts and the Purchase
Contract Agreement and that all conditions to such Early Settlement or Merger
Early Settlement, as the case may be, have been satisfied, then the Collateral
Agent shall release from the Pledge, (a) Pledged Capital Securities or Pledged
Treasury Consideration, as the case may be, in the case of a Holder of Normal
Units or (b) Pledged Treasury Securities, in the case of a Holder of Stripped
Units, relating to such Purchase Contracts as to which such Holders have elected
to effect Early Settlement or Merger Early Settlement, and shall Transfer all
such Pledged Capital Securities, Pledged Treasury Consideration or Pledged
Treasury Securities, as the case may be, free and clear of the Pledge created
hereby, to the Purchase Contract Agent for the benefit of the Holders.
Section 4.5 Remarketing; Application of Proceeds; Settlement. (a)
Pursuant to the Purchase Contract Agreement, the Purchase Contract Agent shall
notify, by 10:00 a.m., New York City time, on the third Business Day immediately
preceding the Remarketing Date or any Subsequent Remarketing Date, as the case
may be, the Remarketing Agent and the Collateral Agent of the aggregate number
of Capital Securities comprising part of Normal Units to be remarketed. The
Collateral Agent shall, by 10:00 a.m., New York City time, on the first Business
Day immediately preceding the Remarketing Date or any Subsequent Remarketing
Date, as the case may be, without any instruction from Holders of Normal Units,
deliver (i) the Pledged Capital Securities to be
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remarketed to the Remarketing Agent for remarketing and (ii) the remaining
Pledged Capital Securities to the Purchase Contract Agent for distribution to
the Holders that have elected not to participate in the remarketing in
accordance with the Purchase Contract Agreement. The Remarketing Agent will
deliver the Agent-purchased Treasury Consideration (as defined in the Purchase
Contract Agreement) purchased from the proceeds of the remarketing to the
Purchase Contract Agent, which shall thereupon deliver such Agent-purchased
Treasury Consideration to the Collateral Agent. Upon receipt of the
Agent-purchased Treasury Consideration from the Purchase Contract Agent
following a successful remarketing, the Collateral Agent, for the benefit of the
Company, shall thereupon apply such Treasury Consideration to secure such
Holders' obligations under the Purchase Contracts. On the Stock Purchase Date,
the Collateral Agent shall apply that portion of the payments received in
respect of the Pledged Treasury Consideration equal to the aggregate Stated
Amount of the related Normal Units to satisfy in full the obligations of such
Holders of Normal Units to pay the Purchase Price under the related Purchase
Contracts. The remaining portion of such Proceeds, if any, shall be distributed
by the Collateral Agent to the Purchase Contract Agent for payment to such
Holders.
Within three Business Days following a Failed Remarketing, the Capital
Securities delivered to the Remarketing Agent and the Purchase Contract Agent
pursuant to Section 4.5(a) shall be returned to the Collateral Agent, together
with written notice from the Remarketing Agent of the Failed Remarketing. The
Collateral Agent, for the benefit of the Company, shall thereupon apply such
Capital Securities to secure the Normal Units Holders' obligations under the
Purchase Contracts. The Remarketing Agent may make one or more attempts to
remarket the Capital Securities in accordance with the procedures set forth in
the Purchase Contract Agreement and the Remarketing Agreement between the
Remarketing Date and the Stock Purchase Date, provided that the requirements of
Section 5.2(b)(ii) of the Purchase Contract Agreement have been met. If by the
Stock Purchase Date the Remarketing Agent has failed to remarket the Capital
Securities at 100.5% of the Remarketing Value (as described in the Purchase
Contract Agreement), the Remarketing Agent shall advise the Collateral Agent in
writing that it cannot remarket the related Pledged Capital Securities of such
Holders of Normal Units. The Collateral Agent, for the benefit of the Company
will, at the written direction of the Company, retain or dispose of the Pledged
Capital Securities in accordance with applicable law and satisfy in full, from
any such disposition or retention, such Holders' obligations to pay the Purchase
Price for the Common Stock; provided, that if upon a Failed Remarketing, the
Collateral Agent exercises such rights for the benefit of the Company with
respect to such Capital Securities, any accumulated and unpaid distributions on
such Capital Securities will become payable by the Company to the Purchase
Contract Agent for payment to the Holder of the Normal Units to which such
Capital Securities relates in accordance with the Purchase Contract Agreement.
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(b) In the event a Holder of Stripped Units has not made an Early
Settlement or Merger Early Settlement of the Purchase Contracts underlying its
Stripped Units, such Holder shall be deemed to have elected to pay for the
shares of Common Stock to be issued under such Purchase Contracts from the
payments received in respect of the related Pledged Treasury Securities. Without
receiving any instruction from any such Holder of Stripped Units, the Collateral
Agent shall apply such payments to the settlement of such Purchase Contracts on
the Stock Purchase Date. In the event the payments received in respect of the
related Pledged Treasury Securities are in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral Agent
shall distribute such excess, when received, to the Purchase Contract Agent for
the benefit of the Holders.
