-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E+v2PGXW62OxJAAGyVIMPhe2o5mzebHyWnVFLc+OxoIeMOzr2W/l7Hl6G4RCSz+D KeOcWUlOK4BJshB5e1cGdw== 0000950123-05-007546.txt : 20050620 0000950123-05-007546.hdr.sgml : 20050617 20050620172641 ACCESSION NUMBER: 0000950123-05-007546 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20050620 DATE AS OF CHANGE: 20050620 FILER: COMPANY DATA: COMPANY CONFORMED NAME: METLIFE INC CENTRAL INDEX KEY: 0001099219 STANDARD INDUSTRIAL CLASSIFICATION: INSURANCE AGENTS BROKERS & SERVICES [6411] IRS NUMBER: 134075851 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-15787 FILM NUMBER: 05906601 BUSINESS ADDRESS: STREET 1: 200 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10166 BUSINESS PHONE: 2125782211 MAIL ADDRESS: STREET 1: 200 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10166 8-A12B 1 y10123e8va12b.txt FORM 8-A AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 20, 2005 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934 METLIFE, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 13-4075851 (STATE OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.) 200 PARK AVENUE NEW YORK, NEW YORK 10166-0188 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) If this Form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. [X] If this Form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. [ ] Securities Act registration statement file number to which this form relates: 333-124358 -------------- SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED 6.375% COMMON EQUITY UNITS NEW YORK STOCK EXCHANGE Securities to be registered pursuant to Section 12(g) of the Act: None ================================================================================ ITEM 1. DESCRIPTION OF REGISTRANTS' SECURITIES TO BE REGISTERED. The class of securities to be registered is 6.375% Common Equity Units of MetLife, Inc. For a description of the securities to be registered hereunder, reference is made to the Prospectus dated April 27, 2005 (Registration No. 333-124358), as supplemented by the related Prospectus Supplement, dated June 15, 2005, both of which are incorporated herein by reference and made part of this Registration Statement. ITEM 2. EXHIBITS. 3.1 Amended and Restated Certificate of Incorporation of MetLife, Inc., incorporated by reference to Exhibit 3.1 to MetLife, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 2000. 3.2 Amended and Restated By-Laws, effective July 27, 2004, of MetLife, Inc. incorporated by reference to Exhibit 3.2 to MetLife, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004. 4.1 Form of Stock Purchase Contract Agreement. 4.2 Form of Normal Common Equity Unit Certificate (included in Exhibit 4.1). 4.3 Form of Stripped Common Equity Unit Certificate (included in Exhibit 4.1). 4.4 Form of Pledge Agreement. 4.5 Form of Indenture between MetLife, Inc. and J.P. Morgan Trust Company, National Association (as successor to Bank One Trust Company, N.A.) relating to Subordinated Debt Securities (the "Subordinated Indenture"), incorporated by reference to Exhibit 4.2 to MetLife, Inc.'s, MetLife Capital Trust II's and MetLife Capital Trust III's Registration Statement on Form S-3 (Nos. 333-61282, 333-61282-01 and 333-61282-02) (the "2001 S-3 Registration Statement"). 4.6 Form of First Supplemental Indenture to the Subordinated Indenture. 4.7 Form of Series A Debenture (included in Exhibit 4.6). 4.8 Form of Second Supplemental Indenture to the Subordinated Indenture. 4.9 Form of Series B Debenture (included in Exhibit 4.8). 4.10 Certificate of Trust of MetLife Capital Trust II, incorporated by reference to Exhibit 4.6 to the 2001 S-3 Registration Statement. 4.11 Certificate of Amendment to Certificate of Trust of MetLife Capital Trust II, incorporated by reference to Exhibit 4.5 to MetLife, Inc.'s, MetLife Capital Trust II's and MetLife Capital Trust III's Registration Statement on Form S-3, Registration Nos. 333-112073, 333-112073-02 and 333-112073-01 (the "2004 S-3 Registration Statement"). 4.12 Certificate of Trust of MetLife Capital Trust III, incorporated by reference to Exhibit 4.7 to the 2001 S-3 Registration Statement. 4.13 Certificate of Amendment to Certificate of Trust of MetLife Capital Trust III, incorporated by reference to Exhibit 4.6 to the 2004 S-3 Registration Statement. 4.14 Declaration of Trust of MetLife Capital Trust II, incorporated by reference to Exhibit 4.5 to the 2001 S-3 Registration Statement. 4.15 Declaration of Trust of MetLife Capital Trust III, incorporated by reference to Exhibit 4.5 to the 2001 S-3 Registration Statement. 2 4.16 Form of Amended and Restated Declaration of Trust of MetLife Capital Trust II. 4.17 Form of Amended and Restated Declaration of Trust of MetLife Capital Trust III. 4.18 Form of Guarantee Agreement relating to MetLife Capital Trust II. 4.19 Form of Guarantee Agreement relating to MetLife Capital Trust III. 3 SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized. METLIFE, INC. Date: June 20, 2005 By: /s/ Gwenn L. Carr ------------------------------------ Name: Gwenn L. Carr Title: Senior Vice President and Secretary 4 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 3.1 Amended and Restated Certificate of Incorporation of MetLife, Inc., incorporated by reference to Exhibit 3.1 to MetLife, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 2000. 3.2 Amended and Restated By-Laws, effective July 27, 2004, of MetLife, Inc. incorporated by reference to Exhibit 3.2 to MetLife, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004. 4.1 Form of Stock Purchase Contract Agreement. 4.2 Form of Normal Common Equity Unit Certificate (included in Exhibit 4.1). 4.3 Form of Stripped Common Equity Unit Certificate (included in Exhibit 4.1). 4.4 Form of Pledge Agreement. 4.5 Form of Indenture between MetLife, Inc. and J.P. Morgan Trust Company, National Association (as successor to Bank One Trust Company, N.A.) relating to Subordinated Debt Securities (the "Subordinated Indenture"), incorporated by reference to Exhibit 4.2 to MetLife, Inc.'s, MetLife Capital Trust II's and MetLife Capital Trust III's Registration Statement on Form S-3 (Nos. 333-61282, 333-61282-01 and 333-61282-02) (the "2001 S-3 Registration Statement"). 4.6 Form of First Supplemental Indenture to the Subordinated Indenture. 4.7 Form of Series A Debenture (included in Exhibit 4.6). 4.8 Form of Second Supplemental Indenture to the Subordinated Indenture. 4.9 Form of Series B Debenture (included in Exhibit 4.8). 4.10 Certificate of Trust of MetLife Capital Trust II, incorporated by reference to Exhibit 4.6 to the 2001 S-3 Registration Statement. 4.11 Certificate of Amendment to Certificate of Trust of MetLife Capital Trust II, incorporated by reference to Exhibit 4.5 to MetLife, Inc.'s, MetLife Capital Trust II's and MetLife Capital Trust III's Registration Statement on Form S-3, Registration Nos. 333-112073, 333-112073-02 and 333-112073-01 (the "2004 S-3 Registration Statement"). 4.12 Certificate of Trust of MetLife Capital Trust III, incorporated by reference to Exhibit 4.7 to the 2001 S-3 Registration Statement. 4.13 Certificate of Amendment to Certificate of Trust of MetLife Capital Trust III, incorporated by reference to Exhibit 4.6 to the 2004 S-3 Registration Statement. 4.14 Declaration of Trust of MetLife Capital Trust II, incorporated by reference to Exhibit 4.5 to the 2001 S-3 Registration Statement. 4.15 Declaration of Trust of MetLife Capital Trust III, incorporated by reference to Exhibit 4.5 to the 2001 S-3 Registration Statement. 4.16 Form of Amended and Restated Declaration of Trust of MetLife Capital Trust II. 4.17 Form of Amended and Restated Declaration of Trust of MetLife Capital Trust III. 4.18 Form of Guarantee Agreement relating to MetLife Capital Trust II. 4.19 Form of Guarantee Agreement relating to MetLife Capital Trust III.
5 EX-4.1 2 y10123exv4w1.txt FORM OF STOCK PURCHASE CONTRACT AGREEMENT Exhibit 4.1 ================================================================================ STOCK PURCHASE CONTRACT AGREEMENT between METLIFE, INC. and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Stock Purchase Contract Agent Dated as of June 21, 2005 ================================================================================ TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01 Definitions...................................................................... 1 Section 1.02 Compliance Certificates and Opinions............................................. 13 Section 1.03 Form of Documents Delivered to Stock Purchase Contract Agent..................... 14 Section 1.04 Acts of Holders; Record Dates.................................................... 15 Section 1.05 Notices.......................................................................... 16 Section 1.06 Notice to Holders; Waiver........................................................ 17 Section 1.07 Effect of Headings and Table of Contents......................................... 18 Section 1.08 Successors and Assigns........................................................... 18 Section 1.09 Separability Clause.............................................................. 18 Section 1.10 Benefits of Agreement............................................................ 18 Section 1.11 Governing Law.................................................................... 18 Section 1.12 Legal Holidays................................................................... 18 Section 1.13 Counterparts..................................................................... 19 Section 1.14 Inspection of Agreement.......................................................... 19 Section 1.15 Appointment of Financial Institution as Agent for the Company.................... 19 Section 1.16 No Waiver........................................................................ 19 ARTICLE II CERTIFICATE FORMS Section 2.01 Forms of Certificates Generally.................................................. 19 Section 2.02 Form of Stock Purchase Contract Agent's Certificate of Authentication............ 20 ARTICLE III THE COMMON EQUITY UNITS Section 3.01 Amount; Form and Denominations................................................... 21 Section 3.02 Rights and Obligations Evidenced by the Certificates............................. 21 Section 3.03 Execution, Authentication, Delivery and Dating................................... 22 Section 3.04 Temporary Certificates........................................................... 23 Section 3.05 Registration; Registration of Transfer and Exchange.............................. 23
i TABLE OF CONTENTS (CONTINUED)
PAGE Section 3.06 Book-Entry Interests............................................................. 25 Section 3.07 Notices to Holders............................................................... 26 Section 3.08 Appointment of Successor Depositary.............................................. 26 Section 3.09 Definitive Certificates.......................................................... 26 Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates............................... 27 Section 3.11 Persons Deemed Owners............................................................ 28 Section 3.12 Cancellation..................................................................... 29 Section 3.13 Creation of Stripped Common Equity Units by Substitution of Treasury Securities.. 29 Section 3.14 Recreation of Normal Common Equity Units......................................... 31 Section 3.15 Transfer of Collateral upon Occurrence of Termination Event...................... 32 Section 3.16 No Consent to Assumption......................................................... 33 ARTICLE IV THE TRUST PREFERRED SECURITIES Section 4.01 Distributions; Rights to Distributions Preserved................................. 33 Section 4.02 Notice and Voting................................................................ 34 ARTICLE V THE PURCHASE CONTRACTS Section 5.01 Purchase of Shares of Common Stock............................................... 35 Section 5.02 Remarketing; Payment of Purchase Price........................................... 39 Section 5.03 Issuance of Shares of Common Stock............................................... 41 Section 5.04 Adjustment of Fixed Daily Settlement Rates....................................... 42 Section 5.05 Notice of Adjustments and Certain Other Events................................... 49 Section 5.06 Termination Event; Notice........................................................ 49 Section 5.07 Early Settlement................................................................. 50 Section 5.08 No Fractional Shares............................................................. 52 Section 5.09 Charges and Taxes................................................................ 52 Section 5.10 Contract Payments................................................................ 53 Section 5.11 Deferral of Contract Payments.................................................... 57 ARTICLE VI REMEDIES
ii TABLE OF CONTENTS (CONTINUED)
PAGE Section 6.01 Unconditional Right of Holders to Receive Contract Payments and to Purchase Shares of Common Stock........................................................... 60 Section 6.02 Restoration of Rights and Remedies............................................... 60 Section 6.03 Rights and Remedies Cumulative................................................... 60 Section 6.04 Delay or Omission Not Waiver..................................................... 60 Section 6.05 Undertaking for Costs............................................................ 60 Section 6.06 Waiver of Stay or Extension Laws................................................. 61 ARTICLE VII THE STOCK PURCHASE CONTRACT AGENT Section 7.01 Certain Duties and Responsibilities.............................................. 61 Section 7.02 Notice of Default................................................................ 62 Section 7.03 Certain Rights of Stock Purchase Contract Agent.................................. 62 Section 7.04 Not Responsible for Recitals or Issuance of Common Equity Units.................. 64 Section 7.05 May Hold Common Equity Units..................................................... 65 Section 7.06 Money Held in Custody............................................................ 65 Section 7.07 Compensation and Reimbursement................................................... 65 Section 7.08 Corporate Stock Purchase Contract Agent Required, Eligibility.................... 66 Section 7.09 Resignation and Removal; Appointment of Successor................................ 66 Section 7.10 Acceptance of Appointment by Successor........................................... 67 Section 7.11 Merger, Conversion, Consolidation or Succession to Business...................... 68 Section 7.12 Preservation of Information; Communications to Holders........................... 68 Section 7.13 No Obligations of Stock Purchase Contract Agent.................................. 69 Section 7.14 Tax Compliance................................................................... 69 ARTICLE VIII SUPPLEMENTAL AGREEMENTS Section 8.01 Supplemental Agreements Without Consent of Holders................................ 70 Section 8.02 Supplemental Agreements with Consent of Holders................................... 70 Section 8.03 Execution of Supplemental Agreements............................................ 71 Section 8.04 Effect of Supplemental Agreements............................................... 72 Section 8.05 Reference to Supplemental Agreements............................................ 72
iii TABLE OF CONTENTS (CONTINUED)
PAGE ARTICLE IX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE Section 9.01 Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property Except under Certain Conditions........................................................ 72 Section 9.02 Rights and Duties of Successor Corporation....................................... 73 Section 9.03 Officers' Certificate and Opinion of Counsel Given to Stock Purchase Contract Agent ........................................................................... 73 ARTICLE X COVENANTS Section 10.01 Performance Under Stock Purchase Contracts...................................... 73 Section 10.02 Maintenance of Office or Agency................................................. 74 Section 10.03 Company to Reserve Common Stock................................................. 74 Section 10.04 Covenants as to Common Stock.................................................... 74 Section 10.05 Statements of Officers of the Company as to Default............................. 74 Section 10.06 ERISA........................................................................... 75 Section 10.07 Tax Treatment................................................................... 75
EXHIBITS: Exhibit A - Form of Normal Common Equity Unit Certificate Exhibit B - Form of Stripped Common Equity Unit Certificate Exhibit C - Instruction to Stock Purchase Contract Agent Exhibit D - Notice from Stock Purchase Contract Agent to Holders Exhibit E - Notice to Settle by Cash Exhibit F - Notice From Stock Purchase Contract Agent To Collateral Agent (Settlement of Purchase Contract through Remarketing) iv STOCK PURCHASE CONTRACT AGREEMENT, dated as of June 21, 2005, between MetLife, Inc., a Delaware corporation (the "Company"), and J.P. Morgan Trust Company, National Association, acting as stock purchase contract agent for the Holders of Common Equity Units (as defined herein) from time to time (the "Stock Purchase Contract Agent"). RECITALS The Company has duly authorized the execution and delivery of this Agreement and the Certificates (as defined herein) evidencing the Common Equity Units. All things necessary to make the Stock Purchase Contracts (as defined herein), when the Certificates are executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Stock Purchase Contract Agent, as provided in this Agreement, the valid obligations of the Company, and to constitute these presents a valid agreement of the Company, in accordance with its terms, have been done. For and in consideration of the premises and the purchase of the Common Equity Units by the Holders thereof, it is mutually agreed as follows: ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01 Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular, and nouns and pronouns of the masculine gender include the feminine and neuter genders; (b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States; (c) 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, Exhibit or other subdivision; and the following terms have the meanings given to them in this Section 1.01(c): "Act" has the meaning, with respect to any Holder, set forth in Section 1.04(a). "Adjustment Factor" has the meaning set forth in Section 5.01(a). "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "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. "Applicable Remarketing Settlement Date" means each of the First Applicable Remarketing Settlement Date, the Second Remarketing Settlement Date and the Third Remarketing Settlement Date in respect to a given series of the Trust Preferred Securities. "Applicants" has the meaning set forth in Section 7.12(b). "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. "Base Indenture" means the Indenture, dated as of June 21, 2005 between the Company and the Debenture Trustee, as amended or supplemented from time to time. "Beneficial Owner" means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest as reflected on the books of the Depositary or on the books of a Person maintaining an account with such Depositary (directly as a Depositary Participant or as an indirect participant, in each case in accordance with the rules of such Depositary). "Board Of Directors" means the board of directors of the Company or a duly authorized committee of that board. "Board Resolution" means one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary of the Company, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Stock Purchase Contract Agent. "Book-Entry Interest" means a beneficial interest in a Global Certificate, registered in the name of a Depositary or a nominee thereof, ownership and transfers of which shall be maintained and made through book entries by such Depositary as described in Section 3.06. "Business Day" means a day other than a Saturday, Sunday or any other day on which banking institutions and trust companies in New York City are permitted or required by any applicable law to close. "Capital Stock" means any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated, whether voting or non-voting) corporate stock or similar equity or membership interests in other types of entities. 2 "Cash Merger" has the meaning set forth in Section 5.04(b)(ii). "Cash Merger Early Settlement" has the meaning set forth in Section 5.04(b)(ii). "Cash Merger Early Settlement Date" has the meaning set forth in Section 5.04(b)(ii). "Cash Settlement" has the meaning set forth in Section 5.02(b)(i). "Certificate" means a Normal Common Equity Unit Certificate or a Stripped Common Equity Unit Certificate. "Closing Price" has the meaning set forth in Section 5.01(a). "Code" means the Internal Revenue Code of 1986, as amended. "Collateral" has the meaning set forth in Section 1.01(e) of the Pledge Agreement. "Collateral Account" has the meaning set forth in Section 1.01(e) of the Pledge Agreement. "Collateral Agent" means JPMorgan Chase Bank, National Association, as Collateral Agent under the Pledge Agreement until a successor Collateral Agent shall have become appointed as such pursuant to the applicable provisions of the Pledge Agreement, and thereafter "Collateral Agent" shall mean the Person who is then the Collateral Agent thereunder. "Collateral Substitution" means (i) with respect to a Normal Common Equity Unit, the substitution for the Pledged Trust Preferred Securities included in such Normal Common Equity Unit by Treasury Securities or portions thereof in an aggregate principal amount at maturity equal to the aggregate liquidation amount of such Pledged Trust Preferred Securities, or (ii) with respect to a Stripped Common Equity Unit, the substitution for the Pledged Treasury Securities included in such Stripped Common Equity Unit by Trust Preferred Securities in an aggregate liquidation amount equal to the aggregate principal amount at stated maturity of the Pledged Treasury Securities. "Common Equity Unit" means a Normal Common Equity Unit or a Stripped Common Equity Unit, as the case may be. "Common Stock" means the common stock, par value $0.01 per share, of the Company. "Company" means the Person named as the "Company" in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provision of this Agreement, and thereafter "Company" shall mean such successor. "Constituent Person" has the meaning set forth in Section 5.04(b)(i). 3 "Contract Payments" means the payments payable by the Company on the Payment Dates in respect of each Stock Purchase Contract, at a rate per year of 1.510% on the Stated Amount of $25.00 per Stock Purchase Contract from and including the issue date of Common Equity Units to but excluding the Initial Stock Purchase Date, and at a rate per year of 1.465% on the remaining Stated Amount of $12.50 per Stock Purchase Contract from and including the Initial Stock Purchase Date to but excluding the Subsequent Stock Purchase Date. "Corporate Trust Office" means the office of the Stock Purchase Contract Agent at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, NY 10004. "Current Market Price" has the meaning set forth in Section 5.04(a)(viii). "Custodial Agent" means JPMorgan Chase Bank, National Association, as Custodial Agent under the Pledge Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of the Pledge Agreement, and thereafter "Custodial Agent" shall mean the Person who is then the Custodial Agent thereunder. "Daily Amount" has the meaning set forth in Section 5.01(a). "Debentures", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreements. "Debenture Trustee" means J.P. Morgan Trust Company, National Association, as trustee pursuant to the Indenture, or its successor in interest in such capacity, or any successor trustee appointed as provided in the Indenture. "Deferred Contract Payments" has the meaning set forth in Section 5.12(a). "Depositary" means a clearing agency registered under Section 17A of the Exchange Act that is designated to act as Depositary for the Common Equity Units as contemplated by Sections 3.06 and 3.08. "Depositary Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depositary effects book-entry transfers and pledges of securities deposited with the Depositary. "Determination Date" has the meaning set forth in Section 5.01(a). "Distribution Rate, in respect of a series of Trust Preferred Securities," has the meaning set forth in the applicable Trust Agreement. "Dividend Threshold Amount" has the meaning set forth in Section 5.04(a)(iv). "DTC" means The Depository Trust Company. 4 "Early Settlement" has the meaning set forth in Section 5.07(a). "Early Settlement Amount" has the meaning set forth in Section 5.07(b). "Early Settlement Date" has the meaning set forth in Section 5.07(b). "Early Settlement Rate" has the meaning set forth in Section 5.07(c). "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder. "Expiration Date" has the meaning set forth in Section 1.04(e). "Expiration Time" has the meaning set forth in Section 5.04(a)(v). "Failed Remarketing", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreements. "First Supplemental Indenture" means the First Supplemental Indenture to the Base Indenture, dated as of the date hereof, between the Company and the Debenture Trustee, as amended or supplemented from time to time. "First Applicable Remarketing Settlement Date" means, with respect to the Series A Trust Preferred Securities, August 15, 2008; with respect to the Series B Trust Preferred Securities, six months after the earlier of (i) the Remarketing Settlement Date of a Successful Remarketing of the Series A Trust Preferred Securities or (ii) February 15, 2009. "Fixed Daily Settlement Rates" has the meaning set forth in Section 5.01(a). "Global Certificate" means a Certificate that evidences all or part of the Common Equity Units and is registered in the name of the Depositary or a nominee thereof. "Holder" means, with respect to a Common Equity Unit, the Person in whose name the Common Equity Units evidenced by a Certificate is registered in the Security Register; provided, however, that solely for the purpose of determining whether the Holders of the requisite number of Common Equity Units have voted on any matter (and not for any other purpose hereunder), if the Common Equity Units remain in the form of one or more Global Certificates and if the Depositary that is, or the nominee of whom is the registered holder of such Global Certificate has sent an omnibus proxy assigning voting rights to the Depositary Participants to whose accounts the Common Equity Units are credited on the record date, the term "Holder" shall mean such Depositary Participant acting at the direction of the Beneficial Owners. 5 "Indemnitees" has the meaning set forth in Section 7.07(c). "Indenture" means the Base Indenture and the First Supplemental Indenture, taken together. "Initial Liquidation Amount", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreement. "Initial Stock Purchase Date" means August 15, 2008 provided that the Initial Stock Purchase Date may be deferred for quarterly periods until February 15, 2009 in accordance with Section 5.02(b)(v). "Issuer Order" or "Issuer Request" means a written order or request signed in the name of the Company by (i) either its Chief Executive Officer, its President or one of its Vice Presidents, and (ii) either its Corporate Secretary or one of its Assistant Corporate Secretaries or its Treasurer or one of its Assistant Treasurers, and delivered to the Stock Purchase Contract Agent. "Market Disruption Event" has the meaning set forth in Section 5.01(a). "Maximum Daily Settlement Rate" has the meaning set forth in Section 5.01(a). "Minimum Daily Settlement Rate" has the meaning set forth in Section 5.01(a). "Non-Electing Share" has the meaning set forth in Section 5.04(b)(i). "Normal Common Equity Unit" means the collective rights and obligations of a Holder of a Normal Common Equity Unit Certificate in respect of (i) a 1/80 undivided beneficial interest in a Series A Trust Security, (ii) a 1/80 undivided beneficial interest in a Series B Trust Security, in each case subject to the Pledge thereof, and (iii) the related Stock Purchase Contract. "Normal Common Equity Unit Certificate" means a certificate evidencing the rights and obligations of a Holder in respect of the number of Normal Common Equity Units specified on such certificate. "NYSE" has the meaning set forth in Section 5.01(a). "Officers' Certificate" means a certificate signed by (i) either the Company's Chief Executive Officer, its President or one of its Vice Presidents, and (ii) either the Company's Corporate Secretary or one of its Assistant Corporate Secretaries or its Treasurer or one of its Assistant Treasurers, and delivered to the Stock Purchase Contract Agent. "Opinion Of Counsel" means a written opinion of counsel, who may be counsel to the Company (and who may be an employee of the Company), and who shall be reasonably acceptable to the Stock Purchase Contract Agent. An Opinion of Counsel may rely on certificates as to matters of fact. 6 "Outstanding Common Equity Units" means as of the date of determination, all Common Equity Units evidenced by Certificates theretofore authenticated, executed and delivered under this Agreement, except: (i) if a Termination Event has occurred, (x) Normal Common Equity Units for which the underlying Trust Preferred Securities have been theretofore deposited with the Stock Purchase Contract Agent in trust for the Holders of such Normal Common Equity Units and (y) Stripped Common Equity Units; (ii) Common Equity Units evidenced by Certificates theretofore cancelled by the Stock Purchase Contract Agent or delivered to the Stock Purchase Contract Agent for cancellation or deemed cancelled pursuant to the provisions of this Agreement; and (iii) Common Equity Units evidenced by Certificates in exchange for or in lieu of which other Certificates have been authenticated, executed on behalf of the Holder and delivered pursuant to this Agreement, other than any such Certificate in respect of which there shall have been presented to the Stock Purchase Contract Agent proof satisfactory to it that such Certificate is held by a protected purchaser in whose hands the Common Equity Units evidenced by such Certificate are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite number of the Common Equity Units have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Common Equity Units owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding Common Equity Units, except that, in determining whether the Stock Purchase Contract Agent shall be authorized and protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Common Equity Units that a Responsible Officer of the Stock Purchase Contract Agent actually knows to be so owned shall be so disregarded. Common Equity Units so owned that have been pledged in good faith may be regarded as Outstanding Common Equity Units if the pledgee establishes to the satisfaction of the Stock Purchase Contract Agent the pledgee's right so to act with respect to such Common Equity Units and that the pledgee is not the Company or any Affiliate of the Company. "Payment Date" means each February 15, May 15, August 15 and November 15 of each year, commencing August 15, 2005. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature. "Plan" means an employee benefit plan that is subject to ERISA, a plan or individual retirement account that is subject to Section 4975 of the Code or any entity whose assets are considered assets of any such plan. 7 "Pledge" means the pledge under the Pledge Agreement of the Trust Preferred Securities or the Treasury Securities, as the case may be, in each case constituting a part of the Common Equity Units. "Pledge Agreement" means the Pledge Agreement, dated as of the date hereof, among the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Stock Purchase Contract Agent, on its own behalf and as attorney-in-fact for the Holders from time to time of the Common Equity Units, as amended from time to time. "Pledged Treasury Securities" has the meaning set forth in Section 1.01(e) of the Pledge Agreement. "Pledged Trust Preferred Securities" has the meaning set forth in Section 1.01(e) of the Pledge Agreement. "Predecessor Certificate" means a Predecessor Normal Common Equity Unit Certificate or a Predecessor Stripped Common Equity Unit Certificate. "Predecessor Normal Common Equity Unit Certificate" of any particular Normal Common Equity Unit Certificate means every previous Normal Common Equity Unit Certificate evidencing all or a portion of the rights and obligations of the Company and the Holder under the Normal Common Equity Units evidenced thereby; and, for the purposes of this definition, any Normal Common Equity Unit Certificate authenticated and delivered under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Normal Common Equity Unit Certificate shall be deemed to evidence the same rights and obligations of the Company and the Holder as the mutilated, destroyed, lost or stolen Normal Common Equity Unit Certificate. "Predecessor Stripped Common Equity Unit Certificate" of any particular Stripped Common Equity Unit Certificate means every previous Stripped Common Equity Unit Certificate evidencing all or a portion of the rights and obligations of the Company and the Holder under the Stripped Common Equity Units evidenced thereby; and, for the purposes of this definition, any Stripped Common Equity Unit Certificate authenticated and delivered under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Stripped Common Equity Unit Certificate shall be deemed to evidence the same rights and obligations of the Company and the Holder as the mutilated, destroyed, lost or stolen Stripped Common Equity Unit Certificate. "Proceeds" has the meaning set forth in Section 1.01(e) of the Pledge Agreement. "Prospectus" means the prospectus relating to the delivery of shares or any securities in connection with an Early Settlement pursuant to Section 5.07 or a Cash Merger Early Settlement of Stock Purchase Contracts pursuant to Section 5.04(b)(ii), in the form in which first filed, or transmitted for filing, with the Securities and Exchange Commission after the effective date of the Registration Statement pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein as of the date of such Prospectus. 8 "Purchase Price" has the meaning set forth in Section 5.01(a). "Purchased Shares" has the meaning set forth in Section 5.04(a)(vi)(A). "Record Date" for any distribution and Contract Payment payable on any Payment Date means, as to any Global Certificate or any other Certificate, the first business day of the calendar month in which the relevant Payment Date falls; provided that the Company may, at its option, upon notice to the Stock Purchase Contract Agent, select any other day as the Record Date for any Payment Date so long as such Record Date selected is more than one Business Day but less than 60 Business Days prior to such Payment Date. "Reference Dealer" means a dealer engaged in trading of convertible securities. "Reference Price" has the meaning set forth in Section 5.01(a)(ii). "Registration Statement" means a registration statement under the Securities Act prepared by the Company covering, inter alia, the delivery by the Company of any securities in connection with an Early Settlement on the Early Settlement Date or a Cash Merger Early Settlement of Stock Purchase Contracts on the Cash Merger Early Settlement Date under Section 5.04(b)(ii), including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement, and any post-effective amendments thereto. "Relevant Exchange" has the meaning set forth in Section 5.01(a). "Remarketing", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreement. "Remarketing Agent", in respect of a series of Trust Preferred Securities," has the meaning set forth in the applicable Trust Agreement. "Remarketing Agreement", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreement. "Remarketing Date", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreement. "Remarketing Fee", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreement. "Remarketing Settlement Date" each "Remarketing Settlement Date" as defined the Trust Agreement relating to MetLife Capital Trust II and "Remarketing Settlement Date" as defined the Trust Agreement relating to MetLife Capital Trust III. "Reorganization Event" has the meaning set forth in Section 5.04(b). 9 "Responsible Officer" shall mean, when used with respect to the Stock Purchase Contact Agent, any officer within the corporate trust department of the Stock Purchase Contract Agent, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Stock Purchase Contract Agent who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Agreement. "Second Applicable Remarketing Settlement Date" means, with respect to the Series A Trust Preferred Securities, November 15, 2008, if the Remarketing of the Series A Trust Preferred Securities on the First Applicable Remarketing Settlement Date for the Series A Trust Preferred Securities is a Failed Remarketing; with respect to the Series B Trust Preferred Securities, three months after the First Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities, if the Remarketing of the Series B Trust Preferred Securities on the First Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities is a Failed Remarketing. "Securities Act" means the Securities Act of 1933, as amended and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder. "Securities Intermediary" means JPMorgan Chase Bank, National Association, as Securities Intermediary under the Pledge Agreement until a successor Securities Intermediary shall have become such pursuant to the applicable provisions of the Pledge Agreement, and thereafter "Securities Intermediary" shall mean such successor or any subsequent successor who is appointed pursuant to the Pledge Agreement. "Security Register" and "Security Registrar" have the respective meanings set forth in Section 3.05. "Senior Debt" has the meaning set forth in Section 6.1 of the First Supplemental Indenture. "Separate Trust Preferred Securities" means Trust Preferred Securities that are no longer a component of Normal Common Equity Units. "Series A Trust Preferred Security" means a "Trust Preferred Security" as defined in the Trust Agreement relating to MetLife Capital Trust II. "Series B Trust Preferred Security" means a "Trust Preferred Security" as defined the Trust Agreement relating to MetLife Capital Trust III. "Settlement Rate" has the meaning set forth in Section 5.01(a). "Stated Amount" means, with respect to any one Normal Common Equity Unit or Stripped Common Equity Unit, $25.00 prior to the Initial Stock Purchase Date and 10 $12.50 thereafter after the Subsequent Stock Purchase Date $12.50, and, with respect to any one Trust Preferred Security, $1,000. "Stock Purchase Contract" means, with respect to any Common Equity Units, the contract forming a part of such Common Equity Units and obligating (i) the Company to sell, and the Holder of such Common Equity Units to purchase, shares of Common Stock and (ii) the Company to pay the Holder thereof Contract Payments, in each case on the terms and subject to the conditions set forth in Article V hereof. "Stock Purchase Contract Agent" means the Person named as the "Stock Purchase Contract Agent" in the first paragraph of this Agreement until a successor Stock Purchase Contract Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter "Stock Purchase Contract Agent" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. "Stock Purchase Contract Settlement Fund" has the meaning set forth in Section 5.03. "Stock Purchase Date" means each of the Initial Stock Purchase Date and the Subsequent Stock Purchase Date. "Stripped Common Equity Units" means, following the substitution of Treasury Securities for Pledged Trust Preferred Securities as collateral to secure a Holder's obligations under the applicable Stock Purchase Contract, the collective rights and obligations of a Holder of a Stripped Common Equity Unit Certificate in respect of such Treasury Securities, subject to the Pledge thereof, and the related Stock Purchase Contract. "Stripped Common Equity Unit Certificate" means a certificate evidencing the rights and obligations of a Holder in respect of the number of Stripped Common Equity Units specified on such certificate. "Subsequent Stock Purchase Date" means February 15, 2009, provided that the Subsequent Stock Purchase Date may be deferred for quarterly periods until February 15, 2010 in accordance with Section 5.02(b)(v). "Successful", in respect of a series of Trust Preferred Securities, has the meaning set forth in the applicable Trust Agreement. "Termination Date" means the date, if any, on which a Termination Event occurs. "Termination Event" means the occurrence of any of the following events: (i) at any time on or prior to the Subsequent Stock Purchase Date, a judgment, decree or court order shall have been entered granting relief under the Bankruptcy Code, adjudicating the Company to be insolvent, or approving as properly filed a petition seeking reorganization or liquidation of the Company or any other similar applicable federal or state law and if such judgment, decree or order shall have been 11 entered more than 60 days prior to the Stock Purchase Date, such decree or order shall have continued undischarged and unstayed for a period of 60 days; (ii) at any time on or prior to the Subsequent Stock Purchase Date, a judgment, decree or court order for the appointment of a receiver or liquidator or trustee or assignee n bankruptcy or insolvency of the Company or of its property, or for the termination or liquidation of its affairs, shall have been entered and if such judgment, decree or order shall have been entered more than 60 days prior to the Stock Purchase Date, such judgment, decree or order shall have continued undischarged and unstayed for a period of 60 days; or (iii) at any time on or prior to the Subsequent Stock Purchase Date, the Company shall file a petition for relief under the Bankruptcy Code, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization or liquidation under the Bankruptcy Code or any other similar applicable federal or state law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due. "Third Applicable Remarketing Settlement Date" means, with respect to the Series A Trust Preferred Securities, February 15, 2009, if the Remarketing of the Series A Trust Preferred Securities on the Second Applicable Remarketing Settlement Date for the Series A Trust Preferred Securities is a Failed Remarketing; and, with respect to the Series B Trust Preferred Securities, the day that is three months after the Second Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities, if the Remarketing of the Series B Trust Preferred Securities on the Second Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities was a Failed Remarketing. "Threshold Appreciation Price" has the meaning set forth in Section 5.01(a). "TIA" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. "Trading Day" has the meaning set forth in Section 5.01(a). "Trading Day Period" has the meaning set forth in Section 5.01(a). "Treasury Security" means a zero-coupon U.S. Treasury Security maturing on the Applicable Remarketing Settlement Date with a principal amount of $1,000 payable on the Applicable Remarketing Settlement Date and with the CUSIP numbers as set forth below: 12