(c) Pursuant to the Remarketing Agreement, on or prior to the second
Business Day immediately preceding the Remarketing Date, but no earlier than the
Payment Date immediately preceding the Remarketing Date, holders of Separate
Capital Securities may elect to have their Separate Capital Securities
remarketed by delivering their Separate Capital Securities, together with a
notice of such election, substantially in the form of Exhibit C hereto, to the
Custodial Agent. On the third Business Day prior to the Remarketing Date, by 10
a.m. NYC time, the Custodial Agent shall notify the Remarketing Agent of the
number of such Separate Capital Securities to be remarketed. The Custodial Agent
will hold such Separate Capital Securities in an account separate from the
Collateral Account. A holder of Separate Capital Securities electing to have its
Separate Capital Securities remarketed will also have the right to withdraw such
election by written notice to the Custodial Agent, substantially in the form of
Exhibit D hereto, on or prior to the first Business Day immediately preceding
the Remarketing Date and any Subsequent Remarketing Date, upon which notice the
Custodial Agent will return such Separate Capital Securities to such holder. On
the first Business Day immediately preceding the Remarketing Date and any
Subsequent Remarketing Date, the Custodial Agent will deliver to the Remarketing
Agent for remarketing all Separate Capital Securities delivered to the Custodial
Agent pursuant to this Section 4.5(c) and not withdrawn pursuant to the terms
hereof prior to such date. The portion of the proceeds from such remarketing
equal to the amount calculated in respect of such Separate Capital Securities as
set forth in Section 5.2(b) of the Purchase Contract Agreement will
automatically be remitted by the Remarketing Agent to the Custodial Agent for
the benefit of the holders of such Separate Capital Securities. In addition,
after deducting as the remarketing fee an amount not exceeding 25 basis points
(.25%) of the total proceeds of such remarketing, the Remarketing Agent will
remit to the Custodial Agent the remaining portion of the proceeds, if any, for
the benefit of such holders. If, despite using its reasonable best efforts, the
Remarketing Agent advises the Custodial Agent in writing that there has been a
Failed Remarketing, the Remarketing Agent will promptly return such Capital
Securities to the Custodial Agent for redelivery to such holders. In the event
of a dissolution of the Trust and the distribution of the Debentures as
described in the
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Declaration, all references to "Separate Capital Securities" in this Section
4.5(c) shall be deemed to be references to Debentures which are not pledged
hereunder or required to be part of the Collateral.
ARTICLE V
Voting Rights -- Capital Securities
The Purchase Contract Agent may exercise, or refrain from exercising,
any and all voting and other consensual rights pertaining to the Pledged Capital
Securities or any part thereof for any purpose not inconsistent with the terms
of this Agreement and in accordance with the terms of the Purchase Contract
Agreement; provided, that the Purchase Contract Agent shall not exercise or, as
the case may be, shall not refrain from exercising such right if, in the
judgment of the Company, such action would impair or otherwise have a material
adverse effect on the value of all or any of the Pledged Capital Securities; and
provided, further, that the Purchase Contract Agent shall give the Company and
the Collateral Agent at least five days' prior written notice of the manner in
which it intends to exercise, or its reasons for refraining from exercising, any
such right. Upon receipt of any notices and other communications in respect of
any Pledged Capital Securities, including notice of any meeting at which holders
of Capital Securities are entitled to vote or solicitation of consents, waivers
or proxies of holders of Capital Securities, the Collateral Agent shall use
reasonable efforts to send promptly to the Purchase Contract Agent such notice
or communication, and as soon as reasonably practicable after receipt of a
written request therefor from the Purchase Contract Agent, execute and deliver
to the Purchase Contract Agent such proxies and other instruments in respect of
such Pledged Capital Securities (in form and substance satisfactory to the
Collateral Agent) as are prepared by the Purchase Contract Agent with respect to
the Pledged Capital Securities.
ARTICLE VI
Rights and Remedies; Distribution of the Debentures
Section 6.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies available at law or in equity, after an
event of default hereunder, the Collateral Agent shall have all of the rights
and remedies with respect to the Collateral of a secured party under the Uniform
Commercial Code (or any successor thereto) as in effect in the State of New York
from time to time (the "Code") (whether or not the Code is in effect in the
jurisdiction where the rights and remedies are asserted) and the TRADES
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Regulations and such additional rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted. Wherever reference is made in this Agreement
to any section of the Code, such reference shall be deemed to include a
reference to any provision of the Code which is a successor to, or amendment of,
such section. Without limiting the generality of the foregoing, such remedies
may include, to the extent permitted by applicable law, (i) retention of the
Pledged Capital Securities or other Collateral in full satisfaction of the
Holders' obligations under the Purchase Contracts or (ii) sale of the Pledged
Capital Securities or other Collateral in one or more public or private sales at
the written direction of the Company.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of any Pledged Treasury Consideration
or Pledged Treasury Securities as provided in Article III hereof in satisfaction
of the obligations of the Holder of the Securities of which such Pledged
Treasury Consideration or Pledged Treasury Securities, as applicable, is a part
under the related Purchase Contracts, the inability to make such payments shall
constitute an event of default hereunder and the Collateral Agent shall have and
may exercise, with reference to such Pledged Treasury Securities or such Pledged
Treasury Consideration, as applicable, and such obligations of such Holder, any
and all of the rights and remedies available to a secured party under the Code
and the TRADES Regulations after default by a debtor, and as otherwise granted
herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) the Stated Amount of or,
cash distributions on, the Pledged Capital Securities, or (ii) the principal
amount of the Pledged Treasury Consideration or Pledged Treasury Securities,
subject, in each case, to the provisions of Article III, and as otherwise
granted herein.
(d) The Purchase Contract Agent, individually and as attorney-in-fact
for each Holder of Securities, agrees that, from time to time, upon the written
request of the Company or the Collateral Agent (acting upon the written request
of the Company), the Purchase Contract Agent or such Holder shall execute and
deliver such further documents and do such other acts and things as the Company
or the Collateral Agent (acting upon the written request of the Company) may
reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder.
The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Company or the Collateral
Agent (acting upon the written request of the Company) hereunder, except for
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liability for its own negligent act, its own negligent failure to act, its bad
faith or its own willful misconduct.
Section 6.2 Distribution of the Debentures. Upon the occurrence of a
voluntary or involuntary dissolution of the Trust, a principal amount of the
Debentures constituting the assets of the Trust and underlying the Capital
Securities equal to the aggregate Stated Amount of the Pledged Capital
Securities shall be delivered to the Collateral Agent in exchange for the
Pledged Capital Securities. In the event the Collateral Agent receives such
Debentures in respect of Pledged Capital Securities upon the occurrence of a
voluntary or involuntary dissolution of the Trust, the Collateral Agent shall
Transfer such Debentures to the Collateral Account in the manner specified
herein (including, without limitation, physical delivery thereof as set forth in
Section 2.1) for Pledged Capital Securities to secure the obligations of the
Holders of Normal Units to purchase the Company's Common Stock under the related
Purchase Contracts. Thereafter, the Collateral Agent shall have such security
interests, rights and obligations with respect to such Debentures as it had in
respect of the Pledged Capital Securities as provided in Articles II, III, IV, V
and VI hereof, and any reference herein to the Capital Securities or Pledged
Capital Securities shall be deemed to be referring to such Debentures.
Section 6.3 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Capital Securities or Treasury Consideration, as
the case may be, for Collateral held by the Collateral Agent, such substitution
shall not constitute a novation of the security interest created hereby.
ARTICLE VII
Representations and Warranties; Covenants
Section 7.1 Representations and Warranties. The Holders from time to
time, acting through the Purchase Contract Agent as their attorney-in-fact (it
being understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represent
and warrant to the Collateral Agent, which representations and warranties shall
be deemed repeated on each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security interest in and lien
on the Collateral;
(b) such Holder is the sole beneficial owner of the Collateral and, in
the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the
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sole beneficial owner of, or has the right to Transfer, the Collateral it
Transfers to the Collateral Agent, free and clear of any security
interest, lien, encumbrance, call, liability to pay money or other
restriction other than the security interest and lien granted under
Section 2.1 hereof;
(c) upon the Transfer of the Collateral to the Collateral Account, the
Collateral Agent, for the benefit of the Company, will have a valid and
perfected first priority security interest therein (assuming that any
central clearing operation or any Intermediary or other entity not within
the control of the Holder involved in the Transfer of the Collateral,
including the Collateral Agent, gives the notices and takes the action
required of it hereunder and under applicable law for perfection of that
interest and assuming the establishment and exercise of control pursuant
to Section 2.2 hereof); and
(d) the execution and performance by the Holder of its obligations
under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the
security interest and lien granted under Section 2.1 hereof or violate any
provision of any existing law or regulation applicable to it or of any
mortgage, charge, pledge, indenture, contract or undertaking to which it
is a party or which is binding on it or any of its assets.
Section 7.2 Covenants. The Holders from time to time, acting through
the Purchase Contract Agent as their attorney-in-fact (it being understood that
the Purchase Contract Agent shall not be liable for any covenant made by or on
behalf of a Holder), hereby covenant to the Collateral Agent that for so long as
the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor such Holders will create or
purport to create or allow to subsist any mortgage, charge, lien, pledge
or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders will sell or
otherwise dispose (or attempt to dispose) of the Collateral or any part of
it except for the beneficial interest therein, subject to the pledge
hereunder, transferred in connection with the Transfer of the Securities.