ZERO COUPON TREASURY SECURITY MATURITY DATE CUSIP NO. - ------------------------------------------- --------- August 15, 2008 912833CU2 November 15, 2008 912833GD6 February 15, 2009 912833CV0 May 15, 2009 912833GE4 August 15, 2009 912833CW8 November 15, 2009 912833GF1 February 15, 2010 912833CX6
"Trust Agreement" means each of the Amended and Restated Declarations of Trust, dated as of the date hereof, among the Company, as Sponsor, the Property Trustee, the Delaware Trustee and the Administrative Trustees (each as named therein) and the several Holders (as defined therein) relating to MetLife Capital Trust II and MetLife Capital Trust III, respectively. "Trust Preferred Securities" means the Series A Trust Preferred Securities and the Series B Trust Preferred Securities, collectively. "Underwriters" means the underwriters identified in Schedule I to the Underwriting Agreement. "Underwriting Agreement" means the Underwriting Agreement, dated June 15 2005, among the Company, MetLife Capital Trust II, MetLife Capital Trust III, and the Underwriters, relating to the issuance of Normal Common Equity Units by the Company. "Unsecured Notes" means the unsecured junior subordinated notes of the Company that will be issued pursuant to the Base Indenture, in the Company's sole discretion, as provided in Section 5.11(c). "Vice President" means any vice president, whether or not designated by a number or a word or words added before or after the title "Vice President." Section 1.02.Compliance Certificates and Opinions. Except as otherwise expressly provided by this Agreement, upon any application or request by the Company to the Stock Purchase Contract Agent to take any action in accordance with any provision of this Agreement, the Company shall furnish to the Stock Purchase Contract Agent an Officers' Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and, if reasonably requested by the Stock Purchase Contract Agent, an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of 13 any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished. Notwithstanding any portion of this Agreement to the contrary, the Company shall not be required to furnish the Stock Purchase Contract Agent an Opinion of Counsel in connection with the issuance of the Common Equity Units pursuant to the Underwriting Agreement. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement (other than the Officers' Certificate provided for in Section 10.05) shall include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.03 Form of Documents Delivered to Stock Purchase Contract Agent. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which its certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument. 14 Section 1.04 Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Stock Purchase Contract Agent and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to Section 7.01) conclusive in favor of the Stock Purchase Contract Agent and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner that the Stock Purchase Contract Agent deems sufficient. (c) The ownership of Common Equity Units shall be proved by the Security Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Common Equity Units shall bind every future Holder of the same Common Equity Units and the Holder of every Certificate evidencing such Common Equity Units issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Stock Purchase Contract Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Certificate. (e) The Company may set any date as a record date for the purpose of determining the Holders of Outstanding Common Equity Units entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders of Common Equity Units. If any record date is set pursuant to this paragraph, the Holders of the Outstanding Normal Common Equity Units and the Outstanding Stripped Common Equity Units, as the case may be, on such record date, and no other Holders, shall be entitled to take the relevant action with respect to the Normal Common Equity Units or the Stripped Common Equity Units, as the case may be, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken prior to or on the applicable Expiration Date by Holders of the requisite number of Outstanding Common Equity Units on such record date. Nothing contained in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and be of no effect), and nothing contained in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite number of Outstanding Common Equity Units on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Stock Purchase 15 Contract Agent in writing and to each Holder of Common Equity Units in the manner set forth in Section 1.06. With respect to any record date set pursuant to this Section 1.04(e), the Company may designate any date as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Stock Purchase Contract Agent in writing, and to each Holder of Common Equity Unit in the manner set forth in Section 1.06, prior to or on the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the Company shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date. Section 1.05 Notices. Any notice or communication is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), telecopier (with receipt confirmed) or overnight air courier guaranteeing next day delivery, to the others' address; provided that notice shall be deemed given to the Stock Purchase Contract Agent only upon receipt thereof: If to the Stock Purchase Contract Agent: J.P. Morgan Trust Company, National Association Worldwide Securities Services 4 New York Plaza, 15th Floor New York, NY 10004 Attention: Worldwide Securities Services Telephone: (212) 623-5233 Facsimile: (212) 623-6215 If to the Company: MetLife, Inc. 27-01 Queens Plaza North Long Island City, NY 11101 Attention: Treasurer Facsimile: 212-578-0266 16 If to the Collateral Agent: JPMorgan Chase Bank, National Association Worldwide Securities Services 4 New York Plaza, 15th Floor New York, NY 10004 Attention: Worldwide Securities Services Telephone: (212) 623-5233 Facsimile: (212) 623-6215 If to the Debenture Trustee: J.P. Morgan Trust Company, National Association Worldwide Securities Services 4 New York Plaza, 15th Floor New York, NY 10004 Attention: Worldwide Securities Services Telephone: (212) 623-5233 Facsimile: (212) 623-6215 The Stock Purchase Contract Agent shall send to the Debenture Trustee at the telecopier number set forth above a copy of any notices in the form of Exhibits C, D, E or F it sends or receives. Section 1.06 Notice to Holders; Waiver. Where this Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed to any particular Holder, shall affect the sufficiency of such notice with respect to other Holders. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Stock Purchase Contract Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Stock Purchase Contract Agent shall constitute a sufficient notification for every purpose hereunder. 17 Section 1.07 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 1.08 Successors and Assigns. All covenants and agreements in this Agreement by the Company and the Stock Purchase Contract Agent shall bind their respective successors and assigns, whether so expressed or not. Section 1.09 Separability Clause. In case any provision in this Agreement or in the Common Equity Units shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby. Section 1.10 Benefits of Agreement. Nothing contained in this Agreement or in the Common Equity Units, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and, to the extent provided hereby, the Holders, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be beneficiaries of this Agreement and shall be bound by all of the terms and conditions hereof and of the Common Equity Units evidenced by their Certificates by their acceptance of delivery of such Certificates. Section 1.11 Governing Law. THIS AGREEMENT AND THE COMMON EQUITY UNITS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Section 1.12 Legal Holidays. In any case where any Payment Date shall not be a Business Day (notwithstanding any other provision of this Agreement or the Common Equity Units), Contract Payments or other distributions shall not be paid on such date, but Contract Payments or such other distributions shall be paid on the next succeeding Business Day with the same force and effect as if made on such Payment Date, provided that if such Business Day is in the next succeeding calendar year, then payment of the Contract Payments or other distributions will be made on the Business Day immediately preceding such Payment Date. No interest shall accrue or be payable by the Company or to any Holder for the period from and after any such Payment Date. In any case where the Initial Stock Purchase Date, the Subsequent Stock Purchase Date or any Early Settlement Date or Cash Merger Early Settlement Date shall not be a Business Day (notwithstanding any other provision of this Agreement or the Common Equity Units), Stock Purchase Contracts shall not be performed and Early Settlement and Cash Merger Early Settlement shall not be effected on such date, but Stock Purchase Contracts shall be performed or Early Settlement or Cash Merger Early Settlement shall be effected, as applicable, on the next 18 succeeding Business Day with the same force and effect as if made on such Stock Purchase Date, Early Settlement Date or Cash Merger Early Settlement Date, as applicable. Section 1.13 Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. Section 1.14 Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office for inspection by any Holder or Beneficial Owner. Section 1.15 Appointment of Financial Institution as Agent for the Company. The Company may appoint a financial institution (which may be the Collateral Agent) to act as its agent in performing its obligations and in accepting and enforcing performance of the obligations of the Stock Purchase Contract Agent and the Holders, under this Agreement and the Stock Purchase Contracts, by giving notice of such appointment in the manner provided in Section 1.05 hereof. Any such appointment shall not relieve the Company in any way from its obligations hereunder. Section 1.16 No Waiver. No failure on the part of the Company, the Stock Purchase Contract Agent, the Collateral Agent, the Securities Intermediary or any of their respective 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 single or partial exercise by the Company, the Stock Purchase Contract Agent, the Collateral Agent, the Securities Intermediary or any of their respective 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. ARTICLE II CERTIFICATE FORMS Section 2.01 Forms of Certificates Generally. The Certificates (including the form of Stock Purchase Contract forming part of each Common Equity Units evidenced thereby) shall be in substantially the form set forth in Exhibit A hereto (in the case of Certificates evidencing Normal Common Equity Units) or Exhibit B hereto (in the case of Certificates evidencing Stripped Common Equity Units), with such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Common Equity Units are listed or any depositary therefor, or as may, 19 consistently herewith, be determined by the officers of the Company executing such Certificates, as evidenced by their execution of the Certificates. The definitive Certificates shall be produced in any manner as determined by the officers of the Company executing the Common Equity Units evidenced by such Certificates, consistent with the provisions of this Agreement, as evidenced by their execution thereof. Every Global Certificate authenticated, executed on behalf of the Holders and delivered hereunder shall bear a legend in substantially the following form: THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE STOCK PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE STOCK PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. Section 2.02 Form of Stock Purchase Contract Agent's Certificate of Authentication. The form of the Stock Purchase Contract Agent's certificate of authentication of the Common Equity Units shall be in substantially the form set forth on the form of the applicable Certificates. 20 ARTICLE III THE COMMON EQUITY UNITS Section 3.01 Amount; Form and Denominations. The aggregate number of Common Equity Units evidenced by Certificates authenticated, executed on behalf of the Holders and delivered hereunder is limited to 72,000,000 (or 82,800,000 if the option granted to the Underwriters pursuant to the Underwriting Agreement is exercised in full), except for Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.04, Section 3.05, Section 3.10, Section 3.13, Section 3.14 or Section 8.05. The Certificates shall be issuable only in registered form and only in denominations of a single Normal Common Equity Unit or Stripped Common Equity Unit and any integral multiple thereof. Section 3.02 Rights and Obligations Evidenced by the Certificates. Each Normal Common Equity Unit Certificate shall evidence the number of Normal Common Equity Units specified therein, with each such Normal Common Equity Unit representing (1) prior to the Initial Stock Purchase Date, the ownership by the Holder thereof of a 1/80 undivided beneficial interest in a Series A Trust Preferred Security, subject to the Pledge of such Series A Trust Preferred Security by such Holder pursuant to the Pledge Agreement, (2) the ownership by the Holder thereof of a 1/80 undivided beneficial interest in a Series B Trust Preferred Security and (3) one Stock Purchase Contract. The Stock Purchase Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder of each Normal Common Equity Unit, to pledge, pursuant to the Pledge Agreement, the Trust Preferred Securities forming a part of such Normal Common Equity Unit, to the Collateral Agent for the benefit of the Company, and to grant to the Collateral Agent, for the benefit of the Company, a security interest in the right, title and interest of such Holder (i) the Series A Trust Preferred Securities to secure the obligation of the Holder under each Stock Purchase Contract to purchase shares of Common Stock on the Initial Stock Purchase Date and (ii) the Series B Trust Preferred Securities to secure the obligation of the Holder under each Stock Purchase Contract to purchase shares of Common Stock on the Subsequent Stock Purchase Date. Upon the creation of a Stripped Common Equity Unit pursuant to Section 3.13, each Stripped Common Equity Unit Certificate shall evidence the number of Stripped Common Equity Units specified therein, with each such Stripped Common Equity Unit representing (1) if such Stripped Common Equity Unit is created prior to the Initial Stock Purchase Date, the ownership by the Holder thereof of a 1/80 undivided beneficial interest in a Treasury Security that matures as of the Applicable Remarketing Settlement Date for the Series A Trust Preferred Securities with a principal amount at maturity equal to $1,000, subject to the Pledge of such interest by such Holder pursuant to the Pledge Agreement, (2) the ownership by the Holder thereof of a 1/80 undivided beneficial interest in a Treasury Security that matures as of the Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities with a principal amount at maturity equal to $1,000, subject to the Pledge of such interest by such 21 Holder pursuant to the Pledge Agreement, and (3) one Stock Purchase Contract. The Stock Purchase Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder of each Stripped Common Equity Unit, to pledge, pursuant to the Pledge Agreement, such Holder's interest in each Treasury Security forming a part of such Stripped Common Equity Unit to the Collateral Agent, for the benefit of the Company, and to grant to the Collateral Agent, for the benefit of the Company, a security interest in the right, title and interest of such Holder (i) the Series A Treasury Security to secure the obligation of the Holder under each Stock Purchase Contract to purchase shares of Common Stock on the Initial Stock Purchase Date and (ii) the Series B Treasury Security to secure the obligation of the Holder under each Stock Purchase Contract to purchase Shares of Common Stock on the Subsequent Stock Purchase Date. Such Stock Purchase Contract shall not entitle the Holder of a Common Equity Unit to any of the rights of a holder of shares of Common Stock, prior to the purchase of shares of Common Stock under each Stock Purchase Contract, including, without limitation, the right to vote or receive any dividends or other payments or to consent or to receive notice as a stockholder in respect of the meetings of stockholders or for the election of directors of the Company or for any other matter, or any other rights whatsoever as a stockholder of the Company. Section 3.03 Execution, Authentication, Delivery and Dating. Subject to the provisions of Section 3.13 and Section 3.14 hereof, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Company may deliver Certificates executed by the Company to the Stock Purchase Contract Agent for authentication, execution on behalf of the Holders and delivery, together with its Issuer Order for authentication of such Certificates, and the Stock Purchase Contract Agent in accordance with such Issuer Order shall authenticate, execute on behalf of the Holders and deliver such Certificates. The Certificates shall be executed on behalf of the Company by its Chairman of the Board of Directors, its Chief Executive Officer, its President, its Chief Financial Officer, its Treasurer or one of its Vice Presidents. The signature of any of these officers on the Certificates may be manual or facsimile. Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates. No Stock Purchase Contract evidenced by a Certificate shall be valid until such Certificate has been executed on behalf of the Holder by the manual signature of an authorized officer of the Stock Purchase Contract Agent, as such Holder's attorney-in-fact. Such signature by an authorized officer of the Stock Purchase Contract Agent shall be conclusive evidence that the Holder of such Certificate has entered into the Stock Purchase Contracts evidenced by such Certificate. Each Certificate shall be dated the date of its authentication. 22 No Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein executed by an authorized officer of the Stock Purchase Contract Agent by manual signature, and such certificate upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder. Section 3.04 Temporary Certificates. Pending the preparation of definitive Certificates, the Company shall execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu of such definitive Certificates, temporary Certificates that are in substantially the form set forth in Exhibit A or Exhibit B hereto, as the case may be, with such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Normal Common Equity Units or Stripped Common Equity Units, as the case may be, are listed, or as may, consistently herewith, be determined by the officers of the Company executing such Certificates, as evidenced by their execution of the Certificates. If temporary Certificates are issued, the Company will cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates, the temporary Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the Corporate Trust Office, at the expense of the Company and without charge to the Holder. Upon surrender for cancellation of any one or more temporary Certificates, the Company shall execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, one or more definitive Certificates of like tenor and denominations and evidencing a like number of Common Equity Units as the temporary Certificate or Certificates so surrendered. Until so exchanged, the temporary Certificates shall in all respects evidence the same benefits and the same obligations with respect to the Common Equity Units evidenced thereby as definitive Certificates. Section 3.05 Registration; Registration of Transfer and Exchange. The Stock Purchase Contract Agent shall keep at the Corporate Trust Office a register (the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Stock Purchase Contract Agent shall provide for the registration of Certificates and of transfers of Certificates (the Stock Purchase Contract Agent, in such capacity, the "Security Registrar"). The Security Registrar shall record separately the registration and transfer of the Certificates evidencing Normal Common Equity Units and Stripped Common Equity Units. Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office, the Company shall execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall authenticate, execute on behalf of the designated transferee or transferees, and deliver, in the name of the designated transferee or transferees, one or more 23 new Certificates of any authorized denominations, of like tenor, and evidencing a like number of Normal Common Equity Units or Stripped Common Equity Units, as the case may be. At the option of the Holder, Certificates evidencing Normal Common Equity Units or Stripped Common Equity Units may be exchanged for other Certificates, of any authorized denominations and evidencing a like number of Normal Common Equity Units or Stripped Common Equity Units, as the case may be, upon surrender of the Certificates to be exchanged at the Corporate Trust Office. Whenever any Certificates are so surrendered for exchange, the Company shall execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver the Certificates that the Holder making the exchange is entitled to receive. All Certificates issued upon any registration of transfer or exchange of a Certificate shall evidence the ownership of the same number of Normal Common Equity Units or Stripped Common Equity Units, as the case may be, and be entitled to the same benefits and subject to the same obligations under this Agreement as the Normal Common Equity Units or Stripped Common Equity Units, as the case may be, evidenced by the Certificate surrendered upon such registration of transfer or exchange. Every Certificate presented or surrendered for registration of transfer or exchange shall (if so required by the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Stock Purchase Contract Agent duly executed, by the Holder thereof or its attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Company and the Security Registrar may require payment from the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates, other than any exchanges pursuant to Section 3.04, Section 3.06 and Section 8.05 not involving any transfer. Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall not be obligated to authenticate, execute on behalf of the Holder and deliver any Certificate in exchange for any other Certificate presented or surrendered for registration of transfer or for exchange on or after the Business Day immediately preceding the earliest to occur of any Early Settlement Date with respect to the Common Equity Units evidenced by such Certificate, any Cash Merger Early Settlement Date with respect to the Common Equity Units evidenced by such Certificate, the Subsequent Stock Purchase Date or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Stock Purchase Contract Agent shall: (i) if the Initial Stock Purchase Date or the Subsequent Stock Purchase Date (including upon any Cash Settlement) or an Early Settlement Date or a Cash Merger Early Settlement Date with respect to such other Certificate has occurred, deliver to such Holder the shares of Common Stock issuable in respect of the Stock Purchase Contracts forming a part of the Common Equity Units evidenced by such other Certificate; 24 (ii) if a Termination Event shall have occurred prior to the Initial Stock Purchase Date, transfer the Series A Trust Preferred Securities or the Treasury Securities pledged in lieu thereof, as the case may be, evidenced thereby, to such Holder, in each case subject to the applicable conditions and in accordance with the applicable provisions of Section 3.15 and Article V hereof; or (iii) if a Termination Event shall have occurred prior to the Subsequent Stock Purchase Date, transfer the Series B Trust Preferred Securities or the Treasury Securities pledged in lieu thereof, as the case may be, evidenced thereby, to such Holder, in each case subject to the applicable conditions and in accordance with the applicable provisions of Section 3.15 and Article V hereof. Section 3.06 Book-Entry Interests. The Certificates, on original issuance, will be issued in the form of one or more fully registered Global Certificates, to be delivered to the Depositary or its custodian by, or on behalf of, the Company. The Company hereby designates DTC as the initial Depositary. Such Global Certificates shall initially be registered on the books of the Security Registrar in the name of Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive a definitive Certificate representing such Beneficial Owner's interest in such Global Certificate, except as provided in Section 3.09. The Stock Purchase Contract Agent shall enter into an agreement with the Depositary if so requested by the Company. Unless and until definitive, fully registered Certificates have been issued to Beneficial Owners pursuant to Section 3.09: (i) the provisions of this Section 3.06 shall be in full force and effect; (ii) the Company, the Stock Purchase Contract Agent and the Security Registrar shall be entitled to deal with the Depositary for all purposes of this Agreement (including, without limitation, making Contract Payments and receiving approvals, votes or consents hereunder) as the Holder of the Common Equity Units and the sole holder of the Global Certificates and shall have no obligation to the Beneficial Owners; provided that any Beneficial Owner may directly enforce against the Company, without the involvement of the Depositary or any other Person, its right to receive definitive Certificates pursuant to Section 3.09; (iii) to the extent that the provisions of this Section 3.06 conflict with any other provisions of this Agreement, the provisions of this Section 3.06 shall control; and (iv) the rights of the Beneficial Owners shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such Beneficial Owners and the Depositary or the Depositary Participants; provided that any Beneficial Owner may directly enforce against the Company, without the involvement of the Depositary or any other Person, its right to receive definitive Certificates pursuant to Section 3.09. Transfers of securities evidenced by Global Certificates shall be made through the facilities of the Depositary, and any cancellation of, or increase or decrease in the number of, such securities (including the creation of Stripped Common Equity Units and the recreation of Normal Common Equity Units pursuant to Section 3.13 and Section 3.14 respectively) shall be accomplished by making appropriate annotations on the Schedule of Increases and Decreases for such Global Certificate. Section 3.07 Notices to Holders. Whenever a notice or other communication to the Holders is required to be given under this Agreement, the Company, the Company's agent or the Stock Purchase Contract Agent, as the case may be, shall give such notices and communications to the Holders and, with respect to any Common Equity Units registered in the name of the Depositary or the nominee of the Depositary, the Company, the Company's agent or the Stock Purchase Contract Agent, as the case may be, shall, except as set forth herein, have no obligations to the Beneficial Owners. Section 3.08 Appointment of Successor Depositary. If the Depositary elects to discontinue its services as securities depositary with respect to the Common Equity Units, the Company may, in its sole discretion, appoint a successor Depositary with respect to the Common Equity Units. Section 3.09 Definitive Certificates. If: (i) the Depositary notifies the Company that it is unwilling or unable to continue its services as securities depositary with respect to the Common Equity Units and no successor Depositary has been appointed pursuant to Section 3.08 within 90 days after such notice; or (ii) the Depositary ceases to be a "clearing agency" registered under Section 17A of the Exchange Act when the Depositary is required to be so registered to act as the Depositary and so notifies the Company, and no successor Depositary has been appointed pursuant to Section 3.08 within 90 days after such notice; or (iii) any event of default has occurred and is continuing under either series of Debentures or this Agreement; or (iv) the Company determines in its sole discretion that the Global Certificates shall be exchangeable for definitive Certificates, then (x) definitive Certificates may be prepared by the Company with respect to such Common Equity Units and delivered to the Stock Purchase Contract Agent and (y) upon surrender of the Global Certificates representing the Common Equity Units by the Depositary, accompanied by registration instructions, the Company shall cause definitive Certificates to be delivered to Beneficial Owners in accordance with the instructions of the Depositary. The Company and the Stock Purchase Contract Agent shall not be liable for any delay in delivery of such instructions and may conclusively rely on and shall be authorized and protected in relying on, such instructions. Each definitive Certificate so delivered shall evidence Common Equity Units of the same kind and tenor as the Global Certificate so surrendered in respect thereof. 26 Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates. If any mutilated Certificate is surrendered to the Stock Purchase Contract Agent, the Company shall execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, a new Certificate, evidencing the same number of Normal Common Equity Units or Stripped Common Equity Units, as the case may be, and bearing a Certificate number not contemporaneously outstanding. If there shall be delivered to the Company and the Stock Purchase Contract Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Certificate, and (ii) such security or indemnity as may be required by them to hold each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Stock Purchase Contract Agent that such Certificate has been acquired by a protected purchaser, the Company shall execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new Certificate, evidencing the same number of Normal Common Equity Units or Stripped Common Equity Units, as the case may be, and bearing a Certificate number not contemporaneously outstanding. Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract Agent shall not be obligated to authenticate, execute on behalf of the Holder, and deliver to the Holder, a Certificate on or after the Business Day immediately preceding the earliest of any Early Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate, any Cash Merger Early Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate, the Initial Stock Purchase Date, the Subsequent Stock Purchase Date or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Stock Purchase Contract Agent shall: (i) if the Initial Stock Purchase Date, the Subsequent Stock Purchase Date or Early Settlement Date or Cash Merger Early Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate has occurred, deliver to such Holder the shares of Common Stock issuable in respect of the Stock Purchase Contracts forming a part of the Common Equity Units evidenced by such Certificate; or (ii) if a Cash Settlement with respect to such lost, stolen, destroyed or mutilated Certificate or if a Termination Event shall have occurred prior to the Initial Stock Purchase Date or prior to the Subsequent Stock Purchase Date, transfer the Series A Trust Preferred Securities and the Series B Trust Preferred Securities (in the case of a Termination Event occurring prior to the Initial Stock Purchase Date) or the Series B Trust Preferred Securities (in the case of a Termination Event occurring prior to the Subsequent Stock Purchase Date) or the Treasury Securities pledged in substitution for the applicable Trust Preferred Securities, as the case may be, evidenced thereby, in each case subject to the applicable conditions and in accordance with the applicable provisions of Section 3.15 and Article V hereof. 27 Upon the issuance of any new Certificate under this Section, the Company and the Stock Purchase Contract Agent may require the payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other fees and expenses (including, without limitation, the fees and expenses of the Stock Purchase Contract Agent) connected therewith. Every new Certificate issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Certificate shall constitute an original additional contractual obligation of the Company and of the Holder in respect of the Common Equity Units evidenced thereby, whether or not the destroyed, lost or stolen Certificate (and the Common Equity Units evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits and be subject to all the obligations of this Agreement equally and proportionately with any and all other Certificates delivered hereunder. The provisions of this Section are exclusive and shall preclude, to the extent lawful, all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates. Section 3.11 Persons Deemed Owners. Prior to due presentment of a Certificate for registration of transfer, the Company and the Stock Purchase Contract Agent, and any agent of the Company, the Security Registrar or the Stock Purchase Contract Agent, may treat the Person in whose name such Certificate is registered as the owner of the Common Equity Units evidenced thereby for purposes of (subject to any applicable record date) any payment or distribution on the Trust Preferred Securities, payment of Contract Payments and performance of the Stock Purchase Contracts and for all other purposes whatsoever in connection with such Common Equity Units, whether or not such payment, distribution, or performance shall be overdue and notwithstanding any notice to the contrary, and none of the Company, the Security Registrar or the Stock Purchase Contract Agent, nor any agent of the Company, the Security Registrar or the Stock Purchase Contract Agent, shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Certificate, nothing contained herein shall prevent the Company, the Security Registrar, the Stock Purchase Contract Agent or any agent of the Company, the Security Registrar or the Stock Purchase Contract Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary (or its nominee), as a Holder, with respect to such Global Certificate, or impair, as between such Depositary and the related Beneficial Owner, the operation of customary practices governing the exercise of rights of the Depositary (or its nominee) as Holder of such Global Certificate. None of the Company, the Security Registrar, the Stock Purchase Contract Agent or any agent of the Company, the Security Registrar or the Stock Purchase Contract Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Certificate or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. 28 Section 3.12 Cancellation. All Certificates surrendered for delivery of shares of Common Stock on or after the Initial Stock Purchase Date or the Subsequent Stock Purchase Date, as applicable, or upon the transfer of Trust Preferred Securities or for delivery of Trust Preferred Securities or Treasury Securities, as the case may be, after the occurrence of a Termination Event or pursuant to a Cash Settlement, an Early Settlement or a Cash Merger Early Settlement, or upon the registration of transfer or exchange of a Common Equity Unit, or a Collateral Substitution or the recreation of a Normal Common Equity Unit shall, if surrendered to any Person other than the Stock Purchase Contract Agent, be delivered to the Stock Purchase Contract Agent along with appropriate written instructions from the Company regarding the cancellation thereof and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the Stock Purchase Contract Agent for cancellation any Certificates previously authenticated, executed and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Certificates so delivered shall, upon an Issuer Order, be promptly cancelled by the Stock Purchase Contract Agent. No Certificates shall be authenticated, executed on behalf of the Holder and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section, except as expressly permitted by this Agreement. All cancelled Certificates held by the Stock Purchase Contract Agent shall be disposed of in accordance with its customary practices. If the Company or any Affiliate of the Company shall acquire any Certificate, such acquisition shall not operate as a cancellation of such Certificate unless and until such Certificate is delivered to the Stock Purchase Contract Agent cancelled or for cancellation. Section 3.13 Creation of Stripped Common Equity Units by Substitution of Treasury Securities. Subject to the conditions set forth in this Agreement, a Holder may, at any time from and after the date of this Agreement and until 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding any Remarketing Settlement Date, effect a Collateral Substitution and separate the Pledged Trust Preferred Securities from the related Stock Purchase Contracts in respect of all or a portion of such Holder's Normal Common Equity Units by substituting for such Pledged Trust Preferred Securities of each series, Treasury Securities or portions thereof maturing on the corresponding Applicable Remarketing Settlement Date in an aggregate principal amount at maturity equal to the aggregate liquidation amount of such Pledged Trust Preferred Securities; provided that Holders may make Collateral Substitutions only in integral multiples of 80 Normal Common Equity Units. To effect such substitution, the Holder must: (1) if the substitution is made prior to the Initial Stock Purchase Date, deposit with the Collateral Agent a Treasury Security that has a principal amount payable on the Applicable Remarketing Settlement Date for the Series A Trust Preferred Securities of $1,000; (2) deposit with the Collateral Agent a Treasury Security that has a principal amount payable on the Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities of $1,000; and 29 (3) transfer 80 Normal Common Equity Units to the Stock Purchase Contract Agent accompanied by a notice to the Stock Purchase Contract Agent, substantially in the form of Exhibit C hereto, (i) stating that the Holder has deposited the relevant amount of Treasury Securities with the Securities Intermediary for credit to the Collateral Account and (ii) instructing the Stock Purchase Contract Agent to instruct the Collateral Agent to release the Pledged Trust Preferred Securities underlying such Normal Common Equity Units, whereupon the Stock Purchase Contract Agent shall promptly provide an instruction to such effect to the Collateral Agent, substantially in the form of Exhibit A to the Pledge Agreement. Upon receipt of the Treasury Securities described in clauses (1) and (2) above and the instruction described in clause (3) above, in accordance with the terms of the Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to effect the release of such Pledged Trust Preferred Securities from the Pledge and the transfer of such Trust Preferred Securities to the Stock Purchase Contract Agent on behalf of the Holder free and clear of the Company's security interest therein. Upon receipt of such Trust Preferred Securities, the Stock Purchase Contract Agent shall promptly: (ii) cancel the related Normal Common Equity Units; (iii) transfer the Series A Trust Preferred Securities (if prior to the Initial Stock Settlement Date) and Series B Trust Preferred Securities to the Holder (such Trust Preferred Securities shall be tradeable as a separate security, independent of the resulting Stripped Common Equity Units); and (iv) authenticate, execute on behalf of such Holder and deliver Stripped Common Equity Units in book-entry form, or if applicable, in the form of a Stripped Common Equity Unit Certificate executed by the Company in accordance with Section 3.03 evidencing the same number of Stock Purchase Contracts as were evidenced by the cancelled Normal Common Equity Units. Holders who elect to separate the Trust Preferred Securities from the related Stock Purchase Contracts and to substitute Treasury Securities for such Trust Preferred Securities shall be responsible for any fees or expenses (including, without limitation, fees and expenses payable to the Collateral Agent for its services as Collateral Agent) in respect of the substitution, and neither the Company nor the Stock Purchase Contract Agent shall be responsible for any such fees or expenses. In the event a Holder making a Collateral Substitution pursuant to this Section 3.13 fails to effect a book-entry transfer of the Normal Common Equity Units or fails to deliver Normal Common Equity Unit Certificates to the Stock Purchase Contract Agent after depositing Treasury Securities with the Securities Intermediary, any distributions on the Trust Preferred Securities constituting a part of such Normal Common Equity Units shall be held in the name of the Stock Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such Normal Common Equity Units are so transferred or the Normal Common Equity Unit Certificate is so delivered, as the case may be, or until such Holder provides evidence 30 satisfactory to the Company and the Stock Purchase Contract Agent that such Normal Common Equity Unit Certificate has been destroyed, lost or stolen, together with any indemnity that may be required by the Stock Purchase Contract Agent and the Company. Except as described in Section 5.02 or in this Section 3.13 or in connection with a Cash Settlement, an Early Settlement, a Cash Merger Early Settlement or a Termination Event, for so long as the Stock Purchase Contract underlying a Normal Common Equity Unit remains in effect, such Normal Common Equity Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder in respect of the Trust Preferred Securities and the Stock Purchase Contract comprising such Normal Common Equity Unit may be acquired, and may be transferred and exchanged, only as a Normal Common Equity Unit. Section 3.14 Recreation of Normal Common Equity Units Subject to the conditions set forth in this Agreement, a Holder of Stripped Common Equity Units may recreate Normal Common Equity Units (i) at any time until 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding any Remarketing Settlement Date; provided that Holders of Stripped Common Equity Units may only recreate Normal Common Equity Units in integral multiples of 80 Stripped Common Equity Units. To recreate Normal Common Equity Units, the Holder must: (1) if the substitution is made prior to the Initial Stock Purchase Date, transfer to the Securities Intermediary Series A Trust Preferred Securities having an aggregate liquidation amount equal to the aggregate principal amount at stated maturity of the corresponding Pledged Treasury Securities comprising part of the Stripped Common Equity Units; (2) transfer to the Securities Intermediary Series B Trust Preferred Securities having an aggregate liquidation amount equal to the aggregate principal amount at stated maturity of the corresponding Pledged Treasury Securities comprising part of the Stripped Common Equity Units; and (3) transfer the related Stripped Common Equity Units to the Stock Purchase Contract Agent accompanied by a notice to the Stock Purchase Contract Agent, substantially in the form of Exhibit C hereto, (i) stating that the Holder has transferred the relevant amount of Series A Trust Preferred Securities (if the substitution is made prior to the Initial Stock Purchase Date) and Series B Trust Preferred Securities to the Securities Intermediary for deposit in the Collateral Account and (ii) instructing the Stock Purchase Contract Agent to instruct the Collateral Agent to release the Pledged Treasury Securities underlying such Stripped Common Equity Units, whereupon the Stock Purchase Contract Agent shall promptly provide an instruction to such effect to the Collateral Agent, substantially in the form of Exhibit C to the Pledge Agreement. Upon receipt of the Trust Preferred Securities described in clauses (1) and (2) above and the instruction described in clause (3) above, in accordance with the terms of the Pledge Agreement, 31 the Collateral Agent will cause the Securities Intermediary to effect the release of the Pledged Treasury Securities having a corresponding aggregate principal amount at maturity from the Pledge and the transfer thereof to the Stock Purchase Contract Agent on behalf of the Holder free and clear of the Company's security interest therein. Upon receipt of such Treasury Securities, the Stock Purchase Contract Agent shall promptly: (i) cancel the related Stripped Common Equity Units; (ii) transfer the Treasury Securities to the Holder; and (iii) authenticate, execute on behalf of such Holder and deliver Normal Common Equity Units in book-entry form or, if applicable, in the form of a Normal Common Equity Unit Certificate executed by the Company in accordance with Section 3.03 evidencing the same number of Stock Purchase Contracts as were evidenced by the cancelled Stripped Common Equity Units. Holders who elect to recreate Normal Common Equity Units shall be responsible for any fees or expenses (including, without limitation, fees and expenses payable to the Collateral Agent for its services as Collateral Agent) in respect of the recreation, and neither the Company nor the Stock Purchase Contract Agent shall be responsible for any such fees or expenses. Except as provided in Section 5.02 or in this Section 3.14 or in connection with a Cash Settlement, an Early Settlement, a Cash Merger Early Settlement or a Termination Event, for so long as the Stock Purchase Contract underlying a Stripped Common Equity Unit remains in effect, such Stripped Common Equity Unit shall not be separable into its constituent parts and the rights and obligations of the Holder of such Stripped Common Equity Unit in respect of the 1/80 of a Treasury Security and the Stock Purchase Contract comprising such Stripped Common Equity Unit may be acquired, and may be transferred and exchanged, only as a Stripped Common Equity Unit. Section 3.15 Transfer of Collateral upon Occurrence of Termination Event. Upon the occurrence of a Termination Event and the transfer to the Stock Purchase Contract Agent of the Trust Preferred Securities or the Treasury Securities, as the case may be, underlying the Normal Common Equity Units and the Stripped Common Equity Units, as the case may be, pursuant to the terms of the Pledge Agreement, the Stock Purchase Contract Agent shall request transfer instructions with respect to such Trust Preferred Securities or Treasury Securities, as the case may be, from each Holder by written request, substantially in the form of Exhibit D hereto, mailed to such Holder at its address as it appears in the Security Register. Upon book-entry transfer of the Normal Common Equity Units or the Stripped Common Equity Units or delivery of a Normal Common Equity Unit Certificate or Stripped Common Equity Unit Certificate to the Stock Purchase Contract Agent with such transfer instructions, the Stock Purchase Contract Agent shall transfer the Trust Preferred Securities or Treasury Securities, as the case may be, underlying such Normal Common Equity Units or Stripped Common Equity Units, as the case may be, to such Holder by book-entry transfer, or other appropriate procedures, in accordance with such instructions. In the event a Holder of Normal Common Equity Units or Stripped Common Equity Units fails to effect such transfer or delivery, 32 the Trust Preferred Securities or Treasury Securities, as the case may be, underlying such Normal Common Equity Units or Stripped Common Equity Units, as the case may be, and any distributions thereon, shall be held in the name of the Stock Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until the earlier to occur of: (i) the transfer of such Normal Common Equity Units or Stripped Common Equity Units or surrender of the Normal Common Equity Unit Certificate or Stripped Common Equity Unit Certificate or the receipt by the Company and the Stock Purchase Contract Agent from such Holder of satisfactory evidence that such Normal Common Equity Unit Certificate or Stripped Common Equity Unit Certificate has been destroyed, lost or stolen, together with any indemnity that may be required by the Stock Purchase Contract Agent and the Company; and (ii) the expiration of the time period specified in the abandoned property laws of the relevant State in which the Stock Purchase Contract Agent holds such property. Section 3.16 No Consent to Assumption. Each Holder of a Common Equity Unit, by acceptance thereof, shall be deemed expressly to have withheld any consent to the assumption under Section 365 of the Bankruptcy Code or otherwise, of the Stock Purchase Contract by the Company or its trustee, receiver, liquidator or a person or entity performing similar functions in the event that the Company becomes the debtor under the Bankruptcy Code or subject to other similar state or Federal law providing for reorganization or liquidation. ARTICLE IV THE TRUST PREFERRED SECURITIES Section 4.01 Distributions; Rights to Distributions Preserved. Any payment on any Trust Preferred Security which is paid on any Payment Date shall, subject to receipt thereof by the Stock Purchase Contract Agent from the Company (in the case of a Trust Preferred Security that is held in the name of the Stock Purchase Contract Agent) or from the Collateral Agent as provided by the terms of the Pledge Agreement (in the case of a Trust Preferred Security that is held in the name of the Collateral Agent), be paid by the Stock Purchase Contract Agent to the Person in whose name the Normal Common Equity Unit Certificate (or one or more Predecessor Normal Common Equity Unit Certificates) of which such Trust Preferred Securities form a part is registered at the close of business on the Record Date for such Payment Date. Each Normal Common Equity Unit Certificate evidencing the ownership interest in the underlying Trust Preferred Securities delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of any other Normal Common Equity Unit Certificate shall carry the right to accrued and unpaid interest or distributions, and to accrue distributions, which were carried by the Trust Preferred Securities underlying such other Normal Common Equity Unit Certificate. 33 In the case of any Normal Common Equity Units with respect to which (A) a Cash Settlement of the underlying Stock Purchase Contract is properly effected pursuant to Section 5.02(b) or Section 5.02(e) hereof, (B) an Early Settlement of the underlying Stock Purchase Contract is properly effected pursuant to Section 5.07 hereof, (C) a Cash Merger Early Settlement of the underlying Stock Purchase Contract is properly effected pursuant to Section 5.04(b)(ii) hereof, (D) a Collateral Substitution is properly effected pursuant to Section 3.13, or (E) a Successful Remarketing occurs with respect to the Trust Preferred Securities that are part of such Normal Common Equity Units, in each case on a date that is after any Record Date and prior to or on the next succeeding Payment Date, distributions on the Trust Preferred Securities underlying such Normal Common Equity Units otherwise payable on such Payment Date shall be payable on such Payment Date notwithstanding such Cash Settlement, Early Settlement, Cash Merger Early Settlement, Collateral Substitution or Successful Remarketing, and such payment or distributions shall, subject to receipt thereof by the Stock Purchase Contract Agent, be payable to the Person in whose name the Normal Common Equity Unit Certificate (or one or more Predecessor Normal Common Equity Unit Certificates) was registered at the close of business on the Record Date. Except as otherwise expressly provided in the immediately preceding paragraph, in the case of any Normal Common Equity Units with respect to which Cash Settlement, Early Settlement or Cash Merger Early Settlement of the underlying Stock Purchase Contract is properly effected, or with respect to which a Collateral Substitution has been effected, payments on the related Trust Preferred Securities that would otherwise be payable or made after the Initial Stock Purchase Date (for the Series A Trust Preferred Securities), the Subsequent Stock Purchase Date (for the Series B Trust Preferred Securities), Early Settlement Date, Cash Merger Early Settlement Date or the date of the Collateral Substitution, as the case may be, shall not be payable hereunder to the Holder of such Normal Common Equity Units; provided, however, that to the extent that such Holder continues to hold Separate Trust Preferred Securities that formerly comprised a part of such Holder's Normal Common Equity Units, such Holder shall be entitled to receive distributions on such Separate Trust Preferred Securities. Section 4.02 Notice and Voting. Under the terms of the Pledge Agreement, the Stock Purchase Contract Agent will be entitled to exercise the voting and any other consensual rights pertaining to the Pledged Trust Preferred Securities, but only to the extent instructed in writing by the Holders as described below. Upon receipt of notice of any meeting at which holders of any series of Trust Preferred Securities are entitled to vote or upon any solicitation of consents, waivers or proxies of holders of any series of Trust Preferred Securities, the Stock Purchase Contract Agent shall, as soon as practicable thereafter, mail, first class, postage pre-paid, to the Holders of Normal Common Equity Units a notice: (i) containing such information as is contained in the notice or solicitation; (ii) stating that each Holder on the record date set by the Stock Purchase Contract Agent therefor (which, to the extent possible, shall be the same date as the record date for determining the holders of the applicable series of Trust Preferred Securities, as the case may be, entitled to vote) shall be entitled to instruct the Stock 34 Purchase Contract Agent as to the exercise of the voting rights pertaining to such Trust Preferred Securities underlying their Normal Common Equity Units; and (iii) stating the manner in which such instructions may be given. Upon the written request of the Holders of Normal Common Equity Units on such record date received by the Stock Purchase Contract Agent at least six days prior to such meeting, the Stock Purchase Contract Agent shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of Trust Preferred Securities, as the case may be, as to which any particular voting instructions are received. In the absence of specific instructions from the Holder of a Normal Common Equity Unit, the Stock Purchase Contract Agent shall abstain from voting the Trust Preferred Securities underlying such Normal Common Equity Unit. The Company hereby agrees, if applicable, to solicit Holders of Normal Common Equity Units to timely instruct the Stock Purchase Contract Agent in order to enable the Stock Purchase Contract Agent to vote such Trust Preferred Securities. The Holders of Normal Common Equity Units and Stripped Common Equity Units shall have no voting or other rights in respect of Common Stock. ARTICLE V THE PURCHASE CONTRACTS Section 5.01 Purchase of Shares of Common Stock. (a) Each Stock Purchase Contract shall obligate the Holder of the related Common Equity Unit to purchase, and the Company to sell, on each of the Initial Stock Purchase Date and the Subsequent Stock Purchase Date at a price equal to $12.50 (the "Purchase Price"), a number of newly issued or treasury shares of Common Stock per Common Equity Unit (subject to Section 5.09) equal to the applicable Settlement Rate (as defined below) unless an Early Settlement, a Cash Merger Early Settlement or a Termination Event with respect to the Common Equity Units of which such Stock Purchase Contract is a part shall have occurred. The "Settlement Rate" with respect to each Stock Purchase Contract, shall be an amount equal to the sum of the "Daily Amounts" (as defined below) calculated for each Determination Date during the Trading Day Period. The "Daily Amount" for each Determination Date in the Trading Day Period, subject to any then applicable anti-dilution adjustments, is defined as: (i) for each Determination Date on which the Closing Price (as defined below) for the Common Stock is less than or equal to the Reference Price (as defined below), a fraction of one share of Common Stock per Common Equity Unit equal to: 1/20 times $12.50 divided by the Reference Price (the "Maximum Daily Settlement Rate"), (ii) for each Determination Date on which the Closing Price for the Common Stock is greater than the Reference Price but less than the Threshold Appreciation Price (as defined below), a fraction of one share of Common Stock per Common Equity Unit equal to: 35 1/20 times $12.50 divided by the Closing Price, and (iii) for each Determination Date on which the Closing Price for the Common Stock is greater than or equal to the Threshold Appreciation Price, a fraction of one share of Common Stock per Common Equity Unit equal to: 1/20 times $12.50 divided by the Threshold Appreciation Price (the "Minimum Daily Settlement Rate" and, together with the Maximum Daily Settlement Rate, the "Fixed Daily Settlement Rates"), in each case subject to adjustment as provided in Section 5.04 (and in each case rounded upward or downward to the nearest 1/10,000th of a share). The Company shall give notice to the Holders if a Market Disruption Event occurs during a day that would otherwise constitute one of the 20 Trading Days in the Trading Day Period for determining the Daily Amounts. If the 20 Trading Days in the Trading Day Period have not occurred prior to the third Business Day immediately prior to the applicable Stock Purchase Date, all remaining Trading Days in the Trading Day Period will be determined to occur on that third Business Day and the Closing Price for each of the remaining Trading Days in the Trading Day Period will be the Closing Price per share of the Common Stock on such third Business Day or if such Business Day is not a Trading Day, the Closing Price as determined in its reasonable discretion by a nationally recognized independent investment banking firm retained by the Company for this purpose. The "Closing Price" of the Common Stock on any Determination Date means: (i) the closing sale price as of the close of the principal trading session (or, if no closing price is reported, the last reported sale price) on the New York Stock Exchange, Inc. (the "NYSE") on that date; or (ii) if the Common Stock is not listed for trading on the NYSE on any such date, the closing sale price (or, if no closing price is reported, the last reported sale price) per share as reported in the composite transactions for the principal United States national or regional securities exchange on which the Common Stock is so listed; or (iii) if the Common Stock is not so listed on a United States national or regional securities exchange, the last closing sale price per share as reported by the Nasdaq Stock Market; or (iv) if the Common Stock is not so reported by the Nasdaq Stock Market, the last quoted bid price for the Common Stock in the over-the-counter market as reported by PinkSheets LLC (formerly known as the National Quotation Bureau) or similar organization; or (v) if the bid price referred to in clause (iv) is not available, the market value of the Common Stock on such date as determined by a nationally recognized independent 36 investment banking firm retained by the Company for purposes of determining the Closing Price. "Determination Date" means any Trading Day in the Trading Day Period on which a portion of the Common Stock deliverable in respect of the applicable Stock Purchase Contract is determined herein. A "Market Disruption Event" means any of the following events that the Company, in its reasonable discretion, determines has occurred and is material: (i) any suspension of, or limitation imposed on, trading by any exchange or quotation system on which the closing price is determined pursuant to the definition of the Trading Day (a "Relevant Exchange") during the one-hour period prior to the close of trading for the regular trading session on the Relevant Exchange and whether by reason of movements in price exceeding limits permitted by the Relevant Exchange, or otherwise: (1) relating to Common Stock; or (2) in futures or options contracts relating to the Common Stock on the Relevant Exchange; (ii) any event (other than an event described in clause (iii)) that disrupts or impairs (as determined by the Company in its reasonable discretion) the ability of market participants during the one-hour period prior to the close of trading for the regular trading session on the Relevant Exchange in general: (1) to effect transactions in, or obtain market values for, the Common Stock on the Relevant Exchange; or (2) to effect transactions in, or obtain market values for, futures or options contracts relating to the Common Stock on the Relevant Exchange; or (iii) the failure to open of the Relevant Exchange on which futures or options contracts relating to the Common Stock, are traded or the closure of such exchange prior to its respective scheduled closing time for the regular trading session on such day (without regard to after hours or any other trading outside of the regular trading session hours) unless such earlier closing time is announced by such exchange at least one hour prior to the earlier of: (1) the actual closing time for the regular trading session on such day, and (2) the submission deadline for orders to be entered into such exchange for execution at the actual closing time on such day. A "Trading Day" means a Business Day on which the Relevant Exchange is scheduled to be open for business and on which there has not occurred or does not exist a Market Disruption Event. 37 "Trading Day Period" means the 20 consecutive Trading Days beginning on July 9, 2008 for the Initial Stock Purchase Date, and the 20 consecutive Trading Days beginning on January 7, 2009 for the Subsequent Stock Purchase Date. (b) Each Holder of a Normal Common Equity Unit or a Stripped Common Equity Unit, by its acceptance of such Common Equity Unit will be deemed to have: (i) duly appointed the Stock Purchase Contract Agent to enter into and perform the related Stock Purchase Contract and the Pledge Agreement on its behalf and in its name as its attorney-in-fact (including, without limitation, the execution of Certificates on behalf of such Holder); (ii) irrevocably agreed to be bound by the terms and provisions of such Stock Purchase Contract and the Pledge Agreement; (iii) covenanted and agreed to perform its obligations under such Stock Purchase Contract for so long as such Holder remains a Holder of a Normal Common Equity Unit or a Stripped Common Equity Unit; (iv) irrevocably authorized the Stock Purchase Contract Agent to enter into and perform this Agreement and the Pledge Agreement on its behalf and in its name as its attorney-in-fact; (v) consents to, and agrees to be bound by, the Pledge of such Holder's right, title and interest in and to the Collateral Account, including the Trust Preferred Securities and the Treasury Securities pursuant to the Pledge Agreement; (vi) for United States federal, state and local income and franchise tax purposes, agrees to take the positions set forth in Section 10.07(b); (vii) irrevocably directed the Stock Purchase Contract Agent to execute the Remarketing Agreement at the direction of the Company, without the receipt of any opinion or certificate, provided that upon a Termination Event, the rights of the Holder of such Common Equity Units under the Stock Purchase Contract may be enforced without regard to any other rights or obligations. (c) Each Holder of a Normal Common Equity Unit or a Stripped Common Equity Unit, by its acceptance thereof, shall be deemed to have further covenanted and agreed that to the extent and in the manner provided in Section 5.02 hereof and the provisions of the Pledge Agreement, but subject to the terms thereof, Proceeds of the Trust Preferred Securities or the Treasury Securities, as applicable, on the Stock Purchase Date, shall be paid by the Collateral Agent to the Company in satisfaction of such Holder's obligations under such Stock Purchase Contract and such Holder shall acquire no right, title or interest in such Proceeds except that any proceeds of the Remarketing in excess of the aggregate Purchase Price applicable to the related Normal Common Equity Units plus the portion of the Remarketing Fee attributable to such 38 Pledged Trust Preferred Securities will be remitted to the Stock Purchase Contract Agent for payment to the Holders of the related Normal Common Equity Units. (d) Upon registration of transfer of a Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the terms of this Agreement, the Stock Purchase Contracts underlying such Certificate and the Pledge Agreement and the transferor shall be released from the obligations under this Agreement, the Stock Purchase Contracts underlying the Certificate so transferred and the Pledge Agreement. The Company covenants and agrees, and each Holder of a Certificate, by its acceptance thereof, likewise shall be deemed to have covenanted and agreed, to be bound by the provisions of this paragraph. Section 5.02 Remarketing; Payment of Purchase Price. (a) (i) The Company shall conduct a Remarketing of each series of Trust Preferred Securities in accordance with Article X of the relevant Trust Agreement and the Remarketing Agreement. (ii) With respect to any Trust Preferred Securities which constitute part of Normal Common Equity Units which are subject to the Remarketing with respect to the Third Remarketing Settlement Date for each series of the Trust Preferred Securities, the Collateral Agent for the benefit of the Company reserves all of its rights as a secured party with respect thereto and, subject to applicable law and Section 5.02(c) below, may, among other things, (A) retain such Trust Preferred Securities in full satisfaction of the Holders' obligations under the Stock Purchase Contracts or (B) sell such Trust Preferred Securities in one or more public or private sales or otherwise. (iii) Prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Remarketing Date Holders of Separate Trust Preferred Securities may elect to have their Separate Trust Preferred Securities remarketed under the Remarketing Agreement by delivering their Separate Trust Preferred Securities, along with a notice of such election, substantially in the form of Exhibit F to the Pledge Agreement, to the Custodial Agent. The Custodial Agent shall hold Separate Trust Preferred Securities in an account separate from the Collateral Account in which the Pledged Trust Preferred Securities (as defined in the Pledge Agreement) shall be held. Holders of Separate Trust Preferred Securities electing to have their Separate Trust Preferred Securities remarketed will also have the right to withdraw that election by written notice to the Custodial Agent, substantially in the form of Exhibit G to the Pledge Agreement, by 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Remarketing Date, upon which notice the Custodial Agent shall return such Separate Trust Preferred Securities to such Holder. Promptly after 11:00 a.m. on the Business Day immediately preceding the applicable Remarketing Date, the Custodial Agent shall notify the Remarketing Agent of the aggregate liquidation amount of the Separate Trust Preferred Securities to be remarketed. After such time, such election shall become an irrevocable election to have such Separate Trust Preferred Securities remarketed in such Remarketing. 39 (iv) The Stock Purchase Contract Agent shall give Holders of Common Equity Units, and the Company shall request that the Depositary or its nominee give Depositary Participants holding Common Equity Units and Separate Trust Preferred Securities, notice of a Remarketing at least 21 Business Days prior to the related Remarketing Date. Such notice will set forth the information required to be set forth in the notice pursuant to Section 10.4(a) of the relevant Trust Agreement. (b) (i) Unless an Early Settlement or a Cash Merger Early Settlement has occurred prior to the applicable Stock Purchase Date, each Holder of Normal Common Equity Units shall have the right to satisfy such Holder's obligations under the Stock Purchase Contract on such Stock Purchase Date in cash by notifying the Stock Purchase Contract Agent by use of a notice in substantially the form of Exhibit E hereto of its intention to pay in cash ("Cash Settlement") by 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Stock Purchase Date. Promptly following 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Stock Purchase Date, the Stock Purchase Contract Agent shall notify the Collateral Agent of the receipt of such notices from Holders intending to make a Cash Settlement by use of a notice in substantially the form of Exhibit F hereto. (ii) A Holder of a Normal Common Equity Unit who has so notified the Stock Purchase Contract Agent of its intention to effect a Cash Settlement shall pay the Purchase Price to the Collateral Agent for deposit in the Collateral Account by 5:00 p.m. (New York City time) on the fourth Business Day immediately preceding the applicable Stock Purchase Date, in lawful money of the United States by certified or cashiers' check or wire transfer of immediately available funds payable to or upon the order of the Securities Intermediary. Any cash so received shall be paid to the Company on the applicable Stock Purchase Date in partial settlement, in the case of the Initial Stock Purchase Date, and full settlement, in the case of the Subsequent Stock Purchase Date, of the Stock Purchase Contracts in accordance with the terms of this Agreement and the Pledge Agreement. (iii) If a Holder of a Normal Common Equity Unit does not notify the Stock Purchase Contract Agent of its intention to make a Cash Settlement in accordance with Section 5.02(b)(ii) above, or does notify the Stock Purchase Contract Agent in accordance with Section 5.02(b)(i) above but fails to make such payment as required by Section 5.02(b)(ii) above, such Holder shall be deemed to have consented to the disposition of the Pledged Trust Preferred Securities pursuant to the next applicable Remarketing. (iv) As soon as practicable after 5:00 p.m. (New York City time) on the fourth Business Day preceding the applicable Stock Purchase Date, the Collateral Agent, based on cash payments received by the Collateral Agent pursuant to Section 5.02(b)(ii) hereof, shall promptly notify the Stock Purchase Contract Agent of the aggregate liquidation amount of Trust Preferred Securities to be tendered for purchase in the Remarketing in a notice pursuant to the terms of the Pledge Agreement. 