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ARTICLE VIII
The Collateral Agent, Custodial Agent and Securities Intermediary
Section 8.1 Appointment, Powers and Immunities. The Collateral Agent
shall act as Agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. Each of
the Collateral Agent, the Custodial Agent and the Securities Intermediary: (a)
shall have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants or obligations shall be inferred from
this Agreement against any of them, nor shall any of them be bound by the
provisions of any agreement by any party hereto beyond the specific terms
hereof; (b) shall not be responsible for any recitals contained in this
Agreement, or in any certificate or other document referred to or provided for
in, or received by it under, this Agreement, the Securities or the Purchase
Contract Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any failure
by the Company or any other Person (except the Collateral Agent, the Custodial
Agent or the Securities Intermediary, as the case may be) to perform any of its
obligations hereunder or thereunder or for the perfection, priority or, except
as expressly required hereby, existence, validity, perfection or maintenance of
any security interest created hereunder; (c) shall not be required to initiate
or conduct any litigation or collection proceedings hereunder (except in the
case of the Collateral Agent, pursuant to directions furnished under Section 8.2
hereof, subject to Section 8.6 hereof); (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other document
or instrument referred to or provided for herein or in connection herewith or
therewith, except for its own gross negligence, bad faith or willful misconduct;
and (e) shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, the Securities or
other property deposited hereunder. Subject to the foregoing, during the term of
this Agreement, the Collateral Agent shall take all reasonable action in
connection with the safekeeping and preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent, the
Custodial Agent or the Securities Intermediary to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder. In no event shall the Collateral Agent, the Custodial Agent or
the Securities Intermediary be liable for any amount in excess of the value of
the Collateral or for any special, indirect, individual, consequential damages
or lost profits or loss of business, arising in connection with this Agreement.
Notwithstanding the foregoing, the Collateral Agent, the Custodial Agent,
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the Purchase Contract Agent and Securities Intermediary, each in its individual
capacity, hereby waive any right of setoff, bankers lien, liens or perfection
rights as securities intermediary or any counterclaim with respect to any of the
Collateral.
The Collateral Agent, Custodial Agent and Securities Intermediary shall
have no liability whatsoever for the action or inaction of the Book-Entry System
or any Clearing Corporation. In no event shall the Book-Entry System or any
Clearing Corporation be deemed an agent or subcustodian of the Collateral Agent,
Custodial Agent and Securities Intermediary. The Collateral Agent, Custodial
Agent and Securities Intermediary shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, including, without limitation, acts of God; earthquakes;
fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications service; accidents; labor disputes; acts of civil or
military authority; governmental actions; inability or obtain labor, material,
equipment or transportation.
Section 8.2 Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, to direct the time, method and place of conducting any proceeding
for the realization of any right or remedy available to the Collateral Agent, or
of exercising any power conferred on the Collateral Agent, the Custodial Agent
or the Securities Intermediary, as the case may be, or to direct the taking or
refraining from taking of any action authorized by this Agreement; provided,
however, that (i) such direction shall not conflict with the provisions of any
law or of this Agreement and (ii) the Collateral Agent, the Custodial Agent and
the Securities Intermediary shall receive indemnity satisfactory to it as
provided herein. Nothing in this Section 8.2 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsistent with such direction.
Section 8.3 Reliance by Collateral Agent. Each of the Securities
Intermediary, the Custodial Agent and the Collateral Agent shall be entitled
conclusively to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone or
facsimile) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons (without being
required to determine the correctness of any fact stated therein), and upon
advice and statements of legal counsel and other experts selected by the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be. As to any matters not expressly provided for by this Agreement, the
Collateral Agent, the Custodial Agent and the Securities Intermediary shall in
all cases be fully protected in
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acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company in accordance with this Agreement.
Section 8.4 Rights in Other Capacities. The Collateral Agent, the
Custodial Agent and the Securities Intermediary and their affiliates may
(without having to account therefor to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind of banking,
trust or other business with the Purchase Contract Agent, any Holder of
Securities and any holder of Separate Capital Securities (and any of their
respective subsidiaries or affiliates) as if it were not acting as the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, and the Collateral Agent, the Custodial Agent and the Securities
Intermediary and their affiliates may accept fees and other consideration from
the Purchase Contract Agent, any Holder of Securities or any holder of Separate
Capital Securities without having to account for the same to the Company;
provided that each of the Securities Intermediary, the Custodial Agent and the
Collateral Agent covenants and agrees with the Company that it shall not accept,
receive or permit there to be created in favor of itself (and waives any right
of set-off or banker's lien with respect to) and shall take no affirmative
action to permit there to be created in favor of any other Person, any security
interest, lien or other encumbrance of any kind in or upon the Collateral and
the Collateral shall not be commingled with any other assets of any such Person.
Section 8.5 Non-Reliance on Collateral Agent. None of the Securities
Intermediary, the Custodial Agent or the Collateral Agent shall be required to
keep itself informed as to the performance or observance by the Purchase
Contract Agent or any Holder of Securities of this Agreement, the Purchase
Contract Agreement, the Securities or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Purchase
Contract Agent or any Holder of Securities. The Collateral Agent, the Custodial
Agent and the Securities Intermediary shall not have any duty or responsibility
to provide the Company or the Remarketing Agent with any credit or other
information concerning the affairs, financial condition or business of the
Purchase Contract Agent, any Holder of Securities or any holder of Separate
Capital Securities (or any of their respective subsidiaries or affiliates) that
may come into the possession of the Collateral Agent, the Custodial Agent or the
Securities Intermediary or any of their respective affiliates.