40 (v) In the event of a Failed Remarketing in respect of the Series A Trust Preferred Securities, (A) the Initial Stock Purchase Date shall be deferred for a quarterly period (except in the case of a Failed Remarketing with respect to the Third Remarketing Settlement Date for the Series A Trust Preferred Securities, in which case the Stock Purchase Date shall occur on the Third Remarketing Settlement Date for the Series A Trust Preferred Securities), and (B) if the Holders of Common Equity Units have delivered cash in order to effect Cash Settlement in accordance with Section 5.02(b)(ii) above, the Collateral Agent will promptly return the cash that it has received with respect to the Cash Settlement to the Stock Purchase Contract Agent for distribution to the applicable Holders of Normal Common Equity Units. (vi) In the event of a Failed Remarketing in respect of the Series B Trust Preferred Securities, (A) the Subsequent Stock Purchase Date shall be deferred for a quarterly period (except in the case of a Failed Remarketing with respect to the Third Remarketing Settlement Date for the Series B Trust Preferred Securities, in which case the Stock Purchase Date shall occur on the Third Remarketing Settlement Date for the Series B Trust Preferred Securities), and (B) if the Holders of Common Equity Units have delivered cash in order to effect Cash Settlement in accordance with Section 5.02(b)(ii) above, the Collateral Agent will promptly return the cash that it has received with respect to the Cash Settlement to the Stock Purchase Contract Agent for distribution to the applicable Holders of Normal Common Equity Units. (vii) In the event of a Successful Remarketing, if the Holders of Common Equity Units have delivered cash in order to effect Cash Settlement, the Collateral Agent will cause (i) the Securities Intermediary to effect the release from the Pledge such Holders related of Pledged Trust Preferred Securities of the series subject to the Successful Remarketing as to which such Holders have effected a Cash Settlement and (ii) the transfer of such Trust Preferred Securities to the Stock Purchase Contract Agent on behalf of the Holders free and clear of the Company's security interest therein. Upon receipt of such Trust Preferred Securities, the Stock Purchase Contract Agent shall promptly transfer the Trust Preferred Securities to the Holders. (c) The obligations of the Holders to pay the Purchase Price are non-recourse obligations and, except to the extent satisfied by Early Settlement, Cash Merger Early Settlement or Cash Settlement, are payable solely out of the Proceeds of any Collateral pledged to secure the obligations of the Holders, and in no event will Holders be liable for any deficiency between the Proceeds of the disposition of Collateral and the Purchase Price. (d) The Company shall not be obligated to issue any shares of Common Stock in respect of a Stock Purchase Contract or deliver any certificates thereof to the Holder of the related Common Equity Units unless the Company shall have received payment for the Common Stock to be purchased thereunder in the manner herein set forth. Section 5.03 Issuance of Shares of Common Stock. Unless a Termination Event, an Early Settlement or a Cash Merger Early Settlement shall have occurred, subject to Section 5.04(b)(ii), on the applicable Stock Purchase Date upon receipt 41 of the aggregate Purchase Price payable on all Outstanding Common Equity Units, the Company shall issue and deposit with the Stock Purchase Contract Agent, for the benefit of the Holders of the Outstanding Common Equity Units, by book entry transfer or in the form of one or more certificates representing newly issued or treasury shares of Common Stock registered in the name of the Stock Purchase Contract Agent (or its nominee) as custodian for the Holders (such certificates for shares of Common Stock, together with any dividends or distributions for which a record date and payment date for such dividend or distribution has occurred after the Stock Purchase Date, being hereinafter referred to as the "Stock Purchase Contract Settlement Fund") to which the Holders are entitled hereunder. Subject to the foregoing, upon surrender of a Certificate to the Stock Purchase Contract Agent on or after the Initial Stock Purchase Date, the Subsequent Stock Purchase Date, the Early Settlement Date or the Cash Merger Early Settlement Date, as the case may be, together with settlement instructions thereon duly completed and executed, the Holder of such Certificate shall be entitled to receive forthwith in exchange therefor, by book entry transfer or in the form of a certificate, that whole number of newly issued or treasury shares of Common Stock which such Holder is entitled to receive pursuant to the provisions of this Article V (after taking into account all Common Equity Units then held by such Holder), together with cash in lieu of fractional shares as provided in Section 5.09 and any dividends or distributions with respect to such shares constituting part of the Stock Purchase Contract Settlement Fund, but without any interest thereon, and the Certificate so surrendered shall forthwith be cancelled. Such shares shall be registered in the name of the Holder or the Holder's designee as specified in the settlement instructions provided by the Holder to the Stock Purchase Contract Agent. If any shares of Common Stock issued in respect of a Stock Purchase Contract are to be registered to a Person other than the Person in whose name the Certificate evidencing a Common Equity Unit of which such Stock Purchase Contract forms a part is registered (but excluding any Depositary or nominee thereof), no such registration shall be made unless the Person requesting such registration has paid any transfer and other taxes required by reason of such registration in a name other than that of the registered Holder of the Certificate evidencing such Stock Purchase Contract or has established to the satisfaction of the Company that such tax either has been paid or is not payable. Section 5.04 Adjustment of Fixed Daily Settlement Rates. The Fixed Daily Settlement Rates and the number of shares of Common Stock to be delivered upon an Early Settlement will be subject to adjustment, without duplication, under the following circumstances: (a) Adjustments for Dividends, Distributions, Stock Splits, etc. (i) Adjustment for Change in Capital Stock. If, after the date of this Agreement, the Company: (A) pays a dividend or makes another distribution on Common Stock to all holders of Common Stock payable exclusively in shares of Common Stock; (B) subdivides or splits the outstanding shares of Common Stock into a greater number of shares; or (C) combines the outstanding shares of Common Stock into a smaller number of shares, then the Fixed Daily Settlement Rates in effect immediately prior to such action shall be adjusted so that the Holder of the related Common Equity Units thereafter 42 settled may receive the number of shares of Common Stock which such Holder would have owned immediately following such action if such Holder had settled the Stock Purchase Contract immediately prior to such action. The adjustment shall become effective immediately after the record date in the case of a dividend, distribution or subdivision and immediately after the effective date in the case of a combination. (ii) Adjustment for Rights Issue. If, after the date of this Stock Purchase Contract Agreement, the Company distributes any rights, options or warrants, other than pursuant to any dividend reinvestment, share purchase or similar plans, to all holders of the Company's Common Stock entitling them to purchase or subscribe for, for a period expiring within 60 days from the date of issuance of the rights or warrants, shares of Common Stock at a price per share less than the Current Market Price as of the Time of Determination (as defined in Section 5.04(a) below) (except that no adjustment will be made if Holders of the Common Equity Units may participate in the distribution on a basis and with the notice that the Company's Board of Directors determines to be fair and appropriate), the Fixed Daily Settlement Rates shall be adjusted by multiplying them by a fraction: (A) the numerator of which is the sum of (1) the number of shares of Common Stock outstanding on the record date fixed for the applicable distribution plus (2) the total number of additional shares of Common Stock offered for subscription or purchase, and (B) the denominator of which is the sum of (1) the number of shares of Common Stock outstanding on the record date fixed for the distribution plus (2) the total number of shares of Common Stock that the aggregate offering price of the total number of shares offered for subscription or purchase would purchase at the Current Market Price. The adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive the rights, warrants or options to which this Section 5.04(b)(ii) applies. To the extent that such rights or warrants are not exercised prior to their expiration (and as a result no additional shares of Common Stock are delivered or issued pursuant to such rights or warrants), the Fixed Daily Settlement Rates shall be readjusted to the Fixed Daily Settlement Rates that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery or issuance of only the number of shares of Common Stock actually delivered or issued. (iii) Adjustments for Other Distributions. If, after the date of this Agreement, the Company dividends or distributes to all or substantially all holders of its Common Stock any of its debt, Capital Stock, securities or assets or any rights, warrants or options to purchase securities of the Company (including securities or cash, but excluding (1) distributions of Common Stock referred to in Section 5.04(a)(i)(A) and distributions of rights, warrants or options referred to in Section 5.04(a)(ii) and (2) dividends or 43 distributions that are paid exclusively in cash referred to in Section 5.04(a)(iv)) the Fixed Daily Settlement Rates shall be adjusted, subject to the provisions of the last paragraph of this Section 5.04(a)(iii), by multiplying them by a fraction: (A) the numerator of which is the Current Market Price of Common Stock, and (B) the denominator of which is the Current Market Price of Common Stock minus the fair market value of the portion of those assets distributed in respect of each share of Common Stock. In the event the Company distributes shares of Capital Stock of a subsidiary, the share components will be adjusted, if at all, based on the market value of the subsidiary stock so distributed relative to the market value of the Common Stock, as discussed below. The Board of Directors shall determine fair market values for the purposes of this Section 5.05(a)(iii), except that in respect of a dividend or other distribution of shares of Capital Stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit of the Company (a "Spin-off"), the fair market value of the securities to be distributed shall equal the average of the daily Closing Prices of those securities for the five consecutive Trading Days commencing on and including the sixth day of trading of those securities after the effectiveness of the Spin-off. In the event, however, that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Closing Price for the Common Stock on the same Trading Day. The adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive the distribution to which this Section 5.04(a)(iii) applies, except that an adjustment related to a Spin-off shall become effective at the earlier to occur of (i) 10 Trading Days after the effective date of the Spin-off and (ii) the initial public offering of the securities distributed in the Spin-off. (iv) Cash Dividends and Distributions. In case the Company shall, by dividend or otherwise, pay regular quarterly, semi-annual or annual cash dividends or make any other distributions consisting exclusively of cash to all holders of its Common Stock, excluding any regular cash dividend or distribution on the Common Stock to the extent that the aggregate cash dividend or distribution per share of Common Stock in any fiscal year does not exceed $0.46 (the "Dividend Threshold Amount") (the Dividend Threshold Amount is subject to adjustment on the same basis as the Daily Amounts for any adjustment made pursuant to Section 5.04(a)(i)), then the Fixed Daily Settlement Rates will be adjusted as follows: (A) in the event of a regular dividend to which this Section 5.04(a)(iv) applies, the Fixed Daily Settlement Rates will be adjusted by multiplying them by a fraction, (1) the numerator of which is the Current Market Price of Common Stock, and (2) the denominator of which is the Current Market Price of Common 44 Stock, minus the excess, if any, of the amount per share of such dividend or distribution over the Dividend Threshold Amount; and (B) in the event of a cash dividend or distribution that is not a regular dividend, the Fixed Daily Settlement Rates will be adjusted by multiplying them by a fraction, (1) the numerator of which is the Current Market Price of Common Stock, and (2) the denominator of which is the Current Market Price of Common Stock minus the amount per share of such dividend or distribution. In either case, the adjustment shall be made on the date fixed for the determination of stockholders entitled to receive such dividend or distribution, to be effective at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or distribution. In the event that any such dividend or distribution is not so paid or made, each Fixed Daily Settlement Rate shall again be adjusted to be the Fixed Daily Settlement Rates that would then be in effect if such dividend or distribution had not been declared. (v) Adjustment for Company Tender Offer. If, after the date of this Agreement, the Company or any subsidiary of the Company pays holders of the Common Stock in respect of a tender or exchange offer, other than an odd-lot offer, by the Company or any of its subsidiaries for Common Stock to the extent that the offer involves aggregate consideration that, together with (A) any cash and the fair market value of any other consideration payable in respect of any tender offer (other than an odd-lot offer) by the Company or any of its subsidiaries for shares of Common Stock consummated within the preceding 12 months not triggering a Settlement Rate adjustment and (B) all-cash distributions to all or substantially all holders of Common Stock made within the preceding 12 months (other than regular quarterly, semi-annual or annual cash dividends), exceeds an amount equal to 10% of the aggregate market capitalization of the Company on the expiration date of the tender offer, the share components will be adjusted by multiplying them by a fraction, (A) the numerator of which is the sum of (1) the fair market value, as determined by the Board of Directors, of the aggregate consideration payable based upon the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares of Common Stock validly tendered or exchanged and not withdrawn as of the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the "Expiration Time") (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (2) the product of (x) the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and (y) the closing price of Common Stock on the Trading Day next succeeding the Expiration Time, and (B) the denominator of which will be the product of (1) the number of shares of Common Stock outstanding, including any Purchased Shares, at the Expiration Time and (2) the Closing Price of Common Stock on the Trading Day next succeeding the Expiration Time. 45 (vi) Calculation of Adjustments. All adjustments to the Fixed Daily Settlement Rates shall be calculated by the Company to the nearest 1/10,000th of one share of Common Stock (or if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment to the Settlement Rate shall be required unless such adjustment would require an increase or a decrease of at least one percent; provided that any adjustments not made shall be carried forward and taken into account in any subsequent adjustment and notwithstanding whether or not such 1/10,000th of a share threshold shall have been met, all such adjustments shall be made on the applicable Stock Purchase Date. If an adjustment is made to the Settlement Rate pursuant to paragraph (i) through (v) or (vii) of this Section 5.04(a), an adjustment shall also be made to the Closing Price for the Company's Common Stock solely to determine which of clauses (i), (ii) or (iii) of the definition of Daily Amount in Section 5.01(a) will apply on each Determination Date. Such adjustment shall be made by multiplying the Closing Price for the Company's Common Stock by a fraction, the numerator of which shall be the applicable Fixed Daily Settlement Rate immediately after such adjustment pursuant to paragraph (i) through (v) or (vii) of this Section 5.04(a) and the denominator of which shall be the applicable Fixed Daily Settlement Rate immediately before such adjustment; provided that if such adjustment to the applicable Fixed Daily Settlement Rate is required to be made pursuant to the occurrence of any of the events contemplated by paragraph (i) through (v) or (vii) of this Section 5.04(a) during the period taken into consideration for determining the Daily Amounts, appropriate and customary adjustments shall be made to such Fixed Daily Settlement Rate. (vii) When No Adjustment Required. No adjustment of the Fixed Daily Settlement Rates, and the number of shares to be delivered on Early Settlement need be made as a result of: (1) the issuance of the rights; (2) the distribution of separate certificates representing the rights; (3) the exercise or redemption of the rights in accordance with any rights agreement; or (4) the termination or invalidation of the rights, in each case, pursuant to the Company's stockholder rights plan existing on the date of this Agreement, as amended, modified, or supplemented from time to time, or any newly adopted stockholder rights plans; provided, however, that to the extent that the Company has a stockholder rights plan in effect upon settlement of a Stock Purchase Contract (including the Company's rights plan existing on the date of this Agreement), the Holder shall receive, in addition to the shares of Common Stock, the rights under such rights plan, unless, prior to any settlement of a Stock Purchase Contract, the rights have separated from the Common Stock, in which case the applicable Fixed Daily Settlement Rate will be adjusted at the time of separation as if the Company made a distribution to all holders of Common Stock as described in clause (iii) above, subject to readjustment in the event of the expiration, termination or redemption of the rights. In addition, no adjustment to Fixed Daily Settlement Rates need be made: (A) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in Common Stock under any plan; 46 (B) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its subsidiaries; or (C) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the date the Common Equity Units were first issued. No adjustment to the Fixed Daily Settlement Rates need be made for a transaction referred to in 5.04(a)(ii) or 5.04(a)(iii) if Holders of the Common Equity Units may participate in the transaction on a basis and with notice that the Board of Directors determines to be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in the transaction. No adjustment to the Fixed Daily Settlement Rates need be made for a change in the par value or no par value of the Common Stock. (viii) Use of Terms. "Time of Determination" means the time and date of the earlier of (A) the determination of stockholders entitled to receive rights, warrants or options or a distribution in each case, to which Section 5.04(a)(ii) or Section 5.04(a)(iii) applies and (B) the time ("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend" trading for such rights, warrants or options or distribution on the NYSE or such other U.S. national or regional exchange or market on which the Common Stock are then listed or quoted. "Current Market Price" per share of Common Stock on any day means the average of the Closing Price per share of Common Stock on each Determination Date ending on the earlier of the day in question and the day before the "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance or distribution, means the first date on which the shares of Common Stock trade without the right to receive the issuance or distribution. (ix) Adjustments During Trading Day Period. If an event requiring an adjustment occurs on any Determination Date during the Trading Day Period, the applicable Fixed Daily Settlement Rate calculated for each Determination Date before the event requiring an adjustment occurs will be adjusted in the same manner as the adjustment to the Fixed Daily Settlement Rates for each Determination Date on or after the event requiring an adjustment occurs pursuant to the procedures described above. (b) Adjustment for Consolidation, Merger or Other Reorganization Event. In the event of (1) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities other property of the Company or another corporation), (2) any 47 sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety, (3) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition) or any binding share exchange which reclassifies or changes its outstanding Common Stock, or (4) any liquidation, dissolution or winding up of the Company other than as a result of or after the occurrence of a Termination Event (any such event, a "Reorganization Event"), (i) each share of Common Stock covered by each Stock Purchase Contract forming part of a Common Equity Unit immediately prior to such Reorganization Event shall, after such Reorganization Event, be converted for purposes of the Stock Purchase Contract into the kind and amount of securities, cash and other property receivable in such Reorganization Event (without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior to the applicable Stock Purchase Date) per share of Common Stock by a holder of Common Stock that (A) is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-Affiliates, and (B) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by a Person other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("Non-electing Share"), then for the purpose of this Section 5.04 the kind and amount of securities, cash and other property receivable upon such Reorganization Event in respect of each Non-electing Share shall be deemed to be the kind and amount so receivable per share of Common Stock by a plurality of the Non-electing Shares). On the Stock Purchase Date, the Settlement Rate then in effect will be applied to the value on the Stock Purchase Date of such securities, cash or other property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation or dissolution of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that the Holder of each Outstanding Common Equity Unit shall have the rights provided by this Section 5.04. Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events. (c) Successive Adjustments. After an adjustment to a Fixed Daily Settlement Rate under this Section 5.04, any subsequent event requiring an adjustment under this Section 5.04 shall cause an adjustment to such Fixed Daily Settlement Rate as so adjusted. 48 (d) Multiple Adjustments. For the avoidance of doubt, if an event occurs that would trigger an adjustment to a Fixed Daily Settlement Rate pursuant to this Section 5.04 under more than one subsection hereof, such event, to the extent fully taken into account in a single adjustment, shall not result in multiple adjustments hereunder. Section 5.05 Notice of Adjustments and Certain Other Events. (a) Whenever a Fixed Daily Settlement Rate is adjusted as provided under Sections 5.04(a) or 5.04(b), the Company shall within 10 Business Days following the occurrence of an event that requires such adjustment (or if the Company is not aware of such occurrence, as soon as reasonably practicable after becoming so aware): (i) compute the adjusted applicable Fixed Daily Settlement Rate in accordance with Section 5.04 and prepare and transmit to the Stock Purchase Contract Agent an Officers' Certificate setting forth the applicable Fixed Daily Settlement Rate, as the case may be, the method of calculation thereof in reasonable detail, and the facts requiring such adjustment and upon which such adjustment is based; and (ii) provide a written notice to the Holders of the Common Equity Units of the occurrence of such event and a statement in reasonable detail setting forth the method by which the adjustment to the applicable Fixed Daily Settlement Rate was determined and setting forth the adjusted applicable Fixed Daily Settlement Rate. (b) The Stock Purchase Contract Agent shall not at any time be under any duty or responsibility to any Holder of Common Equity Units to determine whether any facts exist which may require any adjustment of the applicable Fixed Daily Settlement Rate or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same. The Stock Purchase Contract Agent shall be fully authorized and protected in relying on any Officers' Certificate delivered pursuant to Section 5.05(a)(i) and any adjustment contained therein and the Stock Purchase Contract Agent shall not be deemed to have knowledge of any adjustment unless and until it has received such certificate. The Stock Purchase Contract Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at the time be issued or delivered with respect to any Stock Purchase Contract; and the Stock Purchase Contract Agent makes no representation with respect thereto. The Stock Purchase Contract Agent shall not be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock pursuant to a Stock Purchase Contract or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article V. Section 5.06 Termination Event; Notice. The Stock Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Payments (including any accrued and unpaid Contract Payments), if the Company shall have such obligation, and the rights and obligations of Holders to purchase Common Stock, shall immediately and automatically terminate, without the 49 necessity of any notice or action by any Holder, the Stock Purchase Contract Agent or the Company, if, prior to or on the Stock Purchase Date, a Termination Event shall have occurred. Upon and after the occurrence of a Termination Event, the Common Equity Units shall thereafter represent the right to receive the Trust Preferred Securities or the Treasury Securities, as the case may be, forming part of such Common Equity Units, in accordance with the provisions of Section 5.04 of the Pledge Agreement. Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than two Business Days thereafter give written notice to the Stock Purchase Contract Agent, the Collateral Agent and the Holders, at their addresses as they appear in the Security Register. Section 5.07 Early Settlement. (a) Subject to and upon compliance with the provisions of this Section 5.07, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units having an aggregated Stated Amount equal to $1,000 or an integral multiple thereof may be settled early ("Early Settlement") at any time until 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Stock Purchase Date; provided that no Early Settlement will be permitted pursuant to this Section 5.07 unless, at the time such Early Settlement is effected, there is an effective Registration Statement with respect to any securities to be issued and delivered in connection with such Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use commercially reasonable efforts to (i) have in effect a Registration Statement covering any securities to be delivered in respect of the Stock Purchase Contracts being settled and (ii) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Early Settlement. (b) In order to exercise the right to effect Early Settlement with respect to any Stock Purchase Contracts, the Holder of the Certificate evidencing Common Equity Units shall deliver such Certificate to the Stock Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the "Election to Settle Early" form on the reverse thereof duly completed and accompanied by payment (payable to the Company in immediately available funds) in an amount (the "Early Settlement Amount") equal to the sum of: (i) the product of (A) the Stated Amount times (B) the number of Stock Purchase Contracts with respect to which the Holder has elected to effect Early Settlement, plus (ii) if such delivery is made with respect to any Stock Purchase Contracts during the period from the close of business on any Record Date next preceding any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Payments payable on such Payment Date with respect to such Stock Purchase Contracts. Except as provided in the immediately preceding sentence, no payment shall be made upon Early Settlement of any Stock Purchase Contract on account of any Contract Payments 50 accrued on such Stock Purchase Contract or on account of any dividends on the Common Stock issued upon such Early Settlement. If the foregoing requirements are first satisfied with respect to Stock Purchase Contracts underlying any Common Equity Units by 5:00 p.m. (New York City time) on a Business Day, such day shall be the "Early Settlement Date" with respect to such Common Equity Units and if such requirements are first satisfied after 5:00 p.m. (New York City time) on a Business Day or on a day that is not a Business Day, the "Early Settlement Date" with respect to such Common Equity Units shall be the next succeeding Business Day. Upon the receipt of such Certificate and Early Settlement Amount from the Holder, the Stock Purchase Contract Agent shall pay to the Company such Early Settlement Amount, the receipt of which payment the Company shall confirm in writing. The Stock Purchase Contract Agent shall then, in accordance with Section 5.06 of the Pledge Agreement, notify the Collateral Agent that (A) such Holder has elected to effect an Early Settlement, which notice shall set forth the number of such Stock Purchase Contracts as to which such Holder has elected to effect Early Settlement and (B) the Stock Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Early Settlement Amount. Holders of Stripped Common Equity Units may only effect Early Settlement pursuant to this Section 5.07 in integral multiples of 80 Stripped Common Equity Units. Upon Early Settlement of the Stock Purchase Contracts, the rights of the Holders to receive and the obligation of the Company to pay any Contract Payments (including any accrued and unpaid Contract Payments) with respect to such Stock Purchase Contracts shall immediately and automatically terminate. (c) Upon Early Settlement of Stock Purchase Contracts by a Holder of the related Common Equity Units, the Company shall issue, and the Holder shall be entitled to receive, a number of newly issued or treasury shares of Common Stock equal to the Minimum Settlement Rate, as adjusted in the same manner and the same time as the Fixed Settlement Settlement Rates are adjusted (the "Early Settlement Rate"). (d) No later than the third Business Day after the applicable Early Settlement Date, the Company shall cause: (i) the shares of Common Stock issuable upon Early Settlement of Stock Purchase Contracts to be issued and delivered, together with payment in lieu of any fraction of a share, as provided in Section 5.09; and (ii) the related Pledged Trust Preferred Securities, in the case of Normal Common Equity Units, or the related Pledged Treasury Securities, in the case of Stripped Common Equity Units, to be released from the Pledge by the Collateral Agent, free and clear of the Company's security interest therein, and transferred, in each case, to the Stock Purchase Contract Agent for delivery to the Holder thereof or its designee. (e) Upon Early Settlement of any Stock Purchase Contracts, and subject to receipt of shares of Common Stock from the Company and the Trust Preferred Securities or Treasury Securities, as the case may be, from the Securities Intermediary, as applicable, the Stock Purchase Contract Agent shall, in accordance with the instructions provided by the Holder 51 thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Common Equity Units: (i) transfer to the Holder the Trust Preferred Securities or Treasury Securities, as the case may be, forming a part of such Common Equity Units, (ii) deliver to the Holder by book-entry transfer or in the form of a certificate or certificates for the full number of shares of Common Stock issuable upon such Early Settlement, together with payment in lieu of any fraction of a share, as provided in Section 5.09, as received from the Company, and (iii) if so required under the Securities Act, deliver a Prospectus for the shares of Common Stock issuable upon such Early Settlement as contemplated by (a), as received from the Company. (f) In the event that Early Settlement is effected with respect to Stock Purchase Contracts underlying less than all the Common Equity Units evidenced by a Certificate, upon such Early Settlement the Company shall execute and the Stock Purchase Contract Agent shall execute on behalf of the Holder, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Common Equity Units as to which Early Settlement was not effected. (g) A Holder of a Common Equity Unit who effects Early Settlement may elect to have the Preferred Trust Securities no longer a part of a Normal Common Equity Unit remarketed in accordance with the provisions of Section 5.02. Section 5.08 No Fractional Shares. No fractional shares of Common Stock shall be issued or delivered upon settlement on any Stock Purchase Date, or upon Early Settlement or Cash Merger Early Settlement of any Stock Purchase Contracts. If Certificates evidencing more than one Stock Purchase Contract shall be surrendered for settlement at one time by the same Holder, the number of full shares of Common Stock that shall be delivered upon settlement shall be computed on the basis of the aggregate number of Stock Purchase Contracts evidenced by the Certificates so surrendered. Instead of any fractional share of Common Stock that would otherwise be deliverable upon settlement of any Stock Purchase Contracts on the Stock Purchase Date, or upon Early Settlement or Cash Merger Early Settlement, the Company, through the Stock Purchase Contract Agent, shall make a cash payment in respect of such fractional interest in an amount equal to the percentage of such fractional share times the Closing Price as of the Trading Day immediately preceding such Stock Purchase Date, or upon Early Settlement or Cash Merger Early Settlement. The Company shall provide the Stock Purchase Contract Agent from time to time with sufficient funds to permit the Stock Purchase Contract Agent to make all cash payments required by this Section 5.08 in a timely manner. Section 5.09 Charges and Taxes. The Company will pay all stock transfer and similar taxes attributable to the initial issuance and delivery of the shares of Common Stock pursuant to the Stock Purchase Contracts; 52 provided, however, that the Company shall not be required to pay any such tax or taxes which may be payable in respect of any exchange of or substitution for a Certificate evidencing a Common Equity Unit or any issuance of a share of Common Stock in a name other than that of the registered Holder of a Certificate surrendered in respect of the Common Equity Units evidenced thereby, other than in the name of the Stock Purchase Contract Agent, as custodian for such Holder, and the Company shall not be required to issue or deliver such share certificates or Certificates unless or until the Person or Persons requesting the transfer or issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Section 5.10 Contract Payments. (a) Subject to Section 5.10(d) and Section 5.11, the Company shall pay, on each Payment Date, the Contract Payments (net of any withholding tax required by law to be withheld by the Company on such payments, which shall be remitted to the appropriate taxing jurisdiction) payable in respect of each Stock Purchase Contract to the Person in whose name a Certificate is registered at the close of business on the Record Date relating to such Payment Date. The Contract Payments will be payable at the office of the Stock Purchase Contract Agent in the Borough of Manhattan, New York City maintained for that purpose. If the book-entry system for the Common Equity Units has been terminated, the Contract Payments will be payable, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person's address as it appears on the Security Register, or by wire transfer to the account designated by such Person by a prior written notice to the Stock Purchase Contract Agent. If any date on which Contract Payments are to be made is not a Business Day, then payment of the Contract Payments payable on such date will be made on the next succeeding day that is a Business Day (and without any interest in respect of such delay). Contract Payments payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. The Contract Payments will accrue from June 21, 2005. (b) Upon the occurrence of a Termination Event, the Company's obligation to pay future Contract Payments (including any accrued Contract Payments) shall cease. (c) Each Certificate delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of (including as a result of a Collateral Substitution or the recreation of Normal Common Equity Units) any other Certificate shall carry the right to accrued and unpaid Contract Payments, which right was carried by the Stock Purchase Contracts underlying such other Certificates. (d) In the case of any Common Equity Units with respect to which Early Settlement or Cash Merger Early Settlement of the underlying Stock Purchase Contract is effected on a date that is after any Record Date and prior to or on the next succeeding Payment Date, Contract Payments otherwise payable on such Payment Date shall be payable on such Payment Date notwithstanding such Early Settlement or Cash Merger Early Settlement, and such Contract Payments shall be paid to the Person in whose name the Certificate evidencing such Common Equity Units is registered at the close of business on such Record Date. Except as otherwise expressly provided in the immediately preceding sentence, and the right to receive accrued and unpaid Contract Payments as set forth in Section 5.04(b)(ii), in the case of any Common Equity 53 Units with respect to which Early Settlement or Cash Merger Early Settlement of the underlying Stock Purchase Contract is effected, Contract Payments that would otherwise be payable after the Early Settlement or Cash Merger Early Settlement Date with respect to such Stock Purchase Contract shall not be payable. (e) The Company's obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company's obligations under any existing or future Senior Debt. (f) In the event of (A) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property, (B) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (C) any assignment by the Company for the benefit of creditors, or (D) any other marshalling of the assets of the Company: (i) all existing and future Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of Common Equity Units; (ii) any payment or distribution, whether in cash, securities or other property, which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Common Equity Units shall be paid or delivered directly to the holders of existing and future Senior Debt in accordance with the priorities then existing among such holders until all existing and future Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full; (iii) after payment in full of all sums owing with respect to Senior Debt, the Holders of Common Equity Units, together with the holders of any obligations of the Company ranking on a parity with the Common Equity Units, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Company's obligations under the Stock Purchase Contracts and such other obligations; and (iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Stock Purchase Contract Agent or any Holder of Common Equity Units in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all secured and Senior Debt remaining unpaid, to the extent necessary to pay all such existing and future Senior Debt in full. In the event of the failure of the Stock Purchase 54 Contract Agent or any Holder of Common Equity Units to endorse or assign any such payment, distribution or security, each holder of existing and future Senior Debt is hereby irrevocably authorized to endorse or assign the same. (g) For purposes of Section 5.11(e) through (q), the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Section 5.10(e) through (q) with respect to such Contract Payments on the Common Equity Units to the payment of all existing and future Senior Debt which may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. (h) Any failure by the Company to make any payment on or perform any other obligation under existing and future Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Section 5.10(e) through (q) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default under this Agreement if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review. (i) Subject to the irrevocable payment in full of all existing and future Senior Debt, the Holders of the Common Equity Units shall be subrogated (equally and ratably with the holders of all obligations of the Company which by their express terms are subordinated to Senior Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts underlying the Common Equity Units is subordinated and which are entitled to like rights of subrogation) to the rights of the holders of Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Debt until all such Contract Payments owing on the Common Equity Units shall be paid in full, and as between the Company, its creditors other than holders of such Senior Debt and the Holders, no such payment or distribution made to the holders of Senior Debt by virtue of Section 5.10(e) through (q) that otherwise would have been made to the Holders shall be deemed to be a payment by the Company on account of such Senior Debt, it being understood that the provisions of Section 5.10(e) through (q) are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Debt, on the other hand. 55 (j) Nothing contained in Section 5.10(e) through (q) or elsewhere in this Agreement or in the Common Equity Units is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Debt and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders such Contract Payments on the Common Equity Units as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than the holders of Senior Debt, nor shall anything herein or therein prevent the Stock Purchase Contract Agent or any Holder from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Section 5.10(e) through (q), of the holders of Senior Debt in respect of cash, property or securities of the Company received upon the exercise of any such remedy. (k) Upon payment or distribution of assets of the Company referred to in Section 5.10(e) through (q), the Stock Purchase Contract Agent and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or Stock Purchase Contract Agent or other person making any payment or distribution, delivered to the Stock Purchase Contract Agent or to the Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 5.10(e) through (q). (l) The Stock Purchase Contract Agent shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Stock Purchase Contract Agent determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to Section 5.10(e) through (q), the Stock Purchase Contract Agent may request such Person to furnish evidence to the reasonable satisfaction of the Stock Purchase Contract Agent as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Section 5.10(e) through (q), and, if such evidence is not furnished, the Stock Purchase Contract Agent may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment. (m) Nothing contained in Section 5.10(e) through (q) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in this Section 5.10(e) through (q). (n) Each Holder of Common Equity Units, by its acceptance thereof, shall be deemed to have authorized and directed the Stock Purchase Contract Agent on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in Section 5.10(e) through (q) and appointed the Stock Purchase Contract Agent its attorney-in-fact, as the case may be, for any and all such purposes. 56 (o) The Company shall give prompt written notice to the Stock Purchase Contract Agent of any fact known to the Company that would prohibit the making of any payment of moneys to or by the Stock Purchase Contract Agent in respect of the Common Equity Units pursuant to the provisions of this Section. Notwithstanding the provisions of Section 5.11(e) through (q) or any other provisions of this Agreement, the Stock Purchase Contract Agent shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of moneys to or by the Stock Purchase Contract Agent, or the taking of any other action by the Stock Purchase Contract Agent, unless and until the Stock Purchase Contract Agent shall have received written notice thereof mailed or delivered to the Stock Purchase Contract Agent at its Corporate Trust Office department from the Company, any Holder, or the holder or representative of any Senior Debt; provided that if at least two Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose, the Stock Purchase Contract Agent shall not have received with respect to such moneys the notice provided for in this Section, then, anything herein contained to the contrary notwithstanding, the Stock Purchase Contract Agent shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to or on or after such date. (p) The Stock Purchase Contract Agent in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior Debt at the time held by it, to the same extent as any other holder of Senior Debt and nothing in this Agreement shall deprive the Stock Purchase Contract Agent of any of its rights as such holder. (q) No right of any present or future holder of any Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof which any such holder may have or be otherwise charged with. (r) Nothing in this Section 5.10 shall apply to claims of, or payments to, the Stock Purchase Contract Agent under or pursuant to Section 7.07. (s) With respect to the holders of existing and future Senior Debt, (i) the duties and obligations of the Stock Purchase Contract Agent shall be determined solely by the express provisions of this Agreement; (ii) the Stock Purchase Contract Agent shall not be liable to any such holders if it shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, property or securities to which any holders of existing and future Senior Debt shall be entitled by virtue of this Section 5.11 or otherwise; (iii) no implied covenants or obligations shall be read into this Agreement against the Stock Purchase Contract Agent; and (iv) the Stock Purchase Contract Agent shall not be deemed to be a fiduciary as to such holders. Section 5.11 Deferral of Contract Payments. (a) The Company shall have the right, at any time prior to February 15, 2010, to defer the payment of any or all of the Contract Payments otherwise payable on any Payment Date, but 57 only if the Company shall give the Holders and the Stock Purchase Contract Agent written notice of its election to defer each such deferred Contract Payment (specifying the amount to be deferred) at least ten Business Days prior to the earlier of (i) the next succeeding Payment Date or (ii) the date the Company is required to give notice of the Record Date or Payment Date with respect to payment of such Contract Payments to the NYSE or other applicable self-regulatory organization or to Holders of the Common Equity Units, but in any event not less than one Business Day prior to such Record Date. Any Contract Payments so deferred shall, to the extent permitted by law, accrue interest thereon at the rate of 6.375% per year (computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Payments, if any, together with the additional Contract Payments, if any, accrued thereon, being referred to herein as the "Deferred Contract Payments"). Deferred Contract Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to this Section 5.11. No Contract Payments may be deferred to a date that is after February 15, 2010 and no such deferral period may end other than on a Payment Date. If the Stock Purchase Contracts are terminated upon the occurrence of a Termination Event, the Holder's right to receive Contract Payments, if any, and any Deferred Contract Payments, will terminate. (b) In the event that the Company elects to defer the payment of Contract Payments on the Stock Purchase Contracts until a Payment Date prior to the Stock Purchase Date, then all Deferred Contract Payments, if any, shall be payable to the registered Holders as of the close of business on the Record Date immediately preceding such Payment Date. (c) In the event that the Company elects or is directed by the Federal Reserve Board to defer the payment of Contract Payments on the Stock Purchase Contracts, each Holder will receive in respect of such deferred payments on the Stock Purchase Date in lieu of a cash payment, in the sole discretion of the Company, either (i) a number of shares of Common Stock (in addition to a number of shares of Common Stock per Common Equity Unit equal to the Settlement Rate) equal to (A) the aggregate amount of Deferred Contract Payments payable to such Holder (net of any required tax withholding on such Deferred Contract Payment, which shall be remitted to the appropriate taxing jurisdiction) divided by (B) (1) in the case of Contract Payments payable on or before the Initial Stock Purchase Date, the greater of (x) the Closing Price of the Common Stock on the Trading Day immediately preceding the Initial Stock Purchase Date and (y) $14.45, and (2) in the case of Contract Payments payable after the Initial Stock Purchase Date, the greater of (x) Closing Price of the Common Stock on the Trading Day immediately preceding the Subsequent Stock Purchase Date) and (y) $14.45, subject in each case to adjustment in the same manner and under the same circumstances as the Fixed Daily Settlement Rates pursuant to Section 5.04, or (ii) Unsecured Notes which will (A) have a principal amount equal to the aggregate amount of Deferred Contract Payments, (B) mature on August 15, 2010, (C) bear interest at an annual rate equal to the then market rate of interest for similar instruments (not to exceed 10%), as determined by a nationally recognized investment banking firm selected by the Company, (D) be subordinate and rank junior in right of payment to all of the Company's existing and future Senior Debt on the same basis as the Contract Payments, and (E) not be redeemable by the Company prior to their stated maturity. (d) No fractional shares of Common Stock will be issued by the Company with respect to the payment of Deferred Contract Payments on the Stock Purchase Date. In lieu of 58 fractional shares otherwise issuable with respect to such payment of Deferred Contract Payments, the Holder will be entitled to receive an amount in cash as provided in Section 5.08. (e) In the event the Company exercises its option to defer the payment of Contract Payments then, until the earlier of (x) the Termination Date or (y) the date on which the Deferred Contract Payments have been paid, the Company shall not (A) declare or pay dividends on, make distributions with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of the Company's Capital Stock; (B) make any payment of principal of, or interest or premium, if any, on or repay, repurchase or redeem the other series of junior subordinated debt securities or any debt securities issued by the Company that rank equally with or junior to the Company's junior subordinated debt securities (except for partial payments of interest with respect to the junior subordinated debt securities); and (C) make any payment under any guarantee that ranks equally with or junior to the Company's guarantee related to the Trust Preferred Securities other than, in each case: (i) any repurchase, redemption or other acquisition of shares of capital stock of the Company in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or stockholder purchase plan, or (z) the issuance of capital stock of the Company, or securities convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable Event of Default, Default or Deferral Period, as the case may be; (ii) any exchange, redemption or conversion of any class or series of capital stock of the Company, or the capital stock of one of the Company's subsidiaries, for any other class or series of capital stock of the Company, or of any class or series of the Company's indebtedness for any class or series of capital stock of the Company; (iii) any purchase of, or payment of cash in lieu of, fractional interests in shares of capital stock of the Company pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged; (iv) any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto; (v) payments by the Company under the Guarantee related to the applicable Trust Preferred Securities; or (vi) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equal with or junior to such stock. 59 ARTICLE VI REMEDIES Section 6.01 Unconditional Right of Holders to Receive Contract Payments and to Purchase Shares of Common Stock. Each Holder of a Common Equity Unit shall have the right, which is absolute and unconditional, (i) subject to Article V, to receive each Contract Payment with respect to the Stock Purchase Contract comprising part of such Common Equity Units on the respective Payment Date for such Common Equity Units and (ii) except upon and following a Termination Event, to purchase shares of Common Stock pursuant to such Stock Purchase Contract and, in each such case, to institute suit for the enforcement of any such right to receive Contract Payments and the right to purchase shares of Common Stock, and such rights shall not be impaired without the consent of such Holder. Section 6.02 Restoration of Rights and Remedies. If any Holder has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and in every such case, subject to any determination in such proceeding, the Company and such Holder shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had been instituted. Section 6.03 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates in the last paragraph of Section 3.10, no right or remedy herein conferred upon or reserved to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 6.04 Delay or Omission Not Waiver. No delay or omission of any Holder to exercise any right upon a default or remedy upon a default shall impair any such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article VI or by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders. Section 6.05 Undertaking for Costs. All parties to this Agreement agree, and each Holder of a Common Equity Unit, by its acceptance of such Common Equity Units shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this 60 Agreement, or in any suit against the Stock Purchase Contract Agent for any action taken, suffered or omitted by it as Stock Purchase Contract Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and costs against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section shall not apply to any suit instituted by the Stock Purchase Contract Agent, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% of the Outstanding Common Equity Units, or to any suit instituted by any Holder for the enforcement of interest on any Trust Preferred Securities or Contract Payments on or after the respective Payment Date therefor in respect of any Common Equity Units held by such Holder, or for enforcement of the right to purchase shares of Common Stock under the Stock Purchase Contracts constituting part of any Common Equity Units held by such Holder. Section 6.06 Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Stock Purchase Contract Agent or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE VII THE STOCK PURCHASE CONTRACT AGENT Section 7.01 Certain Duties and Responsibilities. (a) The Stock Purchase Contract Agent: (i) undertakes to perform, with respect to the Common Equity Units, such duties and only such duties as are or will be specifically set forth in this Agreement, the Pledge Agreement and the Remarketing Agreement and no implied covenants or obligations shall be read into this Agreement, the Pledge Agreement or the Remarketing Agreement against the Stock Purchase Contract Agent; and (ii) in the absence of bad faith or negligence on its part, may, with respect to the Common Equity Units, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Stock Purchase Contract Agent and conforming to the requirements of this Agreement or the Pledge Agreement or the Remarketing Agreement, as applicable, but in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Stock Purchase Contract Agent, the Stock Purchase Contract Agent shall be under a duty to examine the same to determine whether or not 61 they conform to the requirements of this Agreement, the Pledge Agreement or the Remarketing Agreement, as applicable (but need not confirm or investigate the accuracy of the mathematical calculations or other facts stated therein). (b) No provision of this Agreement, the Pledge Agreement or the Remarketing Agreement shall be construed to relieve the Stock Purchase Contract Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this subsection shall not be construed to limit the effect of subsection (a) of this Section; (ii) the Stock Purchase Contract Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be conclusively determined by a court of competent jurisdiction that the Stock Purchase Contract Agent was negligent in ascertaining the pertinent facts; and (iii) no provision of this Agreement or the Pledge Agreement or the Remarketing Agreement shall require the Stock Purchase Contract Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) Whether or not therein expressly so provided, every provision of this Agreement, the Pledge Agreement and the Remarketing Agreement relating to the conduct or affecting the liability of or affording protection to the Stock Purchase Contract Agent shall be subject to the provisions of this Article. (d) The Stock Purchase Contract Agent is authorized to execute and deliver the Pledge Agreement and the Remarketing Agreement in its capacity as Stock Purchase Contract Agent. Section 7.02 Notice of Default. Within 30 days after the occurrence of any default by the Company hereunder of which a Responsible Officer of the Stock Purchase Contract Agent has actual knowledge, the Stock Purchase Contract Agent shall transmit by mail to the Company and the Holders of Common Equity Units, as their names and addresses appear in the Security Register, notice of such default hereunder, unless such default shall have been cured or waived. Section 7.03 Certain Rights of Stock Purchase Contract Agent. Subject to the provisions of Section 7.01: (a) the Stock Purchase Contract Agent may, in the absence of bad faith, conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, 62 Trust Preferred Securities, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer Request, and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Agreement, the Pledge Agreement or the Remarketing Agreement the Stock Purchase Contract Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunder, the Stock Purchase Contract Agent (unless other evidence be herein specifically prescribed in this Agreement) may, in the absence of bad faith on its part, conclusively rely upon an Officers' Certificate of the Company; (d) the Stock Purchase Contract Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder, or under the Pledge Agreement or the Remarketing Agreement, in good faith and in reliance thereon; (e) the Stock Purchase Contract Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Stock Purchase Contract Agent may make reasonable further inquiry or investigation into such facts or matters related to the execution, delivery and performance of the Stock Purchase Contracts, and, if the Stock Purchase Contract Agent makes such further inquiry or investigation, it shall be entitled to examine the relevant books, records and premises of the Company, personally or by agent or attorney; (f) the Stock Purchase Contract Agent may execute any of the powers hereunder or perform any duties hereunder, or under the Pledge Agreement or the Remarketing Agreement, either directly or by or through agents, attorneys, custodians or nominees or an Affiliate and the Stock Purchase Contract Agent shall not be responsible for any misconduct or negligence on the part of any agent, attorney, custodian or nominee or an Affiliate appointed with due care by it hereunder; (g) the Stock Purchase Contract Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any of the Holders pursuant to this Agreement, unless such Holders shall have offered to the Stock Purchase Contract Agent security or indemnity reasonably satisfactory to the Stock Purchase Contract Agent against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (h) the Stock Purchase Contract Agent shall not be liable for any action taken, suffered, or omitted to be taken by it in the absence of bad faith or negligence by it; (i) the Stock Purchase Contract Agent shall not be deemed to have notice of any default hereunder unless a Responsible Officer of the Stock Purchase Contract Agent has actual knowledge thereof or unless written notice of any event that is in fact such a default is received 63 by the Stock Purchase Contract Agent at the Corporate Trust Office of the Stock Purchase Contract Agent, and such notice references the Common Equity Units and this Agreement; (j) the Stock Purchase Contract Agent may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; (k) the rights, privileges, protections, immunities and benefits given to the Stock Purchase Contract Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Stock Purchase Contract Agent in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; (l) the Stock Purchase Contract Agent shall not be required to initiate or conduct any litigation or collection proceedings hereunder and shall have no responsibilities with respect to any default hereunder except as expressly set forth herein; and (m) In each case that the Stock Purchase Contract Agent may or is required hereunder or under the Pledge Agreement or the Remarketing Agreement to take any action, including without limitation to make any determination or judgment, to give consents, to exercise rights, powers or remedies, or otherwise to act hereunder or thereunder, the Stock Purchase Contract Agent may seek direction from the Holders of at least a majority in number of the Outstanding Common Equity Units. The Stock Purchase Contract Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction from the Holders of at least a majority in number of the Outstanding Common Equity Units. If the Stock Purchase Contract Agent shall request direction from the Holders of at least a majority in number of the Outstanding Common Equity Units with respect to any action, the Stock Purchase Contract Agent shall be entitled to refrain from such action unless and until such the Stock Purchase Contract Agent shall have received direction from the Holders of at least a majority in number of the Outstanding Common Equity Units, and the Stock Purchase Contract Agent shall not incur liability to any Person by reason of so refraining. Section 7.04 Not Responsible for Recitals or Issuance of Common Equity Units. The recitals contained herein, in the Pledge Agreement, the Remarketing Agreement and in the Certificates shall be taken as the statements of the Company, and the Stock Purchase Contract Agent assumes no responsibility for their accuracy or validity. The Stock Purchase Contract Agent makes no representations as to the validity or sufficiency of either this Agreement or of the Common Equity Units, or of the Pledge Agreement or the Pledge or the Collateral and shall have no responsibility for perfecting or maintaining the perfection of any security interest in the Collateral. The Stock Purchase Contract Agent shall not be accountable for the use or application by the Company of the proceeds in respect of the Stock Purchase Contracts. 64 The Stock Purchase Contract Agent shall only be responsible for transferring money, securities or other property in accordance with the terms herein to the extent that such money, securities or other property are actually received by the Stock Purchase Contract Agent. Section 7.05 May Hold Common Equity Units. Any Security Registrar or any other agent of the Company, or the Stock Purchase Contract Agent and its Affiliates, in their individual or any other capacity, may become the owner or pledgee of Common Equity Units and may otherwise deal with the Company, the Collateral Agent or any other Person with the same rights it would have if it were not Security Registrar or such other agent, or the Stock Purchase Contract Agent. The Company may become the owner or pledgee of Common Equity Units. Section 7.06 Money Held in Custody. Money held by the Stock Purchase Contract Agent in custody hereunder need not be segregated from the Stock Purchase Contract Agent's other funds except to the extent required by law or provided herein. The Stock Purchase Contract Agent shall be under no obligation to invest or pay interest on any money received by it hereunder except as otherwise provided hereunder or agreed in writing with the Company. Section 7.07 Compensation and Reimbursement. The Company agrees: (a) to pay to the Stock Purchase Contract Agent compensation for all services rendered by it hereunder, under the Pledge Agreement and under the Remarketing Agreement as the Company and the Stock Purchase Contract Agent shall from time to time agree in writing; (b) except as otherwise expressly provided for herein, to reimburse the Stock Purchase Contract Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Stock Purchase Contract Agent in accordance with any provision of this Agreement, the Pledge Agreement and the Remarketing Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel) in connection with the negotiation, preparation, execution and delivery and performance of this Agreement, the Pledge Agreement and the Remarketing Agreement and any modification, supplement or waiver of any of the terms thereof, except any such expense, disbursement or advance as may be attributable to its negligence, willful misconduct or bad faith; and (c) to indemnify the Stock Purchase Contract Agent and any predecessor Stock Purchase Contract Agent (and each of its directors, officers, agents and employees (collectively, the "Indemnitees") for, and to hold it harmless against, any loss, claim, damage, fine, penalty, liability or expense (including reasonable fees and expenses of counsel) incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of its duties hereunder and under the Pledge Agreement and the Remarketing Agreement, including the Indemnitees' reasonable costs and expenses of defending themselves against any claim (whether asserted by the Company, a Holder or any other Person) 65 or liability in connection with the exercise or performance of any of the Stock Purchase Contract Agent's powers or duties hereunder or thereunder. The provisions of this Section shall survive the resignation or removal of the Stock Purchase Contract Agent and the termination of this Agreement. Section 7.08 Corporate Stock Purchase Contract Agent Required, Eligibility. There shall at all times be a Stock Purchase Contract Agent hereunder which shall be a Person organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having (or being a member of a bank holding company having) a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority and having a corporate trust office in the Borough of Manhattan, New York City, if there be such a Person in the Borough of Manhattan, New York City, qualified and eligible under this Article VII and willing to act on reasonable terms. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Stock Purchase Contract Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VII. Section 7.09 Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Stock Purchase Contract Agent and no appointment of a successor Stock Purchase Contract Agent pursuant to this Article VII shall become effective until the acceptance of appointment by the successor Stock Purchase Contract Agent in accordance with the applicable requirements of Section 7.10. (b) The Stock Purchase Contract Agent may resign at any time by giving written notice thereof to the Company 30 days prior to the effective date of such resignation. If the instrument of acceptance by a successor Stock Purchase Contract Agent required by Section 7.10 shall not have been delivered to the Stock Purchase Contract Agent within 30 days after the giving of such notice of resignation, the resigning Stock Purchase Contract Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Stock Purchase Contract Agent. (c) The Stock Purchase Contract Agent may be removed at any time by Act of the Holders of at least a majority in number of the Outstanding Common Equity Units delivered to the Stock Purchase Contract Agent and the Company. If the instrument of acceptance by a successor Stock Purchase Contract Agent required by Section 7.10 shall not have been delivered to the Stock Purchase Contract Agent within 30 days after such Act, the Stock Purchase Contract Agent being removed may petition any court of competent jurisdiction for the appointment at the expense of the Company of a successor Stock Purchase Contract Agent. 66 (d) If at any time: (i) the Stock Purchase Contract Agent fails to comply with Section 310(b) of the TIA, as if the Stock Purchase Contract Agent were an indenture trustee under an indenture qualified under the TIA, and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Common Equity Unit for at least six months; (ii) the Stock Purchase Contract Agent shall cease to be eligible under Section 7.8 and shall fail to resign after written request therefor by the Company or by any such Holder; or (iii) the Stock Purchase Contract Agent shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Stock Purchase Contract Agent or of its property shall be appointed or any public officer shall take charge or control of the Stock Purchase Contract Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Stock Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a Common Equity Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Stock Purchase Contract Agent and the appointment of a successor Stock Purchase Contract Agent. (e) If the Stock Purchase Contract Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Stock Purchase Contract Agent for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Stock Purchase Contract Agent and shall comply with the applicable requirements of Section 7.10. If no successor Stock Purchase Contract Agent shall have been so appointed by the Company and accepted appointment in the manner required by Section 7.10, any Holder who has been a bona fide Holder of a Common Equity Unit for at least six months, on behalf of itself and all others similarly situated, or the Stock Purchase Contract Agent may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Stock Purchase Contract Agent. (f) The Company shall give, or shall cause such successor Stock Purchase Contract Agent to give, notice of each resignation and each removal of the Stock Purchase Contract Agent and each appointment of a successor Stock Purchase Contract Agent by mailing written notice of such event by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the applicable Security Register. Each notice shall include the name of the successor Stock Purchase Contract Agent and the address of its Corporate Trust Office. Section 7.10 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Stock Purchase Contract Agent, every such successor Stock Purchase Contract Agent so appointed shall execute, acknowledge and deliver to the Company and to the retiring Stock Purchase Contract Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring 67 Stock Purchase Contract Agent shall become effective and such successor Stock Purchase Contract Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Stock Purchase Contract Agent; but, on the request of the Company or the successor Stock Purchase Contract Agent, such retiring Stock Purchase Contract Agent shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Stock Purchase Contract Agent all the rights, powers and trusts of the retiring Stock Purchase Contract Agent and duly assign, transfer and deliver to such successor Stock Purchase Contract Agent all property and money held by such retiring Stock Purchase Contract Agent hereunder. (b) Upon request of any such successor Stock Purchase Contract Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Stock Purchase Contract Agent all such rights, powers and agencies referred to in subsection (a) of this Section. (c) No successor Stock Purchase Contract Agent shall accept its appointment unless at the time of such acceptance such successor Stock Purchase Contract Agent shall be qualified and eligible under this Article VII. (d) No successor Stock Purchase Contract Agent shall at the same time act as the Collateral Agent, the Custodial Agent or the Securities Intermediary and the Company shall not act as the Stock Purchase Contract Agent. Section 7.11 Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Stock Purchase Contract Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Stock Purchase Contract Agent shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Stock Purchase Contract Agent, shall be the successor of the Stock Purchase Contract Agent hereunder, provided that such Person shall be otherwise qualified and eligible under this Article VII, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the Stock Purchase Contract Agent then in office, any successor by merger, conversion or consolidation to such Stock Purchase Contract Agent may adopt such authentication and execution and deliver the Certificates so authenticated and executed with the same effect as if such successor Stock Purchase Contract Agent had itself authenticated and executed such Common Equity Units. Section 7.12 Preservation of Information; Communications to Holders. (a) The Stock Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders received by the Stock Purchase Contract Agent in its capacity as Security Registrar. (b) If three or more Holders (herein referred to as "Applicants") apply in writing to the Stock Purchase Contract Agent, and furnish to the Stock Purchase Contract Agent reasonable proof that each such applicant has owned a Common Equity Unit for a period of at least six 68 months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Common Equity Units and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Stock Purchase Contract Agent shall mail to all the Holders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Stock Purchase Contract Agent of the materials to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing. Section 7.13 No Obligations of Stock Purchase Contract Agent. Except to the extent otherwise expressly provided in this Agreement, the Stock Purchase Contract Agent assumes no obligations and shall not be subject to any liability under this Agreement, the Pledge Agreement, the Remarketing Agreement or any Stock Purchase Contract in respect of the obligations of the Holder of any Common Equity Units thereunder. The Company agrees, and each Holder of a Certificate, by its acceptance thereof, shall be deemed to have agreed, that the Stock Purchase Contract Agent's execution of the Certificates on behalf of the Holders shall be solely as agent and attorney-in-fact for the Holders, and that the Stock Purchase Contract Agent shall have no obligation to perform such Stock Purchase Contracts on behalf of the Holders, except to the extent expressly provided in Article V hereof. Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Stock Purchase Contract Agent or its officers, directors, employees or agents be liable under this Agreement, the Pledge Agreement or the Remarketing Agreement to any third party for indirect, incidental, 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 Stock Purchase Contract Agent and regardless of the form of action. Section 7.14 Tax Compliance. (a) The Stock Purchase Contract Agent, on its own behalf and on behalf of the Company, will comply with all applicable certification, information reporting and withholding (including "backup" withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to (i) any payments made with respect to the Common Equity Units or (ii) the issuance, delivery, holding, transfer, redemption or exercise of rights under the Common Equity Units. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent. (b) The Stock Purchase Contract Agent shall comply in accordance with the terms hereof with any written direction received from the Company with respect to the execution or certification of any required documentation and the application of such requirements to particular payments or Holders or in other particular circumstances, and may for purposes of this Agreement conclusively rely on any such direction in accordance with the provisions of Section 7.01(a) hereof. (c) The Stock Purchase Contract Agent shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on 69 written request, to the Company or its authorized representative within a reasonable period of time after receipt of such request. ARTICLE VIII SUPPLEMENTAL AGREEMENTS Section 8.01 Supplemental Agreements Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Stock Purchase Contract Agent, at any time and from time to time, may enter into one or more agreements supplemental hereto, in form satisfactory to the Company and the Stock Purchase Contract Agent, to: (a) evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Certificates; (b) add to the covenants of the Company for the benefit of the Holders, or surrender any right or power herein conferred upon the Company; (c) evidence and provide for the acceptance of appointment hereunder by a successor Stock Purchase Contract Agent; (d) make provision with respect to the rights of Holders pursuant to the requirements of Section 5.04(b); (e) cure any ambiguity (or formal defect) or correct or supplement any provisions herein which may be inconsistent with any other provisions herein; or (f) make any other provisions with respect to such matters or questions arising under this Agreement, provided that such action shall not adversely affect the interests of the Holders in any material respect. Section 8.02 Supplemental Agreements with Consent of Holders. With the consent of the Holders of not less than a majority in number of the Outstanding Common Equity Units voting together as one class, including without limitation the consent of the Holders obtained in connection with a tender or an exchange offer, by Act of said Holders delivered to the Company and the Stock Purchase Contract Agent, the Company, when duly authorized, and the Stock Purchase Contract Agent may enter into an agreement or agreements supplemental hereto for the purpose of modifying in any manner the terms of the Stock Purchase Contracts, or the provisions of this Agreement or the rights of the Holders in respect of the Common Equity Units; provided, however, that, except as contemplated herein, no such supplemental agreement shall, without the unanimous consent of the Holders of each Outstanding Common Equity Unit affected thereby, (a) change any Payment Date; 70 (b) change the amount or the type of Collateral required to be Pledged to secure a Holder's obligations under the Stock Purchase Contract, impair the right of the Holder of any Common Equity Unit to receive distributions on the related Collateral or otherwise adversely affect the Holder's rights in or to such Collateral or adversely alter the rights in or to such Collateral; (c) reduce any Contract Payments or change any place where, or the coin or currency in which, any Contract Payment is payable; (d) impair the right to institute suit for the enforcement of any Stock Purchase Contract or any Contract Payments; (e) reduce the number of shares of Common Stock or the amount of any other property to be purchased pursuant to any Stock Purchase Contract, increase the price to purchase shares of Common Stock or any other property upon settlement of any Stock Purchase Contract or change the Stock Purchase Date or the right to Early Settlement or Cash Merger Early Settlement or otherwise adversely affect the Holder's rights under the Stock Purchase Contract; or (f) reduce the percentage of the Outstanding Common Equity Units the consent of whose Holders is required for any modification or amendment to the provisions of this Agreement, the Stock Purchase Contracts or the Pledge Agreement; provided that if any amendment or proposal referred to above would adversely affect only the Normal Common Equity Units or the Stripped Common Equity Units, then only the affected class of Holders as of the record date for the Holders entitled to vote thereon will be entitled to vote on such amendment or proposal, and such amendment or proposal shall not be effective except with the consent of Holders of not less than a majority of such class; and provided, further, that the unanimous consent of the Holders of each outstanding Common Equity Unit of such class affected thereby shall be required to approve any amendment or proposal specified in clauses (a) through (f) above. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall approve the substance thereof. Section 8.03 Execution of Supplemental Agreements. In executing, or accepting the additional agencies created by, any supplemental agreement permitted by this Article VIII or the modifications thereby of the agencies created by this Agreement, the Stock Purchase Contract Agent shall be provided, and (subject to Section 7.01) shall be fully authorized and protected in relying upon, an Officers' Certificate and an Opinion of Counsel each stating that the execution of such supplemental agreement is authorized or permitted by this Agreement and that any and all conditions precedent to the execution and delivery of such supplemental agreement have been satisfied. The Stock Purchase Contract Agent may, but shall not be obligated to, enter into any such supplemental agreement which affects the Stock Purchase Contract Agent's own rights, duties or immunities under this Agreement or otherwise. 71 Section 8.04 Effect of Supplemental Agreements. Upon the execution of any supplemental agreement under this Article VIII, this Agreement shall be modified in accordance therewith, and such supplemental agreement 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 hereunder, shall be bound thereby. Section 8.05 Reference to Supplemental Agreements. Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any supplemental agreement pursuant to this Article VIII may, and shall if required by the Company, bear a notation in form approved by the Company as to any matter provided for in such supplemental agreement. If the Company shall so determine, new Certificates so modified as to conform, in the opinion of the Company, to any such supplemental agreement may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Stock Purchase Contract Agent in exchange for outstanding Certificates. ARTICLE IX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE Section 9.01 Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property Except under Certain Conditions. The Company covenants that it will not consolidate with, convert into, or merge with and into, any other corporation or sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person, unless: (a) either the Company shall be the continuing corporation, or the successor (if other than the Company) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such corporation shall expressly assume all the obligations of the Company under the Stock Purchase Contracts, this Agreement, the Pledge Agreement, the Trust Agreements, and the Remarketing Agreement by one or more supplemental agreements in form reasonably satisfactory to the Stock Purchase Contract Agent and the Collateral Agent, executed and delivered to the Stock Purchase Contract Agent and the Collateral Agent by such corporation; and (b) the Company or such successor corporation, as the case may be, shall not, immediately after such consolidation, conversion, merger, sale, assignment, transfer, lease or conveyance, be in default of payment obligations under the Stock Purchase Contracts, this Agreement, the Pledge Agreement, either Trust Agreement, or the Remarketing Agreement or in material default in the performance of any other covenants under any of the foregoing agreements. 72 Section 9.02 Rights and Duties of Successor Corporation. In case of any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance and upon any such assumption by a successor corporation in accordance with Section 9.01, such successor corporation shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Certificates evidencing Common Equity Units issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Stock Purchase Contract Agent; and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Stock Purchase Contract Agent shall authenticate and execute on behalf of the Holders and deliver any Certificates which previously shall have been signed and delivered by the officers of the Company to the Stock Purchase Contract Agent for authentication and execution, and any Certificate evidencing Common Equity Units which such successor corporation thereafter shall cause to be signed and delivered to the Stock Purchase Contract Agent for that purpose. All the Certificates issued shall in all respects have the same legal rank and benefit under this Agreement as the Certificates theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Certificates had been issued at the date of the execution hereof. In case of any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance, such change in phraseology and form (but not in substance) may be made in the Certificates evidencing Common Equity Units thereafter to be issued as may be appropriate. Section 9.03 Officers' Certificate and Opinion of Counsel Given to Stock Purchase Contract Agent. The Stock Purchase Contract Agent, subject to Section 7.01 and Section 7.03, shall receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance, and any such assumption, complies with the provisions of this Article IX and that all conditions precedent to the consummation of any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance have been met. ARTICLE X COVENANTS Section 10.01 Performance Under Stock Purchase Contracts. The Company covenants and agrees for the benefit of the Holders from time to time of the Common Equity Units that it will duly and punctually perform its obligations under the Stock Purchase Contracts in accordance with the terms of the Stock Purchase Contracts and this Agreement. 73 Section 10.02 Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, New York City an office or agency where Certificates may be presented or surrendered for acquisition of shares of Common Stock upon settlement of the Stock Purchase Contracts either the Stock Purchase Date or upon Early Settlement or Cash Merger Early Settlement and for transfer of Collateral upon occurrence of a Termination Event, where Certificates may be surrendered for registration of transfer or exchange, for a Collateral Substitution or recreation of Normal Common Equity Units and where notices and demands to or upon the Company in respect of the Common Equity Units and this Agreement may be served. The Company will give prompt written notice to the Stock Purchase Contract Agent of the location, and any change in the location, of such office or agency. The Company initially designates the Corporate Trust Office of the Stock Purchase Contract Agent as such office of the Company. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Stock Purchase Contract Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Stock Purchase Contract Agent as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies where Certificates may be presented or surrendered for any or all purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, New York City for such purposes. The Company will give prompt written notice to the Stock Purchase Contract Agent of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates as the place of payment for the Common Equity Units the Corporate Trust Office and appoints the Stock Purchase Contract Agent at its Corporate Trust Office as paying agent in such city. Section 10.03 Company to Reserve Common Stock. The Company shall at all times prior to the Subsequent Stock Purchase Date reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock the full number of shares of Common Stock then issuable against tender of payment in respect of all Stock Purchase Contracts constituting a part of the Common Equity Units evidenced by Outstanding Certificates. Section 10.04 Covenants as to Common Stock. The Company covenants that all shares of Common Stock which may be issued against tender of payment in respect of any Stock Purchase Contract constituting a part of the Outstanding Common Equity Units will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable. Section 10.05 Statements of Officers of the Company as to Default. The Company will deliver to the Stock Purchase Contract Agent, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate, stating whether or not to the knowledge of the signers thereof the Company is in default in the 74 performance and observance of any of the terms, provisions and conditions hereof, and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which the Company have knowledge. Section 10.06 ERISA. Each Holder from time to time of the Common Equity Units that is a Plan or who used assets of a Plan to purchase Common Equity Units hereby represents that either (i) no portion of the assets used by such Holder to acquire the Normal Common Equity Units constitutes assets of the Plan or (ii) the purchase or holding of the Normal Common Equity Units by such purchaser or transferee will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or similar violation under any applicable laws. Section 10.07 Tax Treatment. (a) The Company covenants and agrees, for United States federal, state and local income and franchise tax purposes, to (i) treat a Holder's acquisition of the Normal Common Equity Units as the acquisition of the Trust Preferred Securities and Stock Purchase Contract constituting the Normal Common Equity Units and (ii) treat each Holder as the owner of the applicable interest in the Collateral Account, including the Trust Preferred Securities or the Treasury Securities. (b) Each Holder of Common Equity Units shall be deemed to have agreed, by acceptance of Common Equity Units, and each Beneficial Owner shall be deemed to have agreed, by acceptance of a beneficial interest in Common Equity Units, to treat for all United States federal income tax purposes (i) MetLife Capital Trust II and MetLife Capital Trust III as grantor trusts, (ii) itself as the owner of the Stock Purchase Contracts and the related ownership interest in the Trust Preferred Securities or Treasury Securities, as applicable, pledged under the Pledge Agreement, (iii) the Debentures as indebtedness of the Company, and (iv) the fair market value of each undivided beneficial interest in each ownership interest in the Trust Preferred Securities included in each Normal Common Equity Unit as $12.50 and the fair market value of each Stock Purchase Contract as $0. SIGNATURES ON THE FOLLOWING PAGE 75 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: ______________________________ Name: Title: J.P.MORGAN TRUST COMPANY, NATIONAL ASSOCIATION as Stock Purchase Contract Agent By: ______________________________ Name: Title: 76 EXHIBIT A (FORM OF FACE OF NORMAL COMMON EQUITY UNIT CERTIFICATE) {For inclusion in Global Certificates only - THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE STOCK PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS THE NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE STOCK PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.} No. _________ CUSIP No. Number of Normal Common Equity Units: ___________________ METLIFE, INC. Normal Common Equity Units This Normal Common Equity Unit Certificate certifies that {Cede & Co.} is the registered Holder of the number of Normal Common Equity Units set forth above {for inclusion in Global Certificates only - or such other number of Normal Common Equity Units reflected in the Schedule of Increases or Decreases in the Global Certificate attached hereto}. Each Normal Common Equity Unit consists of (i) prior to the Initial Stock Purchase Date a 1/80 beneficial ownership interest of the Holder in one series A trust preferred security (the "series A trust preferred securities") of MetLife Capital Trust II, a Delaware statutory trust, subject to the Pledge of such interest in the series A trust preferred security by such Holder pursuant to the Pledge Agreement, (ii) a 1/80 beneficial ownership interest of the Holder in one series B trust preferred security (the "series B trust preferred security") of MetLife Capital Trust III, a Delaware statutory trust, subject to the Pledge of such interest in the series B trust preferred A-1 securities by such Holder pursuant to the Pledge Agreement, and (iii) one Stock Purchase Contract with MetLife, Inc. (the "Company"). All capitalized terms used herein which are defined in the Stock Purchase Contract Agreement (as defined on the reverse hereof) have the meaning set forth therein. Pursuant to the Pledge Agreement, the Trust Preferred Securities, constituting part of each Normal Common Equity Unit evidenced hereby have been pledged to the Collateral Agent, for the benefit of the Company, to secure the obligations of the Holder under the Stock Purchase Contract comprising part of such Normal Common Equity Units. The Pledge Agreement provides that all distributions on any Pledged Trust Preferred Securities constituting part of the Normal Common Equity Units received by the Securities Intermediary shall be paid by wire transfer in same day funds (i) in the case of (A) distributions on Pledged Trust Preferred Securities to the Stock Purchase Contract Agent to the account designated by the Stock Purchase Contract Agent, no later than 2:00 p.m., New York City time, on the Business Day such payment is received by the Securities Intermediary (provided that in the event such payment is received by the Securities Intermediary on a day that is not a Business Day or after 12:30 p.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 (ii) in the case of payments with respect to the liquidation amount of the Pledged Trust Preferred Securities, to the Company on the Stock Purchase Date (as described herein) in accordance with the terms of the Pledge Agreement, in full satisfaction of the respective obligations of the Holders of the Normal Common Equity Units of which such Pledged Trust Preferred Securities are a part under the Stock Purchase Contracts forming a part of such Normal Common Equity Units. Distributions on the Trust Preferred Securities forming part of a Normal Common Equity Unit evidenced hereby, which are payable quarterly in arrears on February 15, May 15, August 15, and November 15 of each year, commencing August 15, 2005 (a "Payment Date"), shall, subject to receipt thereof by the Stock Purchase Contract Agent from the Securities Intermediary, be paid to the Person in whose name this Normal Common Equity Unit Certificate (or a Predecessor Normal Common Equity Unit Certificate) is registered at the close of business on the Record Date for such Payment Date. Each Stock Purchase Contract evidenced hereby obligates the Holder of this Normal Common Equity Unit Certificate to purchase, and the Company to sell, on each of the Initial Stock Purchase Date and on the Subsequent Stock Purchase Date, at a price equal to $12.50 (the "Purchase Price"), a number of newly issued or treasury shares of common stock, par value $0.01 per share ("Common Stock"), of the Company, per Normal Common Equity equal to the applicable Settlement Rate, unless on or prior to the applicable Stock Purchase Date there shall have occurred a Termination Event or an Early Settlement or Cash Merger Early Settlement with respect to such Stock Purchase Contract, all as provided in the Stock Purchase Contract Agreement and more fully described on the reverse hereof. The Purchase Price for the shares of Common Stock purchased pursuant to each Stock Purchase Contract evidenced hereby, if not paid earlier, shall be paid on the applicable Stock Purchase Date by application of payment received in respect of the liquidation amount with respect to any Pledged Trust Preferred Securities pursuant to the Remarketing pledged to secure the obligations under such Stock Purchase Contract of the Holder of the Normal Common Equity Units of which such Stock Purchase Contract is a part. A-2 Each Stock Purchase Contract evidenced hereby obligates the holder to agree, for United States federal, state and local income and franchise tax purposes, to treat (i) itself as the owner of the Stock Purchase Contracts and the related ownership interest in the Trust Preferred Securities pledged under the Pledge Agreement, (ii) the Debentures as indebtedness of the Company, (iii) MetLife Capital Trust II and MetLife Capital Trust III as grantor trusts and (iv) the fair market value of each undivided beneficial interest in the Series A Trust Preferred Securities as $12.50, the fair market value of each ownership interest in the Series B Trust Preferred Securities as $12.50 and the fair market value of the Stock Purchase Contract as $0. The Company shall pay, on each Payment Date, in respect of each Stock Purchase Contract forming part of a Normal Common Equity Unit evidenced hereby, an amount (the "Contract Payments") equal to (1) from and including the issue date to but excluding the Initial Stock Purchase Date, at an annual rate of 1.510% of the Stated Amount and (2) from and including the initial stock purchase date to but excluding the Subsequent Stock Purchase Date, at an annual rate of 1.465% of the remaining Stated Amount, subject to its rights provided for in the Stock Purchase Contract Agreement to defer Contract Payments. Such Contract Payments shall be payable to the Person in whose name this Normal Common Equity Unit Certificate is registered at the close of business on the Record Date for such Payment Date. Distributions on the Trust Preferred Securities and the Contract Payments will be payable at the office of the Stock Purchase Contract Agent in New York City. If the book-entry system for the Normal Common Equity Units has been terminated, the Contract Payments will be payable, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person's address as it appears on the Security Register, or by wire transfer to the account designated by such Person by a prior written notice to the Stock Purchase Contract Agent. Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Stock Purchase Contract Agent by manual signature, this Normal Common Equity Unit Certificate shall not be entitled to any benefit under the Pledge Agreement or the Stock Purchase Contract Agreement or be valid or obligatory for any purpose. A-3 IN WITNESS WHEREOF, the Company and the Holder specified above have caused this instrument to be duly executed. METLIFE, INC. By: __________________________________ Name: Title: HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Stock Purchase Contracts) J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as attorney-in-fact of such Holder as Stock Purchase Contract Agent By: __________________________________ Name: Title: Date: _________________________ A-4 CERTIFICATE OF AUTHENTICATION OF STOCK PURCHASE CONTRACT AGENT This is one of the Normal Common Equity Unit Certificates referred to in the within mentioned Stock Purchase Contract Agreement. By: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Stock Purchase Contract Agent By: _____________________________________ Name: Title: Date: ___________________________ A-5 (FORM OF REVERSE OF NORMAL COMMON EQUITY UNIT CERTIFICATE) Each Stock Purchase Contract evidenced hereby is governed by a Stock Purchase Contract Agreement, dated as of June 21, 2005 (as may be supplemented from time to time, the "STOCK PURCHASE CONTRACT AGREEMENT"), between the Company and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent (including its successors hereunder, the "STOCK PURCHASE CONTRACT AGENT"), to which Stock Purchase Contract Agreement and supplemental agreements thereto reference, is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Stock Purchase Contract Agent, the Company, and the Holders and of the terms upon which the Normal Common Equity Unit Certificates are, and are to be, executed and delivered. Each Stock Purchase Contract evidenced hereby obligates the Holder of this Normal Common Equity Unit Certificate to purchase, and the Company to sell, on each of the Initial Stock Purchase Date and on the Subsequent Stock Purchase Date at a price equal to $12.50 (the "PURCHASE PRICE"), a number of shares of newly issued or treasury shares of Common Stock per Common Equity Unit equal to the applicable Settlement Rate, unless an Early Settlement, a Cash Merger Early Settlement or a Termination Event with respect to the Common Equity Units of which such Stock Purchase Contract is a part shall have occurred. The "SETTLEMENT RATE" is equal to the sum of the Daily Amounts. The "DAILY AMOUNT" for each Trading Day during the 20 consecutive Trading Days beginning on July 9, 2008 for the Initial Stock Purchase Date or the 20 consecutive Trading Days beginning on January 7, 2009 for the Subsequent Stock Purchase Date (each, a "DETERMINATION DATE") equals: (1) for each Determination Date on which the Closing Price for the Common Stock is less than or equal to $43.35 (the "REFERENCE PRICE"), a fraction of one share of Common Stock per Common Equity Unit equal to 1/20 times $12.50 divided by Reference Price, (2) for each Determination Date on which the Closing Price for the Common Stock is greater than the Reference Price but less than $53.10 (the "THRESHOLD APPRECIATION PRICE"), a fraction of one share of Common Stock per Common Equity Unit equal to 1/20 times $12.50 divided by the Closing Price, and (3) for each Determination Date on which the Closing Price for the Common Stock is greater than or equal to the Threshold Appreciation Price, a fraction of one share of Common Stock per Common Equity Unit equal to 1/20 times $12.50 divided by Threshold Appreciation Price, in each case subject to adjustment as provided in the Stock Purchase Contract Agreement (and in each case rounded upward or downward to the nearest 1/10,000th of a share). A-6 No fractional shares of Common Stock will be issued upon settlement of Stock Purchase Contracts, as provided in Section 5.08 of the Stock Purchase Contract Agreement. Each Stock Purchase Contract evidenced hereby, which is settled through Early Settlement or Cash Merger Early Settlement, shall obligate the Holder of the related Normal Common Equity Units to purchase at the Purchase Price, and the Company to sell, a number of newly issued or treasury shares of Common Stock equal to the Early Settlement Rate (in the case of an Early Settlement) or applicable Settlement Rate (in the case of a Cash Merger Early Settlement). The "CLOSING PRICE" per share of Common Stock on any date of determination means: (1) the closing sale price as of the close of the principal trading session (or, if no closing price is reported, the last reported sale price) per share on the New York Stock Exchange, Inc. (the "NYSE") on that date; (2) if Common Stock is not listed for trading on the NYSE on any such date, the closing sale price (or, if no closing price is reported, the last reported sale price) per share as reported in the composite transactions for the principal United States national or regional securities exchange on which Common Stock is so listed; (3) if Common Stock is not so listed on a United States national or regional securities exchange, the last closing sale price per share as reported by the Nasdaq Stock Market.; (4) if Common Stock is not so reported by the Nasdaq Stock Market, the last quoted bid price for the Common Stock in the over-the-counter market as reported by the PinkSheets LLC (formerly known as) National Quotation Bureau) or similar organization; or (5) if the bid price referred to above is not available, the market value of Common Stock on such date as determined by a nationally recognized independent investment banking firm retained by the Company for purposes of determining the Closing Price. A "TRADING DAY" means a day on which the Relevant Exchange is scheduled to be open for business and a day on which there has not occurred or does not exist a Market Disruption Event as provided by Section 5.01(a) of the Stock Purchase Contract Agreement. In accordance with the terms of the Stock Purchase Contract Agreement, the Holder of this Normal Common Equity Unit Certificate may pay the Purchase Price for the shares of Common Stock purchased pursuant to each Stock Purchase Contract evidenced hereby by effecting a Cash Settlement, an Early Settlement or, if applicable, a Cash Merger Early Settlement or from the proceeds of or a Remarketing of the related Pledged Trust Preferred Securities. A Holder of Normal Common Equity Units who (1) does not, on or prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Stock Purchase Date, notify the Stock Purchase Contract Agent of its intention to effect a Cash A-7 Settlement, or who does so notify the Stock Purchase Contract Agent but fails to make an effective Cash Settlement on or prior to 5:00 p.m. (New York City time) on the fourth Business Day immediately preceding the Stock Purchase Date, or (2) on or prior to 5:00 p.m. (New York City time) on the fifth Business Day prior to the applicable Stock Purchase Date, does not make an effective Early Settlement, shall pay the Purchase Price for the shares of Common Stock to be delivered under the related Stock Purchase Contract from the proceeds of the sale of the related Pledged Trust Preferred Securities held by the Collateral Agent in the Remarketing unless the Holder has previously made a Cash Merger Early Settlement. Such sale will be made by the Remarketing Agent pursuant to the terms of the Remarketing Agreement on the applicable Remarketing Date. Upon the occurrence of a Failed Remarketing with respect to the Third Remarketing Settlement Date for the Series A Trust Preferred Securities or a Failed Remarketing with respect to the Third Remarketing Settlement Date for the Series B Trust Preferred Securities, the Collateral Agent, for the benefit of the Company, will exercise its rights as a secured party with respect to the Pledged Trust Preferred Securities underlying the Normal Common Equity Units, and may, among other things, (A) retain such Trust Preferred Securities in full satisfaction of the Holders' obligations under the Stock Purchase Contracts or (B) sell such Trust Preferred Securities in one or more public or private sales or otherwise. In the event of a Failed Remarketing with respect to the Third Remarketing Settlement Date for the Series A Trust Preferred Securities or a Failed Remarketing with respect to the Third Remarketing Settlement Date for the Series B Trust Preferred Securities, the Company will issue a note, payable on August 15, 2010 and bearing interest at the rate of 4.91%, in the amount of any accrued and unpaid distributions on such Pledged Trust Preferred Securities as of February 15, 2009 or February 15, 2010, respectively, to the Stock Purchase Contract Agent for delivery to the Holders of the related Trust Preferred Securities. The Company shall not be obligated to issue any shares of Common Stock in respect of a Stock Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment of the aggregate Purchase Price for the shares of Common Stock to be purchased thereunder in the manner set forth in the Stock Purchase Contract Agreement. Under the terms of the Pledge Agreement and the Stock Purchase Contract Agreement, the Stock Purchase Contract Agent will be entitled to exercise the voting and any other consensual rights pertaining to the Pledged Trust Preferred Securities, but only to the extent instructed in writing by the Holders. Upon receipt of notice of any meeting at which holders of Trust Preferred Securities are entitled to vote or upon any solicitation of consents, waivers or proxies of holders of Trust Preferred Securities, the Stock Purchase Contract Agent shall, as soon as practicable thereafter, mail, first class, postage pre-paid, to the Normal Common Equity Units Holders a notice: (1) containing such information as is contained in the notice or solicitation; (2) stating that each Holder on the record date set by the Stock Purchase Contract Agent therefor (which, to the extent possible, shall be the same date as the record date for determining the holders of Trust Preferred Securities, as the case may be, entitled to vote) shall be entitled to instruct the Stock Purchase Contract Agent as to the exercise of the A-8 voting rights pertaining to the Trust Preferred Securities underlying such Holder's Normal Common Equity Units; and (3) stating the manner in which such instructions may be given. Upon the written request of the Normal Common Equity Units Holders on such record date received by the Stock Purchase Contract Agent at least six days prior to such meeting, the Stock Purchase Contract Agent shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum aggregate liquidation amount of Trust Preferred Securities, as the case may be, as to which any particular voting instructions are received. In the absence of specific instructions from the Holder of a Normal Common Equity Unit, the Stock Purchase Contract Agent shall abstain from voting the Trust Preferred Securities evidenced by such Normal Common Equity Units. The Company hereby agrees, if applicable, to solicit Holders of Normal Common Equity Units to timely instruct the Stock Purchase Contract Agent in order to enable the Stock Purchase Contract Agent to vote the Trust Preferred Securities. The Holders of Normal Common Equity Units shall have no voting or other rights in respect of Common Stock. Upon the occurrence of a Successful Remarketing, the Collateral Agent shall, in accordance with the Pledge Agreement, cause the Securities Intermediary to transfer the Pledged Trust Preferred Securities upon confirmation of deposit by the Remarketing Agent of the proceeds of such Successful Remarketing in the Collateral Account. The Remarketing Agent will deduct a remarketing fee in accordance with the terms of the Remarketing Agreement. With respect to Pledged Trust Preferred Securities upon a Successful Remarketing, any proceeds of the Remarketing in excess of the aggregate Purchase Price applicable to the related Normal Common Equity Units plus the portion of the Remarketing Fee attributable to such Pledged Trust Preferred Securities will be remitted to the Stock Purchase Contract Agent for payment to the Holders of the related Normal Common Equity Units. The Normal Common Equity Unit Certificates are issuable only in registered form and only in denominations of a single Normal Common Equity Unit and any integral multiple thereof. The transfer of any Normal Common Equity Unit Certificate will be registered and Normal Common Equity Unit Certificates may be exchanged as provided in the Stock Purchase Contract Agreement. The Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents permitted by the Stock Purchase Contract Agreement. No service charge shall be required for any such registration of transfer or exchange, but the Company and the Stock Purchase Contract Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. A Holder who elects to substitute a Treasury Security for a Trust Preferred Security, thereby creating Stripped Common Equity Units, shall be responsible for any fees or expenses payable in connection therewith. Except as provided in the Stock Purchase Contract Agreement, for so long as the Stock Purchase Contract underlying a Normal Common Equity Unit remains in effect, such Normal Common Equity Units shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Normal Common Equity Units in respect of the Trust Preferred Securities and Stock Purchase Contract constituting such Normal Common Equity Units may be transferred and exchanged only as a Normal Common Equity Unit. A-9 Subject to the conditions set forth in the Stock Purchase Contract Agreement, a Holder may, at any time on or prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding any Remarketing Settlement Date, effect a Collateral Substitution and separate the Pledged Trust Preferred Securities from the related Stock Purchase Contracts in respect of all or a portion of such Holder's Normal Common Equity Units by substituting for such Pledged Trust Preferred Securities, Treasury Securities or portions thereof in an aggregate liquidation amount at maturity equal to the aggregate liquidation amount of such Pledged Trust Preferred Securities; provided that Holders may make Collateral Substitutions only in integral multiples of 80 Normal Common Equity Units. The Company shall pay, on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Person in whose name the Normal Common Equity Unit Certificate evidencing such Stock Purchase Contract is registered at the close of business on the Record Date for such Payment Date. Contract Payments will be payable at the office of the Stock Purchase Contract Agent in New York City. If the book-entry system for the Normal Common Equity Units has been terminated, the Contract Payments will be payable, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person's address as it appears on the Security Register, or by wire transfer to the account designated by such Person by a prior written notice to the Stock Purchase Contract Agent. The Company shall have the right, at any time prior to the February 15, 2010, to defer the payment of any or all of the Contract Payments otherwise payable on any Payment Date, but only if the Company shall give the Holders and the Stock Purchase Contract Agent written notice of its election to defer each such deferred Contract Payment pursuant to Section 5.11 of the Stock Purchase Contract Agreement. Any Contract Payments so deferred shall, to the extent permitted by law, accrue additional Contract Payments thereon at the rate of 6.375% per year (computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Payments, if any, together with the additional Contract Payments, if any, accrued thereon, being referred to herein as the "Deferred Contract Payments"). Deferred Contract Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to the Section 5.11 of the Stock Purchase Contract Agreement. No Contract Payments may be deferred to a date that is after the Stock Purchase Date and no such deferral period may end other than on a Payment Date. If the Stock Purchase Contracts are terminated upon the occurrence of a Termination Event, the Holder's right to receive Contract Payments, if any, and any Deferred Contract Payments, will terminate. The Stock Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Payments, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Stock