Section 8.6 Compensation and Indemnity. The Company agrees: (i) to pay
each of the Collateral Agent, the Custodial Agent and the Securities
Intermediary from time to time such compensation as shall be agreed in writing
between the Company and the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, for all services rendered by each
of them hereunder and (ii) to indemnify the Collateral Agent, the Custodial
Agent and the Securities Intermediary for, and to hold each of them
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harmless from and against, any loss, liability or reasonable out-of-pocket
expense incurred without gross negligence, willful misconduct or bad faith on
its part, arising out of or in connection with the acceptance or administration
of its powers and duties under this Agreement, including the reasonable
out-of-pocket costs and expenses (including reasonable fees and expenses of
counsel) of defending itself against any claim or liability in connection with
the exercise or performance of such powers and duties or collecting such
amounts. The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall each promptly notify the Company of any third party claim
which may give rise to the indemnity hereunder and give the Company the
opportunity to participate in the defense of such claim with counsel reasonably
satisfactory to the indemnified party, and no such claim shall be settled
without the written consent of the Company, which consent shall not be
unreasonably withheld.
Section 8.7 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties hereto or any other Person with respect to any funds or
property deposited hereunder, the Collateral Agent, the Custodial Agent and the
Securities Intermediary shall be entitled, after prompt notice to the Company
and the Purchase Contract Agent, at its sole option, to refuse to comply with
any and all claims, demands or instructions with respect to such property or
funds so long as such dispute or conflict shall continue, and neither the
Collateral Agent, the Custodial Agent nor the Securities Intermediary shall be
or become liable in any way to any of the parties hereto for its failure or
refusal to comply with such conflicting claims, demands or instructions. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent, the Custodial Agent or the
Securities Intermediary, as the case may be, or (ii) the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be, shall have
received security or an indemnity satisfactory to the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be, sufficient
to save the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be, harmless from and against any and all loss,
liability or reasonable out-of-pocket expense which the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be, may incur by
reason of its acting without bad faith, willful misconduct or gross negligence.
The Collateral Agent, the Custodial Agent or the Securities Intermediary may in
addition elect to commence an interpleader action or seek other judicial relief
or orders as the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be, may deem necessary. Notwithstanding anything
contained herein to the contrary, neither the Collateral Agent, the Custodial
Agent nor the Securities Intermediary shall be required to take any action
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that is in its opinion contrary to law or to the terms of this Agreement, or
which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 8.8 Resignation of Collateral Agent, Custodial Agent or
Securities Intermediary. Subject to the appointment and acceptance of a
successor Collateral Agent, Custodial Agent or Securities Intermediary as
provided below, (a) the Collateral Agent, the Custodial Agent and the Securities
Intermediary may resign at any time by giving notice thereof to the Company and
the Purchase Contract Agent as attorney-in-fact for the Holders of Securities,
(b) the Collateral Agent, the Custodial Agent and the Securities Intermediary
may be removed at any time by the Company and (c) if the Collateral Agent, the
Custodial Agent or the Securities Intermediary fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than 20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent, the
Custodial Agent or the Securities Intermediary may be removed by the Purchase
Contract Agent. The Purchase Contract Agent shall promptly notify the Company of
any removal of the Collateral Agent, the Custodial Agent or the Securities
Intermediary pursuant to clause (c) of the immediately preceding sentence. Upon
any such resignation or removal, the Company shall have the right to appoint a
successor Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be. If no successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Collateral Agent's,
Custodial Agent's or Securities Intermediary's giving of notice of resignation
or such removal, then the retiring Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, may at the Company's expense
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent, Custodial Agent or Securities Intermediary, as the case may
be. Each of the Collateral Agent, the Custodial Agent and the Securities
Intermediary shall be a bank which has an office in New York, New York with a
combined capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Collateral Agent, Custodial Agent or Securities Intermediary, as
the case may be, hereunder by a successor Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as
the case may be, and the retiring Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, shall take all appropriate action
to transfer any money and property held by it hereunder (including the
Collateral) to such successor. The retiring Collateral Agent, Custodial Agent or
Securities Intermediary shall, upon such succession, be discharged from its
duties and obligations as Collateral Agent, Custodial Agent or Securities
Intermediary hereunder. After any retiring Collateral Agent's, Custodial Agent's
or Securities Intermediary's resignation hereunder as Collateral Agent,
Custodial Agent or Securities Intermediary, the provisions of this Section 8.8
shall
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continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Collateral Agent, Custodial Agent or
Securities Intermediary. Any resignation or removal of the Collateral Agent
hereunder shall be deemed for all purposes of this Agreement as the simultaneous
resignation or removal of the Custodial Agent and the Securities Intermediary.
Section 8.9 Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by, or in reliance upon the advice of, such agents or advisors
selected in good faith. The appointment of agents (other than legal counsel)
pursuant to this Section 8.9 shall be subject to prior consent of the Company,
which consent shall not be unreasonably withheld.
Section 8.10 Survival. The provisions of this Article VIII shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent, the Custodial Agent or the Securities Intermediary.
Section 8.11 Exculpation. Anything in this Agreement to the contrary
notwithstanding, in no event shall any of the Collateral Agent, the Custodial
Agent or the Securities Intermediary or their officers, employees or agents be
liable under this Agreement to any third party for indirect, special, punitive
or consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Collateral
Agent, the Custodial Agent or the Securities Intermediary, or any of them,
incurred without any act or deed that is found to be attributable to gross
negligence, bad faith or willful misconduct on the part of the Collateral Agent,
the Custodial Agent or the Securities Intermediary.
ARTICLE IX
Amendment
Section 9.1 Amendment Without Consent of Holders. Without the consent
of any Holders or the holders of any Separate Capital Securities, the Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary and the
Purchase Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company; or
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(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company so long as such covenants or such surrender do not adversely
affect the validity, perfection or priority of the security interests
granted or created hereunder; or
(3) to evidence and provide for the acceptance of appointment hereunder
by a successor Collateral Agent, Custodial Agent, Securities Intermediary
or Purchase Contract Agent; or
(4) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other such provisions herein, or
to make any other provisions with respect to such matters or questions
arising under this Agreement, provided such action shall not adversely
affect the interests of the Holders.
Section 9.2 Amendment with Consent of Holders. With the consent of the
Holders of not less than a majority of the Purchase Contracts at the time
outstanding, by Act of said Holders delivered to the Company, the Purchase
Contract Agent or the Collateral Agent, as the case may be, the Company, when
duly authorized, the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent and the Securities Intermediary may amend this Agreement for the
purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such Supplemental agreement shall, without the consent of the Holder of each
Outstanding Security adversely affected thereby,
(1) change the amount or type of Collateral underlying a Security
(except for the rights of holders of Normal Units to substitute the
Treasury Securities for the Pledged Capital Securities or the Pledged
Treasury Consideration, as the case may be, or the rights of Holders of
Stripped Units to substitute Capital Securities or the appropriate
Treasury Consideration, as applicable, for the Pledged Treasury
Securities), impair the right of the Holder of any Security to receive
distributions on the underlying Collateral or otherwise adversely affect
the Holder's rights in or to such Collateral; or
(2) otherwise effect any action that would require the consent of the
Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
Supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent of whose
Holders is required for any such amendment.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Purchase Contract Agent shall receive and
(subject to Section 6.1 hereof, with respect to the Collateral Agent, and
Section 7.1 of the Purchase Contract Agreement, with respect to the Purchase
Contract Agent) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent, if any, to the execution and
delivery of such amendment have been satisfied and, in the case of an amendment
pursuant to Section 9.1, that such amendment does not adversely affect the
validity, perfection or priority of the security interests granted or created
hereunder.
Section 9.4 Effect of Amendments. Upon the execution of any amendment
under this Article IX, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered under the Purchase Contract Agreement
shall be bound thereby.
Section 9.5 Reference to Amendments. Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Certificates so
modified as to conform, in the opinion of the Collateral Agent, the Custodial
Agent, the Securities Intermediary, the Purchase Contract Agent and the Company,
to any such amendment may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Purchase
Contract Agent in accordance with the Purchase Contract Agreement in exchange
for outstanding Certificates.
ARTICLE X
Miscellaneous
Section 10.1 No Waiver. No failure on the part of any party hereto or
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any
27
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single or partial exercise by any party hereto or any of its agents of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
Section 10.2 GOVERNING LAW. THIS AGREEMENT 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. Without limiting the foregoing, the
above choice of law is expressly agreed to by the Securities Intermediary, the
Collateral Agent, the Custodial Agent and the Holders from time to time acting
through the Purchase Contract Agent, as their attorney-in-fact, in connection
with the establishment and maintenance of the Collateral Account. The Company,
the Collateral Agent, the Custodial Agent, the Securities Intermediary and the
Holders from time to time of the Securities, acting through the Purchase
Contract Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company, the Collateral Agent, the
Custodial Agent and the Securities Intermediary and the Holders from time to
time of the Securities, acting through the Purchase Contract Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 10.3 Notices. Unless otherwise stated herein, all notices,
requests, consents and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made in writing (including, without limitation, by
telecopy) delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof or, as to any party, at
such other address as shall be designated by such party in a notice to the other
parties. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when personally delivered or, in the
case of a mailed notice or notice transmitted by telecopier, upon receipt, in
each case given or addressed as aforesaid.
Section 10.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary
and the Purchase Contract Agent, and the Holders from time to time of the
Securities, by their acceptance of the same, shall
28
33
be deemed to have agreed to be bound by the provisions hereof and to have
ratified the agreements of, and the grant of the Pledge hereunder by, the
Purchase Contract Agent.
Section 10.5 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 10.6 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 10.7 Expenses, Etc. The Company agrees to reimburse the
Collateral Agent, the Securities Intermediary and the Custodial Agent for: (a)
all reasonable out-of-pocket costs and expenses of the Collateral Agent, the
Securities Intermediary and the Custodial Agent (including, without limitation,
the reasonable fees and expenses of counsel to the Collateral Agent, the
Securities Intermediary and the Custodial Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable costs and expenses of the Collateral Agent
(including, without limitation, reasonable fees and expenses of counsel) in
connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 10.7; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred to
herein and all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated hereby.
Section 10.8 Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of the
Purchase Contracts or the Securities or any other agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or any other
term of, or any increase in the amount of, all or any of the obligations
of Holders of Securities under the related Purchase Contracts, or any
other amendment or waiver of any term of, or any consent to any departure
from any requirement of, the Purchase Contract Agreement or any Purchase
Contract or any other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a defense
available to, or discharge of, a borrower, a guarantor or a pledgor.
Section 10.9 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
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OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name:
Title:
Address for Notices:
MetLife, Inc.
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer's Office
Telecopy: (000) 000-0000
BANK ONE TRUST COMPANY, N.A.,
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By: /s/ Xxxxxx Xxx Xxxxxxx
----------------------------------
Name: XXXXXX XXX XXXXXXX
Title: VICE PRESIDENT AND
ASSISTANT SECRETARY
Address for Notices:
Bank One Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services Division
Telecopy: (000) 000-0000
30
00
XXX XXXX XX XXX XXXX, as Collateral
Agent, Custodial Agent and as Securities
Intermediary
By: /s/Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
Address for Notices:
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration,
Dealing and Trading Group,
Xxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
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EXHIBIT A
INSTRUCTION FROM PURCHASE CONTRACT
AGENT TO COLLATERAL AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration,
Dealing and Trading Group
Re: Equity Security Units of MetLife, Inc. (the
"Company"), and MetLife Capital Trust I
We hereby notify you in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated as of April 7, 2000, (the "Pledge Agreement") among the
Company, yourselves, as Collateral Agent, Custodial Agent and Securities
Intermediary and ourselves, as Purchase Contract Agent and as attorney-in-fact
for the holders of [Normal Units] [Stripped Units] from time to time, that the
holder of Securities listed below (the "Holder") has elected to substitute
[$_____ aggregate principal amount of Treasury Securities (CUSIP No. _____)]
[$_______stated liquidation amount of Capital Securities or $_____ principal
amount of Treasury Consideration (CUSIP No. _____)] in exchange for the related
[Pledged Capital Securities or Pledged Treasury Consideration] [Pledged Treasury
Securities] held by you in accordance with the Pledge Agreement and has
delivered to us a notice stating that the Holder has Transferred [Treasury
Securities] [Capital Securities or the Treasury Consideration] to you, as
Collateral Agent. We hereby instruct you, upon receipt of such [Pledged Treasury
Securities] [Pledged Capital Securities or Pledged Treasury Consideration], to
release the [Capital Securities or the Treasury Consideration] [Treasury
Securities] related to such [Normal Units] [Stripped Units] to us in accordance
with the Holder's instructions. Capitalized terms used herein but not defined
shall have the meaning set forth in the Pledge Agreement.
Date:
------------------------
By: Bank One Trust Company, N.A.
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A-1
37
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Capital Securities or Treasury Consideration] for the
[Pledged Capital Securities or the Pledged Treasury Consideration] [Pledged
Treasury Securities]:
------------------------------------ --------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
------------------------------------
Address
------------------------------------
------------------------------------
A-2
38
EXHIBIT B
INSTRUCTION TO PURCHASE CONTRACT AGENT
Bank One Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services Division
Re: Equity Security Units of MetLife, Inc. (the
"Company"), and MetLife Capital Trust I
The undersigned Holder hereby notifies you that it has delivered to The
Bank of New York, as Collateral Agent, [$_______ aggregate principal amount of
Treasury Securities (CUSIP No. _____)] [$_______ aggregate stated liquidation
amount of Capital Securities or $_____ principal amount of Treasury
Consideration (CUSIP No. _____)] in exchange for the related [Pledged Capital
Securities or Pledged Treasury Consideration] [Pledged Treasury Securities] held
by the Collateral Agent, in accordance with Section 4.1 of the Pledge Agreement,
dated as of April 7, 2000 (the "Pledge Agreement"), between you, the Company and
the Collateral Agent. The undersigned Holder hereby instructs you to instruct
the Collateral Agent to release to you on behalf of the undersigned Holder the
[Pledged Capital Securities or the Pledged Treasury Consideration] [Pledged
Treasury Securities] related to such [Normal Units] [Stripped Units].
Capitalized terms used herein but not defined shall have the meaning set forth
in the Pledge Agreement.
Date:
-----------------------
Signature Guarantee:
-------------------------
Please print name and address of Registered Holder:
------------------------------------ --------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
------------------------------------
Address
------------------------------------
------------------------------------
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EXHIBIT C
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration,
Dealing and Trading Group
Re: Capital Securities of MetLife, Inc. (the "Company") and
MetLife Capital Trust I
The undersigned hereby notifies you in accordance with Section 4.5(c)
of the Pledge Agreement, dated as of April 7, 2000 (the "Pledge Agreement"),
among the Company, yourselves, as Collateral Agent, Securities Intermediary and
Custodial Agent, and Bank One Trust Company, N.A., as Purchase Contract Agent
and as attorney-in-fact for the Holders of Normal Units and Stripped Units from
time to time, that the undersigned elects to deliver $__________ stated
liquidation amount of Capital Securities for delivery to the Remarketing Agent
on the fourth Business Day immediately preceding the Remarketing Date or any
Subsequent Remarketing Date for remarketing pursuant to Section 4.5(c) of the
Pledge Agreement. The undersigned will, upon request of the Remarketing Agent,
execute and deliver any additional documents deemed by the Remarketing Agent or
by the Company to be necessary or desirable to complete the sale, assignment and
transfer of the Capital Securities tendered hereby.
The undersigned hereby instructs you, upon receipt of the proceeds of
such remarketing from the Remarketing Agent, net of amounts payable to the
Remarketing Agent in accordance with the Pledge Agreement, to deliver such
proceeds to the undersigned in accordance with the instructions indicated herein
under "A. Payment Instructions." The undersigned hereby instructs you, in the
event of Failed Remarketing, upon receipt of the Capital Securities tendered
herewith from the Remarketing Agent, to be delivered to the person(s) and the
address(es) indicated herein under "B. Delivery Instructions."
With this notice, the undersigned hereby (i) represents and warrants
that the undersigned has full power and authority to tender, sell, assign and
transfer the Capital Securities tendered hereby and that the undersigned is the
record owner of any Capital Securities tendered herewith in physical form or a
participant in The Depositary Trust Company ("DTC") and the beneficial owner of
any Capital Securities tendered herewith by
C-1
40
book-entry transfer to your account at DTC and (ii) agrees to be bound by the
terms and conditions of Section 4.5(c) of the Pledge Agreement. Capitalized
terms used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
Date:
-------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Signature Guarantee:
-----------------
------------------------------------ --------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
------------------------------------
Address
------------------------------------
------------------------------------
A. PAYMENT INSTRUCTIONS
Proceeds of the remarketing should be paid by check in the name of the person(s)
set forth below and mailed to the address set forth below.
Name(s)
---------------------------------------
(Please Print)
Address
---------------------------------------
(Please Print)
----------------------------------------------
----------------------------------------------
(Zip Code)
----------------------------------------------
(Tax Identification or Social Security Number)
C-2
41
B. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Capital Securities which are in physical
form should be delivered to the person(s) set forth below and mailed to the
address set forth below.
Name(s)
---------------------------------------
(Please Print)
Address
---------------------------------------
(Please Print)
----------------------------------------------
----------------------------------------------
(Zip Code)
----------------------------------------------
(Tax Identification or Social Security Number)
In the event of a Failed Remarketing, Capital Securities which are in book-entry
form should be credited to the account at The Depository Trust Company set forth
below.
--------------------------------
DTC Account Number
Name of Account Party:
--------------------------------
C-3
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EXHIBIT D
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration,
Dealing and Trading Group
Re: Capital Securities of MetLife, Inc. (the "Company") and
MetLife Capital Trust I
The undersigned hereby notifies you in accordance with Section 4.5(c)
of the Pledge Agreement, dated as of April 7, 2000 (the "Pledge Agreement"),
among the Company, yourselves, as Collateral Agent, Securities Intermediary and
Custodial Agent and Bank One Trust Company, N.A., as Purchase Contract Agent and
as attorney-in-fact for the Holders of Normal Units and Stripped Units from time
to time, that the undersigned elects to withdraw the $_____ aggregate stated
liquidation amount of Capital Securities delivered to the Custodial Agent on
___________, 2003 for remarketing pursuant to Section 4.5(c) of the Pledge
Agreement. The undersigned hereby instructs you to return such Capital
Securities to the undersigned in accordance with the undersigned's instructions.
With this notice, the Undersigned hereby agrees to be bound by the terms and
conditions of Section 4.5(c) of the Pledge Agreement. Capitalized terms used
herein but not defined shall have the meaning set forth in the Pledge Agreement.
Date:
------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Signature Guarantee:
------------------
-------------------------------- --------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
--------------------------------
Address
--------------------------------
--------------------------------
D-1
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A. DELIVERY INSTRUCTIONS
In the event of a Failed Remarketing, Capital Securities which are in physical
form should be delivered to the person(s) set forth below and mailed to the
address set forth below.
Name(s)
--------------------------------------
(Please Print)
Address
--------------------------------------
(Please Print)
---------------------------------------------
---------------------------------------------
(Zip Code)
---------------------------------------------
(Tax Identification or Social Security Number)
In the event of a Failed Remarketing, Capital Securities which are in book-entry
form should be credited to the account at The Depository Trust Company set forth
below.
--------------------------------
DTC Account Number
Name of Account Party:
--------------------------------
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