Purchase Contract Agent or the Company, if, on or prior to either Stock Purchase Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than two Business Days thereafter give written notice to the Stock Purchase Contract Agent, the Collateral Agent and the Holders, at their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Pledged Trust Preferred Securities from the Pledge in accordance with the A-10 provisions of the Pledge Agreement. A Normal Common Equity Unit shall thereafter represent the right to receive the Trust Preferred Securities forming a part of such Normal Common Equity Units in accordance with the terms of, and except as set forth in, the Stock Purchase Contract Agreement and the Pledge Agreement. Subject to and upon compliance with the provisions of the Stock Purchase Contract Agreement, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units may be settled early ("EARLY SETTLEMENT") at any time on or prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the Subsequent Stock Purchase Date as provided in the Stock Purchase Contract Agreement. In order to exercise the right to effect Early Settlement with respect to any Stock Purchase Contract evidenced by this Certificate, the Holder of this Normal Common Equity Unit Certificate shall deliver to the Stock Purchase Contract Agent at the Corporate Trust Office prior to the time specified in the Stock Purchase Contract Agreement an Election to Settle Early form set forth below duly completed and accompanied by payment in the form of immediately available funds payable to the order of the Company in an amount (the "EARLY SETTLEMENT AMOUNT") equal to the sum of: (i) the product of (A) the Stated Amount times (B) the number of Stock Purchase Contracts with respect to which the Holder has elected to effect Early Settlement, plus (ii) if such delivery is made with respect to any Stock Purchase Contracts during the period from the close of business on any Record Date next preceding any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Payments payable on such Payment Date with respect to such Stock Purchase Contracts. Upon Early Settlement of Stock Purchase Contracts by a Holder of the related Common Equity Units, the Pledged Trust Preferred Securities shall be released from the Pledge as provided in the Pledge Agreement and the Holder shall be entitled to receive a number of newly issued or treasury shares of Common Stock adjusted in the same manner and at the same time as the Settlement Rate is adjusted (the "EARLY SETTLEMENT RATE"). Upon the occurrence of a Cash Merger, a Holder of Normal Common Equity Units may effect Cash Merger Early Settlement of the Stock Purchase Contract underlying such Normal Common Equity Units pursuant to the terms of Section 5.04(b)(ii) of the Stock Purchase Contract Agreement. Upon Cash Merger Early Settlement of Stock Purchase Contracts by a Holder of the related Normal Common Equity Units, the Pledged Trust Preferred Securities underlying such Normal Common Equity Units shall be released from the Pledge as provided in the Pledge Agreement. Upon registration of transfer of this Normal Common Equity Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Stock Purchase Contract Agent pursuant to the Stock Purchase Contract Agreement), under the terms of the Stock Purchase Contract Agreement and the Stock Purchase Contracts evidenced hereby and the transferor shall be released from the obligations A-11 under the Stock Purchase Contracts evidenced by this Normal Common Equity Unit Certificate. The Company covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. The Holder of this Normal Common Equity Unit Certificate, by its acceptance hereof, irrevocably authorizes the Stock Purchase Contract Agent to enter into and perform the related Stock Purchase Contracts forming part of the Normal Common Equity Units evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any consent to the assumption (i.e., affirmance) of the Stock Purchase Contracts by the Company or its trustee in the event that the Company becomes the subject of a case under the Bankruptcy Code, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Stock Purchase Contracts, consents to the provisions of the Stock Purchase Contract Agreement, irrevocably authorizes the Stock Purchase Contract Agent to enter into and perform the Stock Purchase Contract Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and consents to, and agrees to be bound by, the Pledge of such Holder's right, title and interest in and to the Collateral Account, including the Trust Preferred Securities underlying this Normal Common Equity Unit Certificate pursuant to the Pledge Agreement. The Holder further covenants and agrees that, to the extent and in the manner provided in the Stock Purchase Contract Agreement and the Pledge Agreement, but subject to the terms thereof, payments with respect to the aggregate liquidation amount of the Pledged Trust Preferred Securities on the applicable Stock Purchase Date shall be paid by the Collateral Agent to the Company in satisfaction of such Holder's obligations under such Stock Purchase Contract and such Holder shall acquire no right, title or interest in such payments. Subject to certain exceptions, the provisions of the Stock Purchase Contract Agreement may be amended with the consent of the Holders of a majority in number of the outstanding Common Equity Units. The Stock Purchase Contracts and Common Equity Units shall be governed by, and construed in accordance with, the laws of the State of New York. Prior to due presentment of this Certificate for registration of transfer, the Company, the Stock Purchase Contract Agent and its Affiliates and any agent of the Company or the Stock Purchase Contract Agent may treat the Person in whose name this Normal Common Equity Unit Certificate is registered as the owner of the Normal Common Equity Units evidenced hereby for the purpose of receiving distributions payable on the Trust Preferred Securities, receiving payments of Contract Payments (subject to any applicable record date), performance of the Stock Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding any notice to the contrary, and neither the Company, the Stock Purchase Contract Agent nor any such agent shall be affected by notice to the contrary. The Stock Purchase Contracts shall not entitle the Holder to any of the rights of a holder of shares of Common Stock. A copy of the Stock Purchase Contract Agreement is available for inspection at the Corporate Trust Office. A-12 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM: as tenants in common UNIF GIFT MIN ACT: ______________ Custodian _____________ (cust)(minor) Under Uniform Gifts to Minors Act of __________________ TENANT: as tenants by the entireties JT TEN: as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto ________________________________________________________________________________ ________________________________________________________________________________ (Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee) ________________________________________________________________________________ ________________________________________________________________________________ (Please print or type name and address including Postal Zip code of Assignee) ________________________________________________________________________________ the within Normal Common Equity Unit Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney __________________, to transfer said Normal Common Equity Unit Certificates on the books of the Security Registrar, with full power of substitution in the premises. Dated: Signature ______________________________ NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Normal Common Equity Unit Certificates in every particular, without alteration or enlargement or any change whatsoever. Signature Guarantee: ___________________________________________________________ A-13 SETTLEMENT INSTRUCTIONS The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon settlement on or after the {Initial} {Subsequent} Stock Purchase Date of the Stock Purchase Contracts underlying the number of Normal Common Equity Units evidenced by this Normal Common Equity Unit Certificate be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. ______________________________________ Dated: Signature Signature Guarantee: _________________ (if assigned to another person) If shares are to be registered in the REGISTERED HOLDER name of and delivered to a Person other than the Holder, please (i) print such Please print name and address of Person's name and address and (ii) Registered Holder: provide a guarantee of your signature: ______________________________________ ______________________________________ Name Name ______________________________________ ______________________________________ Address Address ______________________________________ ______________________________________ ______________________________________ ______________________________________ ______________________________________ Social Security or other Taxpayer Identification Number, if any A-14 ELECTION TO SETTLE EARLY/CASH MERGER EARLY SETTLEMENT The undersigned Holder of this Normal Common Equity Unit Certificate hereby irrevocably exercises the option to effect {Early Settlement} {Cash Merger Early Settlement following a Cash Merger} in accordance with the terms of the Stock Purchase Contract Agreement with respect to the Stock Purchase Contracts underlying the number of Normal Common Equity Units evidenced by this Normal Common Equity Unit Certificate specified below. The undersigned Holder directs that a certificate for shares of Common Stock or other securities deliverable upon such {Early Settlement} {Cash Merger Early Settlement} be registered in the name of, and delivered, together with a check in payment for any fractional share and any Normal Common Equity Unit Certificate representing any Normal Common Equity Units evidenced hereby as to which {Early Settlement} {Cash Merger Early Settlement} of the related Stock Purchase Contracts is not effected, to the undersigned at the address indicated below unless a different name and address have been indicated below. Pledged Trust Preferred Securities deliverable upon such {Early Settlement} {Cash Merger Early Settlement} will be transferred in accordance with the transfer instructions set forth below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. Dated: Signature ______________________________ Signature Guarantee: __________________________________________________________ Number of Common Equity Units evidenced hereby as to which {Early Settlement} {Cash Merger Early Settlement} of the related Stock Purchase Contracts is being elected: If shares of Common Stock or Normal REGISTERED HOLDER Common Equity Unit Certificates are to be registered in the name of and delivered to and Pledged Trust Preferred Securities are to be transferred to a Person other than the Holder, please print such Person's name and address: Please print name and address of Registered Holder: ___________________________________ ________________________________________ Name Name ___________________________________ ________________________________________ Address Address Social Security or other Taxpayer A-15 Identification Number, if any Transfer Instructions for Pledged Trust Preferred Securities transferable upon {Early Settlement} {Cash Merger Early Settlement} or a Termination Event: A-16 {TO BE ATTACHED TO GLOBAL CERTIFICATES} SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE The following increases or decreases in this Global Certificate have been made:
Amount of increase Number of Normal in Number of Normal Amount of decrease in Common Equity Units Common Equity Units Number of Normal evidenced by this Signature of evidenced by the Common Equity Units Global Certificate authorized signatory Date Global evidenced by the following such of Stock Purchase Date Certificate Global Certificate decrease or increase Contract Agent
A-17 EXHIBIT B (FORM OF FACE OF STRIPPED COMMON EQUITY UNIT CERTIFICATE) {For inclusion in Global Certificate only - THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE STOCK PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.} No. _________ CUSIP No. Number of Stripped Common Equity Units: ___________________ METLIFE, INC. Stripped Common Equity Units This Stripped Common Equity Unit Certificate certifies that {Cede & Co.} is the registered Holder of the number of Stripped Common Equity Units set forth above {for inclusion in Global Certificates only - or such other number of Stripped Common Equity Units reflected in the Schedule of Increases or Decreases in the Global Certificate attached hereto}. Each Stripped Common Equity Unit consists of (i) prior to the Initial Stock Purchase Date, a 1/80 undivided beneficial ownership interest of a Treasury Security that matures as of the Applicable Remarketing Settlement Date having a principal amount at maturity equal to $1,000, subject to the Pledge of such interest in the Treasury Security by such Holder pursuant to the Pledge Agreement, (ii) a 1/80 undivided beneficial ownership interest of a Treasury Security that matures as of the Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities, with a principal amount at maturity of $1,000 subject to the Pledge of such Treasury Security by such Holder pursuant to the Pledge Agreement, and (iii) the rights and obligations of the Holder under one Stock Purchase Contract with MetLife, Inc, a Delaware corporation (the B-1 "COMPANY"). All capitalized terms used herein which are defined in the Stock Purchase Contract Agreement (as defined on the reverse hereof) have the meaning set forth therein. Pursuant to the Pledge Agreement, the Treasury Securities constituting part of each Stripped Common Equity Unit evidenced hereby have been pledged to the Collateral Agent, for the benefit of the Company, to secure the obligations of the Holder under the Stock Purchase Contract comprising part of such Stripped Common Equity Units. Each Stock Purchase Contract evidenced hereby obligates the Holder of this Normal Common Equity Unit Certificate to purchase, and the Company to sell, on each of the Initial Stock Purchase Date and on the Subsequent Stock Purchase Date, at a price equal to $12.50 (the "Purchase Price"), a number of newly issued or treasury shares of common stock, par value $0.01 per share ("Common Stock"), of the Company, equal to the applicable Settlement Rate, unless on or prior to the applicable Stock Purchase Date there shall have occurred a Termination Event or an Early Settlement or Cash Merger Early Settlement with respect to such Stock Purchase Contract, all as provided in the Stock Purchase Contract Agreement and more fully described on the reverse hereof. The Purchase Price for the shares of Common Stock purchased pursuant to each Stock Purchase Contract evidenced hereby, if not paid earlier, shall be paid on the applicable Stock Purchase Date by application of the proceeds from the Treasury Securities at maturity pledged to secure the obligations of the Holder under such Stock Purchase Contract of the Stripped Common Equity Units of which such Stock Purchase Contract is a part. Each Stock Purchase Contract evidenced hereby obligates the holder to agree, for United States federal, state and local income and franchise tax purposes, (i) to treat itself as the owner of the Stock Purchase Contracts and the related ownership interest in the Treasury Securities pledged under the Pledge Agreement, and (ii) the fair market value of each Stock Purchase Contract as $0. The Company shall pay, on each Payment Date, in respect of each Stock Purchase Contract forming part of a Stripped Common Equity Unit evidenced hereby, an amount (the "CONTRACT PAYMENTS") equal to (1) from and including the issue date to but excluding the Initial Stock Purchase Date, at an annual rate of 1.510% of the Stated Amount and (2) from and including the initial stock purchase date to but excluding the Subsequent Stock Purchase Date, at an annual rate of 1.465% of the remaining Stated Amount, subject to its rights provided for in the Stock Purchase Contract Agreement to defer Contract Payments. Such Contract Payments shall be payable to the Person in whose name this Stripped Common Equity Unit Certificate is registered at the close of business on the Record Date for such Payment Date. Contract Payments will be payable at the office of the Stock Purchase Contract Agent in New York City. If the book-entry system for the Stripped Common Equity Units has been terminated, the Contract Payments will be payable, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person's address as it appears on the Security Register, or by wire transfer to the account designated by such Person by a prior written notice to the Stock Purchase Contract Agent. Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. B-2 Unless the certificate of authentication hereon has been executed by the Stock Purchase Contract Agent by manual signature, this Stripped Common Equity Unit Certificate shall not be entitled to any benefit under the Pledge Agreement or the Stock Purchase Contract Agreement or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company and the Holder specified above have caused this instrument to be duly executed. METLIFE, INC. By: ____________________________________ Name: Title: HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Stock Purchase Contracts) By: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as attorney-in-fact of such Holder as Stock Purchase Contract Agent By: ____________________________________ Name: Title: Date: _________________________ B-3 CERTIFICATE OF AUTHENTICATION OF STOCK PURCHASE CONTRACT AGENT This is one of the Stripped Common Equity Units referred to in the within-mentioned Stock Purchase Contract Agreement. J. P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent By: ____________________________________ Name: Title: Dated: _________________________________ B-4 (FORM OF REVERSE OF STRIPPED COMMON EQUITY UNIT CERTIFICATE) Each Stock Purchase Contract evidenced hereby is governed by a Stock Purchase Contract Agreement, dated as of June 21, 2005 (as may be supplemented from time to time, the "STOCK PURCHASE CONTRACT AGREEMENT"), between the Company and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent (including its successors hereunder, the "STOCK PURCHASE CONTRACT AGENT"), to which Stock Purchase Contract Agreement and supplemental agreements thereto reference, is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Stock Purchase Contract Agent, the Company, and the Holders and of the terms upon which the Stripped Common Equity Unit Certificates are, and are to be, executed and delivered. Each Stock Purchase Contract evidenced hereby obligates the Holder of this Normal Common Equity Unit Certificate to purchase, and the Company to sell, on each of the Initial Stock Purchase Date and on the Subsequent Stock Purchase Date at a price equal to $12.50 (the "PURCHASE PRICE"), a number newly issued or treasury shares of Common Stock per Common Equity Unit equal to the applicable Settlement Rate, unless an Early Settlement, a Cash Merger Early Settlement or a Termination Event with respect to the Common Equity Units of which such Stock Purchase Contract is a part shall have occurred. The "SETTLEMENT RATE" is equal to the sum of the Daily Amounts. The "DAILY AMOUNT" for each Trading Day during the 20 consecutive Trading Days beginning on July 9, 2008 for the Initial Stock Purchase Date or the 20 consecutive Trading Days beginning on January 7, 2009 for the Subsequent Stock Purchase Date (each, a "DETERMINATION DATE") equals: (1) for each Determination Date on which the Closing Price for the Common Stock is less than or equal to $43.35 (the "REFERENCE PRICE), a fraction of one share of Common Stock per Common Equity Unit equal to 1/20 times $12.50 divided by the Reference Price, (2) for each Determination Date on which the Closing Price for the Common Stock is greater than the Reference Price but less than $53.10(the "THRESHOLD APPRECIATION PRICE"), a fraction of one share of Common Stock per Common Equity Unit equal to 1/20 times $12.50 divided by the Closing Price, and (3) for each Determination Date on which the Closing Price for the Common Stock is greater than or equal to the Threshold Appreciation Price, a fraction of one share of Common Stock per Common Equity Unit equal to 1/20 times $12.50 divided by the Threshold Appreciation Price, in each case subject to adjustment as provided in the Stock Purchase Contract Agreement (and in each case rounded upward or downward to the nearest 1/10,000th of a share). B-5 No fractional shares of Common Stock will be issued upon settlement of Stock Purchase Contracts, as provided in Section 5.08 of the Stock Purchase Contract Agreement. Each Stock Purchase Contract evidenced hereby, which is settled through Early Settlement or Cash Merger Early Settlement, shall obligate the Holder of the related Stripped Common Equity Units to purchase at the Purchase Price, and the Company to sell, a number of newly issued or treasury shares of Common Stock equal to the Early Settlement Rate (in the case of an Early Settlement) or applicable Settlement Rate (in the case of a Cash Merger Early Settlement). The "CLOSING PRICE" per share of Common Stock on any date of determination means: (1) the closing sale price as of the close of the principal trading session (or, if no closing price is reported, the last reported sale price) per share on the New York Stock Exchange, Inc. (the "NYSE") on such date; (2) if Common Stock is not listed for trading on the NYSE on any such date, the closing sale price (or, if no closing price is reported, the last reported sale price) per share as reported in the composite transactions for the principal United States national or regional securities exchange on which Common Stock is so listed; (3) if Common Stock is not so listed on a United States national or regional securities exchange, the last closing sale price per share as reported by the Nasdaq Stock Market; (4) if Common Stock is not so reported by the Nasdaq Stock Market, the last quoted bid price for the Common Stock in the over-the-counter market as reported by PinkSheets LLC (formerly known as the National Quotation Bureau) or similar organization; or (5) if the bid price referred to above is not available, the market value of the Common Stock on such date as determined by a nationally recognized independent investment banking firm retained by the Company for purposes of determining the Closing Price. A "TRADING DAY" means a day on which the Relevant Exchange is scheduled to be open for business and a day on which there has not occurred or does not exist a Market Disruption Event as provided by Section 5.01(a) of the Stock Purchase Contract Agreement. In accordance with the terms of the Stock Purchase Contract Agreement, the Holder of this Stripped Common Equity Units shall pay the Purchase Price for the shares of the Common Stock purchased pursuant to each Stock Purchase Contract evidenced hereby either by effecting an Early Settlement or, if applicable, a Cash Merger Early Settlement of each such Stock Purchase Contract or by applying a principal amount of the Pledged Treasury Securities underlying such Holder's Stripped Common Equity Units equal to the Stated Amount of such Stock Purchase Contract to the purchase of the Common Stock. A Holder of Stripped Common Equity Units who (1) on or prior to 5:00 p.m. (New York City time) on the fifth Business Day B-6 prior to the Stock Purchase Date, does not make an effective Early Settlement or (2) on or prior to 5:00 p.m. (New York City time) on the fifth Business Day prior to the Stock Purchase Date, does not make an effective Cash Merger Early Settlement, shall pay the Purchase Price for the shares of Common Stock to be issued under the related Stock Purchase Contract from the proceeds of the Pledged Treasury Securities. The Company shall not be obligated to issue any shares of Common Stock in respect of a Stock Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment of the aggregate purchase price for the shares of Common Stock to be purchased thereunder in the manner set forth in the Stock Purchase Contract Agreement. The Stripped Common Equity Unit Certificates are issuable only in registered form and only in denominations of a single Stripped Common Equity Unit and any integral multiple thereof. The transfer of any Stripped Common Equity Unit Certificate will be registered and Stripped Common Equity Unit Certificates may be exchanged as provided in the Stock Purchase Contract Agreement. The Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents permitted by the Stock Purchase Contract Agreement. No service charge shall be required for any such registration of transfer or exchange, but the Company and the Stock Purchase Contract Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. A Holder who elects to substitute Trust Preferred Securities for Treasury Securities, thereby recreating Normal Common Equity Units, shall be responsible for any fees or expenses associated therewith. Except as provided in the Stock Purchase Contract Agreement, for so long as the Stock Purchase Contract underlying a Stripped Common Equity Unit remains in effect, such Stripped Common Equity Units shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Stripped Common Equity Units in respect of the Treasury Security and the Stock Purchase Contract constituting such Stripped Common Equity Units may be transferred and exchanged only as a Stripped Common Equity Unit. Subject to the conditions set forth in the Stock Purchase Contract Agreement, a Holder of Stripped Common Equity Units may recreate, at any time on or prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding any Remarketing Settlement Date, Normal Common Equity Units by delivering to the Securities Intermediary (1) prior to the Initial Stock Purchase Date, Series A Trust Preferred Securities and Series B Trust Preferred Securities and (2) and after the Initial Stock Purchase Date, Series B Trust Preferred Securities, in each case with an aggregate liquidation amount, equal to the aggregate principal amount at maturity of the corresponding Pledged Treasury Securities in exchange for the release of such Pledged Treasury Securities in accordance with the terms of the Stock Purchase Contract Agreement and the Pledge Agreement. From and after such substitution, the Holder's Common Equity Units shall be referred to as a "NORMAL COMMON EQUITY UNITS." Any such creation of Normal Common Equity Units may be effected only in multiples of 80 Stripped Common Equity Units for 80 Normal Common Equity Units. The Company shall pay, on each Payment Date, the Contract Payments (net of any withholding tax imposed on such payments, which shall be remitted to the appropriate taxing jurisdiction) payable in respect of each Stock Purchase Contract to the Person in whose name the Stripped Common Equity Unit Certificate evidencing such Stock Purchase Contract is registered B-7 at the close of business on the Record Date for such Payment Date. Contract Payments will be payable at the office of the Stock Purchase Contract Agent in New York City. If the book-entry system for the Normal Common Equity Units has been terminated, the Contract Payments will be payable, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person's address as it appears on the Security Register, or by wire transfer to the account designated by such Person by a prior written notice to the Stock Purchase Contract Agent. The Company shall have the right, at any time prior to February 15, 2010, to defer the payment of any or all of the Contract Payments otherwise payable on any Payment Date, but only if the Company shall give the Holders and the Stock Purchase Contract Agent written notice of its election to defer each such deferred Contract Payment pursuant to Section 5.11 of the Stock Purchase Contract Agreement. Any Contract Payments so deferred shall, to the extent permitted by law, accrue additional Contract Payments thereon at the rate of 6.375% per year (computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Payments, if any, together with the additional Contract Payments, if any, accrued thereon, being referred to herein as the "Deferred Contract Payments"). Deferred Contract Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to the Section 5.11 of the Stock Purchase Contract Agreement. No Contract Payments may be deferred to a date that is after the Stock Purchase Date and no such deferral period may end other than on a Payment Date. If the Stock Purchase Contracts are terminated upon the occurrence of a Termination Event, the Holder's right to receive Contract Payments, if any, and any Deferred Contract Payments, will terminate. The Stock Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Payments, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Stock Purchase Contract Agent or the Company, if, on or prior to either Stock Purchase Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than two Business Days thereafter give written notice to the Stock Purchase Contract Agent, the Collateral Agent and the Holders, at their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Pledged Treasury Securities (as defined in the Pledge Agreement) in accordance with the provisions of the Pledge Agreement. A Stripped Common Equity Unit shall thereafter represent the right to receive the interest in the Treasury Security forming a part of such Stripped Common Equity Units, in accordance with the terms of and except as set forth in, the Stock Purchase Contract Agreement and the Pledge Agreement. Subject to and upon compliance with the provisions of the Stock Purchase Contract Agreement, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units may be settled early ("EARLY SETTLEMENT") as provided in the Stock Purchase Contract Agreement. In order to exercise the right to effect Early Settlement with respect to any Stock Purchase Contract evidenced by this Certificate, the Holder of this Stripped Common Equity Unit Certificate shall deliver to the Stock Purchase Contract Agent at the Corporate Trust Office an Election to Settle Early form set forth below duly completed and accompanied by B-8 payment in the form of immediately available funds payable to the order of the Company in an amount (the "EARLY SETTLEMENT AMOUNT") equal to the sum of: (i) $25.00 times the number of Stock Purchase Contracts being settled, if settled on or prior to the fifth business day immediately preceding the Initial Stock Purchase Date, and thereafter $12.50 times the number of Stock Purchase Contracts being settled, if settled on or prior to the fifth Business Day immediately preceding the Subsequent Stock Purchase Date, plus (ii) if such delivery is made with respect to any Stock Purchase Contracts during the period from the close of business on any Record Date next preceding any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Payments payable on such Payment Date with respect to such Stock Purchase Contracts. Upon Early Settlement of Stock Purchase Contracts by a Holder of the related Common Equity Units, the Pledged Treasury Securities underlying such Common Equity Units shall be released from the Pledge as provided in the Pledge Agreement and the Holder shall be entitled to receive a number of newly issued or treasury shares of Common Stock adjusted in the same manner and at the same time as the Settlement Rate is adjusted (the "EARLY SETTLEMENT RATE"). Upon the occurrence of a Cash Merger, a Holder of Stripped Common Equity Units may effect Cash Merger Early Settlement of the Stock Purchase Contract underlying such Stripped Common Equity Units pursuant to the terms of Section 5.04(b)(ii) of the Stock Purchase Contract Agreement. Upon Cash Merger Early Settlement of Stock Purchase Contracts by a Holder of the related Stripped Common Equity Units, the Pledged Treasury Securities underlying such Stripped Common Equity Units shall be released from the Pledge as provided in the Pledge Agreement. Upon registration of transfer of this Stripped Common Equity Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Stock Purchase Contract Agent pursuant to the Stock Purchase Contract Agreement), under the terms of the Stock Purchase Contract Agreement and the Stock Purchase Contracts evidenced hereby and the transferor shall be released from the obligations under the Stock Purchase Contracts evidenced by this Stripped Common Equity Unit Certificate. The Company covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. The Holder of this Stripped Common Equity Unit Certificate, by its acceptance hereof, authorizes the Stock Purchase Contract Agent to enter into and perform the related Stock Purchase Contracts forming part of the Stripped Common Equity Units evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any consent to the assumption (i.e., affirmance) of the Stock Purchase Contracts by the Company or its trustee in the event that the Company becomes the subject of a case under the Bankruptcy Code, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Stock Purchase Contracts, consents to the provisions of the Stock Purchase Contract Agreement, authorizes the B-9 Stock Purchase Contract Agent to enter into and perform the Stock Purchase Contract Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and consents to the Pledge of the Treasury Securities underlying this Stripped Common Equity Unit Certificate pursuant to the Pledge Agreement. The Holder further covenants and agrees, that, to the extent and in the manner provided in the Stock Purchase Contract Agreement and the Pledge Agreement, but subject to the terms thereof, payments in respect to the aggregate principal amount of the Pledged Treasury Securities on the Stock Purchase Date shall be paid by the Collateral Agent to the Company in satisfaction of such Holder's obligations under such Stock Purchase Contract and such Holder shall acquire no right, title or interest in such payments. Subject to certain exceptions, the provisions of the Stock Purchase Contract Agreement may be amended with the consent of the Holders of a majority in number of the Outstanding Common Equity Units. The Stock Purchase Contracts, and Common Equity Units shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York. Prior to due presentment of this Certificate for registration or transfer, the Company, the Stock Purchase Contract Agent and its Affiliates and any agent of the Company or the Stock Purchase Contract Agent may treat the Person in whose name this Stripped Common Equity Unit Certificate is registered as the owner of the Stripped Common Equity Units evidenced hereby for the purpose of receiving payments of interest on the Treasury Securities, receiving payments of Contract Payments (subject to any applicable record date), performance of the Stock Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding any notice to the contrary, and neither the Company, the Stock Purchase Contract Agent nor any such agent shall be affected by notice to the contrary. The Stock Purchase Contracts shall not entitle the Holder to any of the rights of a holder of shares of Common Stock. A copy of the Stock Purchase Contract Agreement is available for inspection at the Corporate Trust Office. B-10 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM: as tenants in common Custodian -------------------------------------------------------- UNIF GIFT MIN ACT: (cust) (minor) Under Uniform Gifts to Minors Act of ________________________________________________________ TENANT: as tenants by the entireties JT TEN: as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto ________________________________________________________________________________ ________________________________________________________________________________ (Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee) the within Stripped Common Equity Unit Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney __________________, to transfer said Stripped Common Equity Unit Certificates on the books of the Security Registrar, with full power of substitution in the premises. Dated: Signature ______________________________ NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Stripped Common Equity Unit Certificates in every particular, without alteration or enlargement or any change whatsoever. Signature Guarantee: __________________________________________________________ B-11 SETTLEMENT INSTRUCTIONS The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon settlement on or after the {Initial}{Subsequent} Stock Purchase Date of the Stock Purchase Contracts underlying the number of Stripped Common Equity Units evidenced by this Stripped Common Equity Unit Certificate be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. Dated: _______________________________ If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person's name and address and (ii) provide a guarantee of your signature: _______________________________________ Name - --------------------------------------- Address _______________________________________ _______________________________________ _______________________________________ Social Security or other Taxpayer Identification Number, if any _______________________________________ Signature Signature Guarantee: _________________ (if assigned to another person) B-12 ELECTION TO SETTLE EARLY/CASH MERGER EARLY SETTLEMENT The undersigned Holder of this Stripped Common Equity Unit Certificate hereby irrevocably exercises the option to effect {Early Settlement} {Cash Merger Early Settlement upon a Cash Merger} in accordance with the terms of the Stock Purchase Contract Agreement with respect to the Stock Purchase Contracts underlying the number of Stripped Common Equity Units evidenced by this Stripped Common Equity Unit Certificate specified below. The option to effect {Early Settlement} {Cash Merger Early Settlement} may be exercised only with respect to Stock Purchase Contracts underlying Stripped Common Equity Units with an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The undersigned Holder directs that a certificate for shares of Common Stock or other securities deliverable upon such {Early Settlement} {Cash Merger Early Settlement} be registered in the name of, and delivered, together with a check in payment for any fractional share and any Stripped Common Equity Unit Certificate representing any Stripped Common Equity Units evidenced hereby as to which Cash Merger Early Settlement of the related Stock Purchase Contracts is not effected, to the undersigned at the address indicated below unless a different name and address have been indicated below. Pledged Treasury Securities deliverable upon such {Early Settlement} {Cash Merger Early Settlement} will be transferred in accordance with the transfer instructions set forth below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. Dated: _________________________________ Signature ____________________________ Signature Guarantee: __________________________________________________________ Number of Stripped Common Equity Units evidenced hereby as to which {Early Settlement} {Cash Merger Early Settlement} of the related Stock Purchase Contracts is being elected: If shares of Common Stock or REGISTERED HOLDER Stripped Normal Common Equity Unit Certificates are to be registered in the name of [Please print name and address] and delivered to and Pledged Treasury Securities are to be transferred to a Person other than the Holder, please print such Person's name and address: B-13 REGISTERED HOLDER Please print name and address of Registered Holder: _____________________________________ ________________________________________ Name Name _____________________________________ ________________________________________ Address Address _____________________________________ ________________________________________ _____________________________________ ________________________________________ _____________________________________ ________________________________________ Social Security or other Taxpayer Identification Number, if any Transfer Instructions for Pledged Treasury Securities Transferable upon {Early Settlement} {Cash Merger Early Settlement} or a Termination Event: B-14 {TO BE ATTACHED TO GLOBAL CERTIFICATES} SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE The following increases or decreases in this Global Certificate have been made:
Amount of increase in Number of Number of Stripped Stripped Common Amount of decrease in Common Equity Units Equity Units Number of Stripped evidenced by this Signature of evidenced by the Common Equity Units Global Certificate authorized signatory Date Global evidenced by the following such of Stock Purchase Date Certificate Global Certificate decrease or increase Contract Agent
B-15 EXHIBIT C INSTRUCTION TO STOCK PURCHASE CONTRACT AGENT J.P. Morgan Trust Company, National Association as Stock Purchase Contract Agent Worldwide Securities Services 4 New York Plaza, 15th Floor New York, New York 10004 Re: {Normal Common Equity Units} {Stripped Common Equity Units} of MetLife, Inc., a Delaware corporation (the "COMPANY"). The undersigned Holder hereby notifies you that it has delivered to JP Morgan Chase Bank, National Association, as Securities Intermediary, for credit to the Collateral Account, $_____ aggregate [liquidation] [principal] amount of {Trust Preferred Securities} {Treasury Securities} in exchange for the {Pledged Trust Preferred Securities} {Pledged Treasury Securities} held in the Collateral Account, in accordance with the Pledge Agreement, dated as of June 21, 2005 (the "PLEDGE AGREEMENT"; unless otherwise defined herein, terms defined in the Pledge Agreement are used herein as defined therein), between you, the Company, the Collateral Agent, the Custodial Agent and the Securities Intermediary. The undersigned Holder has paid all applicable fees and expenses relating to such exchange. The undersigned Holder hereby instructs you to instruct the Collateral Agent to release to you on behalf of the undersigned Holder the {Pledged Trust Preferred Securities} {Pledged Treasury Securities} related to such {Normal Common Equity Units} {Stripped Common Equity Units}. Date: _____________________________ _______________________________________ Signature Guarantee: Please print name and address of Registered Holder: _________________________________________ ____________________________________ _________________________________________ Name Social Security or other Taxpayer Identification Number, if any Address ____________________________________ ____________________________________ ____________________________________ C-1 EXHIBIT D NOTICE FROM STOCK PURCHASE CONTRACT AGENT TO HOLDERS (Transfer of Collateral upon Occurrence of a Termination Event) {HOLDER} _____________________________________ _____________________________________ Attention: Telecopy: ___________________________ Re: {Normal Common Equity Units} {Stripped Common Equity Units} of MetLife, Inc., a Delaware corporation (the "COMPANY") Please refer to the Stock Purchase Contract Agreement, dated as of June 21, 2005 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein, terms defined in the Stock Purchase Contract Agreement are used herein as defined therein), between the Company and the undersigned, as Stock Purchase Contract Agent and as attorney-in-fact for the holders of Normal Common Equity Units and Stripped Common Equity Units from time to time. We hereby notify you we have received notice that a Termination Event has occurred and that {the Trust Preferred Securities} {the Treasury Securities} comprising a portion of your ownership interest in ______, {Normal Common Equity Units} {Stripped Common Equity Units} have been released and are being held by us for your account pending receipt of transfer instructions with respect to such {Trust Preferred Securities} {Treasury Securities} (the "RELEASED SECURITIES"). Pursuant to Section 3.15 of the Stock Purchase Contract Agreement, we hereby request written transfer instructions with respect to the Released Securities. Upon receipt of your instructions and upon transfer to us of your {Normal Common Equity Units}{Stripped Common Equity Units} effected through book-entry or by delivery to us of your {Normal Common Equity Unit Certificate}{Stripped Common Equity Unit Certificate}, we shall transfer the Released Securities by book-entry transfer or other appropriate procedures, in accordance with your instructions. In the event you fail to effect such transfer or delivery, the Released Securities and any distributions thereon, shall be held in our name, or a nominee in trust for your benefit, until such time as such {Normal Common Equity Units}{Stripped Common Equity Units} are transferred or your {Normal Common Equity Unit Certificate} {Stripped Common Equity Unit Certificate} is surrendered or satisfactory evidence is provided that such {Normal Common Equity Unit Certificate}{Stripped Common Equity Unit Certificate} has been destroyed, lost or stolen, together with any indemnification that we or the Company may require. D-1 Dated: By: J.P. MORGAN TRUST COMPANY, _____________________ NATIONAL ASSOCIATION By: ____________________________________ Name: Title: Authorized Signatory D-2 EXHIBIT E NOTICE TO SETTLE BY CASH J.P. Morgan Trust Company, National Association as Stock Purchase Contract Agent Worldwide Securities Services 4 New York Plaza, 15th Floor New York, New York 10004 Re: Normal Common Equity Units of MetLife, Inc., a Delaware corporation (the "COMPANY") The undersigned Holder hereby irrevocably notifies you in accordance with Section 5.02 of the Stock Purchase Contract Agreement, dated as of June 21, 2005 (the "STOCK PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein, terms defined in the Stock Purchase Contract Agreement are used herein as defined therein), between the Company and you, as Stock Purchase Contract Agent and as attorney-in-fact for the Holders of the Stock Purchase Contracts, that such Holder has elected to pay to the Securities Intermediary for deposit in the Collateral Account, at or prior to 5:00 p.m. (New York City time) on the fourth Business Day immediately preceding the Stock Purchase Date (in lawful money of the United States by certified or cashiers' check or wire transfer, in immediately available funds), $[ ] as the Purchase Price for the shares of Common Stock issuable to such Holder by the Company with respect to Stock Purchase Contracts on the Stock Purchase Date. The undersigned Holder hereby instructs you to notify promptly the Collateral Agent of the undersigned Holders' election to make such Cash Settlement with respect to the Stock Purchase Contracts related to such Holder's Normal Common Equity Units. Dated:___________________________ By: By: ____________________________________ Name: Title: Authorized Signatory E-1 EXHIBIT F NOTICE FROM STOCK PURCHASE CONTRACT AGENT TO COLLATERAL AGENT (Settlement of Stock Purchase Contract through Remarketing) J.P. Morgan Chase Bank, National Association as Collateral Agent Worldwide Securities Services 4 New York Plaza, 15th Floor New York, New York 10004 Facsimile: (212) 623-6215 Attention: Worldwide Securities Services Re: Normal Common Equity Units of MetLife, Inc., a Delaware corporation (the "COMPANY") Please refer to the Stock Purchase Contract Agreement, dated as of June 21, 2005 (the "STOCK PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein, terms defined in the Stock Purchase Contract Agreement are used herein as defined therein), between the Company and the undersigned, as Stock Purchase Contract Agent and as attorney-in-fact for the Holders of Normal Common Equity Units from time to time. In accordance with Section 5.02 of the Stock Purchase Contract Agreement and, based on notices of Cash Settlements received from Holders of Normal Common Equity Units as of 5:00 p.m. (New York City time), on the fifth Business Day immediately preceding the Stock Purchase Date, we hereby notify you that Trust Preferred Securities in an aggregate liquidation amount of $[ ] are to be tendered for purchase in the Remarketing. Dated: By: J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent By: ____________________________________ Name: Title: Authorized Signatory F-1 EX-4.4 3 y10123exv4w4.txt FORM OF PLEDGE AGREEMENT Exhibit 4.4 PLEDGE AGREEMENT among METLIFE, INC. and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, As Collateral Agent, Custodial Agent and Securities Intermediary and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, As Stock Purchase Contract Agent Dated as of June 21, 2005 i TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS Section 1.01. Definitions.................................................................... 1 ARTICLE II PLEDGE Section 2.01. Pledge......................................................................... 6 Section 2.02. Control........................................................................ 7 Section 2.03. Termination.................................................................... 7 ARTICLE III DISTRIBUTIONS ON PLEDGED COLLATERAL Section 3.01. Income and Distributions....................................................... 7 Section 3.02. Payments Following Termination Event........................................... 7 Section 3.03. Payments Prior to or on Stock Purchase Date.................................... 7 Section 3.04. Payments to Stock Purchase Contract Agent...................................... 9 Section 3.05. Assets Not Properly Released................................................... 10 ARTICLE IV CONTROL Section 4.01. Establishment of Collateral Account............................................ 10 Section 4.02. Treatment as Financial Assets.................................................. 11 Section 4.03. Sole Control by Collateral Agent............................................... 11 Section 4.04. Securities Intermediary's Location............................................. 11 Section 4.05. No Other Claims................................................................ 11 Section 4.06. Investment and Release......................................................... 11 Section 4.07. Statements and Confirmations................................................... 11 Section 4.08. Tax Allocations................................................................ 12 Section 4.09. No Other Agreements............................................................ 12 Section 4.10. Powers Coupled with an Interest................................................ 12 Section 4.11. Waiver of Lien; Waiver of Set-off.............................................. 12 ARTICLE V INITIAL DEPOSIT; CREATION OF STRIPPED COMMON EQUITY UNITS AND RECREATION OF NORMAL COMMON EQUITY UNITS Section 5.01. Initial Deposit of Trust Preferred Securities.................................. 12
i TABLE OF CONTENTS (continued)
PAGE ---- Section 5.02. Creation of Stripped Common Equity Units....................................... 13 Section 5.03. Recreation of Normal Common Equity Units....................................... 14 Section 5.04. Termination Event.............................................................. 15 Section 5.05. Cash Settlement................................................................ 16 Section 5.06. Early Settlement and Cash Merger Early Settlement.............................. 18 Section 5.07. Application of Proceeds in Settlement of Stock Purchase Contracts.............. 18 ARTICLE VI VOTING RIGHTS - - PLEDGED TRUST PREFERRED SECURITIES Section 6.01. Voting Rights.................................................................. 20 ARTICLE VII RIGHTS AND REMEDIES Section 7.01. Rights and Remedies of the Collateral Agent.................................... 21 Section 7.02. Remarketing.................................................................... 22 Section 7.03. Successful Remarketing......................................................... 22 Section 7.04. Substitutions.................................................................. 23 ARTICLE VIII REPRESENTATIONS AND WARRANTIES; COVENANTS Section 8.01. Representations and Warranties................................................. 23 Section 8.02. Covenants...................................................................... 24 ARTICLE IX THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES INTERMEDIARY Section 9.01. Appointment, Powers and Immunities............................................. 24 Section 9.02. Instructions of the Company.................................................... 25 Section 9.03. Reliance by Collateral Agent, Custodial Agent and Securities Intermediary................................................................... 26 Section 9.04. Certain Rights................................................................. 27 Section 9.05. Merger, Conversion, Consolidation or Succession to Business.................... 27 Section 9.06. Rights in Other Capacities..................................................... 27 Section 9.07. Non-reliance on Collateral Agent, the Custodial Agent and Securities Intermediary................................................................... 28
ii TABLE OF CONTENTS (continued)
PAGE ---- Section 9.08. Compensation and Indemnity..................................................... 28 Section 9.09. Failure to Act................................................................. 29 Section 9.10. Resignation of Collateral Agent, the Custodial Agent and Securities Intermediary................................................................... 29 Section 9.11. Right to Appoint Agent or Advisor.............................................. 31 Section 9.12. Survival....................................................................... 31 Section 9.13. Exculpation.................................................................... 31 ARTICLE X AMENDMENT Section 10.01. Amendment Without Consent of Holders........................................... 31 Section 10.02. Amendment with Consent of Holders.............................................. 32 Section 10.03. Execution of Amendments........................................................ 33 Section 10.04. Effect of Amendments........................................................... 33 Section 10.05. Reference of Amendments........................................................ 33 ARTICLE XI MISCELLANEOUS Section 11.01. No Waiver...................................................................... 33 Section 11.02. Governing Law; Submission to Jurisdiction...................................... 34 Section 11.03. Notices........................................................................ 34 Section 11.04. Successors and Assigns......................................................... 34 Section 11.05. Counterparts................................................................... 34 Section 11.06. Severability................................................................... 35 Section 11.07. Expenses, Etc.................................................................. 35 Section 11.08. Security Interest Absolute..................................................... 35 Section 11.09. Notice of Termination Event.................................................... 36 Section 11.10. Incorporation by Reference..................................................... 36
iii EXHIBITS: EXHIBIT A - Instruction from Stock Purchase Contract Agent to Collateral Agent (Creation of Stripped Common Equity Units) EXHIBIT B - Instruction from Collateral Agent to Securities Intermediary (Creation of Stripped Common Equity Units) EXHIBIT C - Instruction from Stock Purchase Contract Agent to Collateral Agent (Recreation of Normal Common Equity Units) EXHIBIT D - Instruction from Collateral Agent to Securities Intermediary (Recreation of Normal Common Equity Units) EXHIBIT E - Notice of Cash Settlement from Collateral Agent to Stock Purchase Contract Agent EXHIBIT F - Instruction to Custodial Agent Regarding Remarketing EXHIBIT G - Instruction to Custodial Agent Regarding Withdrawal From Remarketing SCHEDULE I - Contact Persons for Confirmation i PLEDGE AGREEMENT, dated as of June 21, 2005 among MetLife, Inc., a Delaware corporation (the "Company"), JPMorgan Chase Bank, National Association, as collateral agent (in such capacity, the "Collateral Agent"), as custodial agent (in such capacity, the "Custodial Agent"), and as securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with respect to the Collateral Account (in such capacity, the "Securities Intermediary"), and J.P. Morgan Trust Company, National Association, as stock purchase contract agent and as attorney-in-fact of the Holders from time to time of the Common Equity Units (in such capacity, the "Stock Purchase Contract Agent") under the Stock Purchase Contract Agreement. RECITALS WHEREAS, the Company and the Stock Purchase Contract Agent are parties to the Stock Purchase Contract Agreement dated as of the date hereof (as modified and supplemented and in effect from time to time, the "Stock Purchase Contract Agreement"), pursuant to which 72,000,000 Normal Common Equity Units (or 82,800,000 Normal Common Equity Units if the option granted to the Underwriters pursuant to the Underwriting Agreement is exercised) will be issued. WHEREAS, each Normal Common Equity Unit, at issuance, consists of a unit comprised of (a) a stock purchase contract (a "Stock Purchase Contract") pursuant to which the Holder will purchase from the Company on each of the Initial Stock Purchase Date and the Subsequent Stock Purchase Date, for an amount equal to $12.50 on each such date, a number of shares of the Company's common stock, par value $1.00 per share, ("Common Stock") equal to the Settlement Rate, (b) a 1/80, or 1.25%, beneficial ownership interest in a Series A Trust Preferred Security with a liquidation amount of $1,000 (the "Series A Trust Preferred Securities"); and (c) a 1/80, or 1.25%, beneficial ownership interest in a Series B Trust Preferred Security with a liquidation amount of $1,000 (the "Series B Trust Preferred Securities" and, with the Series A Trust Preferred Securities, each a series of "Trust Preferred Securities"). WHEREAS, pursuant to the terms of the Stock Purchase Contract Agreement and the Stock Purchase Contracts, the Holders of the Common Equity Units have irrevocably authorized the Stock 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 herein of the Collateral to secure the Obligations. NOW, THEREFORE, the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Stock Purchase Contract Agent agree as follows: ARTICLE I DEFINITIONS SECTION 1.01 Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (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, and nouns and pronouns of the masculine gender include the feminine and neuter genders; (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, Exhibit or other subdivision; (c) the following terms which are defined in the UCC shall have the meanings set forth therein: "Certificated Security," "Control," "Financial Asset," "Entitlement Order," "Securities Account" and "Security Entitlement;" (d) capitalized terms used herein and not defined herein have the meanings assigned to them in the Stock Purchase Contract Agreement; and (e) the following terms have the meanings given to them in this Section 1.01(e): "Agreement" means this Pledge Agreement, as the same may be amended, modified or supplemented from time to time. "Applicable Remarketing Settlement Date" has the meaning set forth in the Stock Purchase Contract Agreement. "Cash" means any coin or currency of the United States as at the time shall be legal tender for payment of public and private debts. "Collateral" means the collective reference to: (i) the Series A Collateral Account, the Series B Collateral Account and all investment property and other financial assets from time to time credited thereto and all security entitlements with respect thereto, including, without limitation, (A) the Trust Preferred Securities and security entitlements relating thereto that are a component of the Normal Common Equity Units from time to time, (B) any Treasury Securities and security entitlements relating thereto delivered from time to time upon creation of Stripped Common Equity Units in accordance with Section 5.02 hereof and (C) payments made by Holders pursuant to Section 5.05 hereof; (ii) all Proceeds of any of the foregoing (whether such Proceeds arise before or after the commencement of any proceeding under any applicable bankruptcy, insolvency or other similar law, by or against the pledgor or with respect to the pledgor); and (iii) all powers and rights now owned or hereafter acquired under or with respect to the Collateral. "Collateral Account" means the Series A Collateral Account and/or the Series B Collateral Account, as the context requires. 2 "Collateral Agent" means the Person named as the "Collateral Agent" in the first paragraph of this Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter "Collateral Agent" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. "Common Stock" has the meaning specified in the second paragraph of the recitals of this Agreement. "Company" means the Person named as the "Company" in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provisions of the Stock Purchase Contract Agreement, and thereafter "Company" shall mean such successor. "Custodial Agent" means the Person named as the "Custodial Agent" in the first paragraph of this Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter "Custodial Agent" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. "Failed Remarketing" has the meaning set forth in the Stock Purchase Contract Agreement. "Final Failed Remarketing" means a Failed Remarketing with respect to the Third Remarketing Settlement Date (as defined in the Stock Purchase Contract Agreement) for each series of the Trust Preferred Securities, "Initial Stock Purchase Date" has the meaning set forth in the Stock Purchase Contract Agreement. "Obligations" means, with respect to each Holder, all obligations and liabilities of such Holder under such Holder's Stock Purchase Contract, the Stock Purchase Contract Agreement and this Agreement or any other document made, delivered or given in connection herewith or therewith, in each case whether on account of principal, interest (including, without limitation, interest accruing before and after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to such Holder, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Company or the Collateral Agent or the Securities Intermediary that are required to be paid by the Holder pursuant to the terms of any of the foregoing agreements). "Permitted Investments" means any one of the following, in each case maturing on the Business Day following the date of acquisition: (i) any evidence of indebtedness with an original maturity of 365 days or less issued, or directly and fully guaranteed or insured, by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support of the timely payment thereof or such indebtedness constitutes a general obligation of it); 3 (ii) deposits, certificates of deposit or acceptances with an original maturity of 365 days or less of any institution which is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500 million at the time of deposit (and which may include the institution acting as Collateral Agent); (iii) investments with an original maturity of 365 days or less of any Person that are fully and unconditionally guaranteed by a bank referred to in clause (ii); (iv) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any agency thereof and backed as to timely payment by the full faith and credit of the United States of America; (v) investments in commercial paper, other than commercial paper issued by the Company or its Affiliates, of any corporation incorporated under the laws of the United States of America or any State thereof, which commercial paper has a rating at the time of purchase at least equal to "A-1" by Standard & Poor's Ratings Services ("S&P") or at least equal to "P-1" by Moody's Investors Service, Inc. ("Moody's"); and (vi) investments in money market funds (including, but not limited to, money market funds managed by the institution acting as the Collateral Agent or an affiliate of the institution acting as the Collateral Agent) registered under the Investment Company Act of 1940, as amended, rated in the highest applicable rating category by S&P or Moody's. "Pledge" means the lien and security interest created by this Agreement. "Pledged Securities" means the Pledged Trust Preferred Securities and the Pledged Treasury Securities, collectively. "Pledged Series A Trust Preferred Securities" means Series A Trust Preferred Securities and security entitlements with respect thereto from time to time credited to the Series A Collateral Account and not then released from the Pledge. "Pledged Series B Trust Preferred Securities" means Series B Trust Preferred Securities and security entitlements with respect thereto from time to time credited to the Series B Collateral Account and not then released from the Pledge. "Pledged Trust Preferred Securities" means the Pledged Series A Trust Preferred Securities and the Pledged Series B Trust Preferred Securities. "Pledged Series A Treasury Securities" means Treasury Securities and security entitlements with respect thereto maturing on the Applicable Remarketing Settlement Date for the Pledged Series A Trust Preferred Securities from time to time credited to the Series A Collateral Account and not then released from the Pledge. "Pledged Series B Treasury Securities" means Treasury Securities and security entitlements with respect thereto maturing on the Applicable Remarketing Settlement Date for 4 the Pledged Series B Trust Preferred Securities from time to time credited to the Series B Collateral Account and not then released from the Pledge. "Pledged Treasury Securities" means the Pledged Series A Treasury Securities and/or the Pledged Series B Treasury Securities, as the context requires. "Proceeds" has the meaning ascribed thereto in Section 9-102(a)(64) of the UCC and includes, without limitation, all interest, dividends, cash, instruments, securities, financial assets and other property received, receivable or otherwise distributed upon the sale (including, without limitation, the Remarketing), exchange, collection or disposition of any financial assets from time to time held in a Collateral Account. "Reset Rate", in respect of either series of Trust Preferred Securities, has the meaning set forth in the Trust Agreement under which such series was issued. "Securities Intermediary" means the Person named as the "Securities Intermediary" in the first paragraph of this Agreement until a successor Securities Intermediary shall have become such pursuant to the applicable provisions of this Agreement, and thereafter "Securities Intermediary" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. "Series A Collateral Account" means the securities account of JPMorgan Chase Bank, National Association, as Collateral Agent, maintained by the Securities Intermediary and designated "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series A." "Series B Collateral Account" means the securities account of JPMorgan Chase Bank, National Association, as Collateral Agent, maintained by the Securities Intermediary and designated "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series B." "Series A Trust Preferred Securities" has the meaning set forth in the recitals hereto. "Series B Trust Preferred Securities" has the meaning set forth in the recitals hereto. "Settlement Rate" has the meaning set forth in Section 5.01(a) of the Stock Purchase Contract Agreement. "Stated Amount" means (i) $25 prior to the Initial Stock Purchase Date and (ii) $12.50 thereafter. "Stock Purchase Contract" has the meaning specified in the second paragraph of the recitals of this Agreement. 5 "Stock Purchase Contract Agent" means the Person named as the "Stock Purchase Contract Agent" in the first paragraph of this Agreement until a successor Stock Purchase Contract Agent shall have become such pursuant to the applicable provisions of the Stock Purchase Contract Agreement, and thereafter "Stock Purchase Contract Agent" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. "Stock Purchase Contract Agreement" has the meaning specified in the first paragraph of the recitals of this Agreement. "Subsequent Stock Purchase Date" has the meaning set forth in the Stock Purchase Contract Agreement. "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 (i) in the case of certificated securities in registered form, delivery as provided in Section 8-301(a) of the UCC, endorsed to the transferee or in blank by an effective endorsement, (ii) in the case of Treasury Securities, registration of the transferee as the owner of such Treasury Securities on Trades and (iii) in the case of security entitlements, including, without limitation, security entitlements with respect to Treasury Securities, a securities intermediary indicating by book entry that such security entitlement has been credited to the transferee's securities account. "Trust Agreement" means each of the Amended and Restated Declarations of Trust, dated as of the date hereof, among the Company, as Sponsor, the Property Trustee, the Delaware Trustee and the Administrative Trustees (each as named therein) and the several Holders (as defined therein) relating to MetLife Capital Trust II and MetLife Capital Trust III. "UCC" means the Uniform Commercial Code as in effect in the State of New York from time to time. "Value" means, with respect to any item of Collateral on any date, as to (1) Cash, the face amount thereof, (2) Trust Preferred Securities, the aggregate liquidation amount thereof and (3) Treasury Securities, the aggregate principal amount thereof. ARTICLE II PLEDGE SECTION 2.01. Pledge. Each Holder, acting through the Stock Purchase Contract Agent as such Holder's attorney-in-fact, and the Stock Purchase Contract Agent, acting solely as such attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent of and for the benefit of the 6 Company, a continuing first priority security interest in and to, and a lien upon and right of set-off against, all of such Person's right, title and interest in and to the Collateral to secure the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourses afforded to the Collateral Agent by this Agreement. SECTION 2.02. Control. The Collateral Agent shall have control of the Series A Collateral Account and the Series B Collateral Account pursuant to the provisions of Article IV of this Agreement. SECTION 2.03. Termination. As to each Holder, this Agreement and the Pledge created hereby shall terminate upon the satisfaction of such Holder's Obligations. Upon receipt of notice from the Stock Purchase Contract Agent of such termination, the Collateral Agent shall, except as otherwise provided herein, instruct the Securities Intermediary to Transfer such Holder's portion of the Collateral to the Stock Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. ARTICLE III DISTRIBUTIONS ON PLEDGED COLLATERAL SECTION 3.01. Income and Distributions. The Collateral Agent shall transfer to the Stock Purchase Contract Agent for distribution to the applicable Holders as provided in the Stock Purchase Contracts or Stock Purchase Contract Agreement all income and distributions received by the Collateral Agent on account of (i) the Pledged Series A Trust Preferred Securities or Permitted Investments from time to time held in the Series A Collateral Account and (ii) the Pledged Series B Trust Preferred Securities or Permitted Investments from time to time held in the Series B Collateral Account. SECTION 3.02. Payments Following Termination Event. Following a Termination Event, the Collateral Agent shall transfer all payments of liquidation amounts or principal it receives, if any, in respect of (1) the Pledged Trust Preferred Securities and (2) the Pledged Treasury Securities, to the Stock Purchase Contract Agent for the benefit of the applicable Holders for distribution to such Holders in accordance with their respective interests, free and clear of the Pledge created hereby. SECTION 3.03. Payments Prior to or on Stock Purchase Date. (a) Subject to the provisions of Section 5.06, and except as provided in Section 3.03(b) and Section 3.03(c) below, if no Termination Event shall have occurred, 7 (b) all payments of liquidation amounts or principal received by the Securities Intermediary in respect of (x) the Pledged Series A Trust Preferred Securities and (y) the Pledged Series A Treasury Securities shall be held in the Series A Collateral Account and invested in Permitted Investments until the Initial Stock Purchase Date; (c) the Pledged Series A Trust Preferred Securities and the Pledged Series A Treasury Securities shall be transferred to the Company on the Initial Stock Purchase Date as provided in Section 5.07 hereof. Any balance remaining in the Series A Collateral Account on the Initial Stock Purchase Date shall be released from the Pledge by the Collateral Agent, and the Collateral Agent shall instruct the Securities Intermediary to, and the Securities Intermediary shall, Transfer to the Stock Purchase Contract Agent such balance for the benefit of the applicable Holders for distribution to such Holders in accordance with their respective interests, free and clear of the Pledge created thereby; (d) all payments of liquidation amounts or principal received by the Securities Intermediary in respect of (x) the Pledged Series B Trust Preferred Securities and (y) the Pledged Series B Treasury Securities shall be held in the Series B Collateral Account and invested in Permitted Investments until the Subsequent Stock Purchase Date; (e) the Pledged Series B Trust Preferred Securities and the Pledged Series B Treasury Securities shall be transferred to the Company on the Subsequent Stock Purchase Date as provided in Section 5.07 hereof. Any balance remaining in the Series B Collateral Account on the Subsequent Stock Purchase Date shall be released from the Pledge by the Collateral Agent, and the Collateral Agent shall instruct the Securities Intermediary to, and the Securities Intermediary shall, Transfer to the Stock Purchase Contract Agent such balance for the benefit of the applicable Holders for distribution to such Holders in accordance with their respective interests, free and clear of the Pledge created thereby; (f) The Company shall instruct the Collateral Agent in writing as to the Permitted Investments in which any payments made under this Section 3.03(a) shall be invested; provided, however, that if the Company fails to deliver such instructions by 10:30 a.m. (New York City time) on the day such payments are received by the Collateral Agent, the Collateral Agent shall invest such payments in the Permitted Investments as described in clause (6) of the definition of Permitted Investments. The Collateral Agent shall have no liability in respect of losses incurred as a result of the failure of the Company to provide written investment direction. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to act under this Section 3.03 pursuant to any direction of the Company and neither the Collateral Agent nor the Securities Intermediary shall in any way be liable for the selection of Permitted Investments or by reason of any insufficiency in a Collateral Account resulting from any loss on any Permitted Investment included therein. (g) All payments of liquidation amounts or principal received by the Securities Intermediary in respect of (1) the Trust Preferred Securities and (2) the 8 Treasury Securities or security entitlements thereto, that, in each case, have been released from a Pledge pursuant hereto shall be transferred to the Stock Purchase Contract Agent for the benefit of the applicable Holders for distribution to such Holders in accordance with their respective interests. (h) In the event of a Failed Remarketing (other than a Final Failed Remarketing) with respect to the Series A Trust Preferred Securities, principal payments received by the Securities Intermediary in respect of the Pledged Series A Treasury Securities shall be invested in Treasury Securities maturing on the next Applicable Remarketing Settlement Date for the Series A Trust Preferred Securities in a principal amount equal to the aggregate stated amount of the related Stripped Common Equity Units, which Treasury Securities shall be considered Pledged Series A Treasury Securities for the purpose of this Agreement. The Collateral Agent shall remit any remaining funds, after application of principal payments received in respect of Series A Treasury Securities to purchase new Series A Treasury Securities, to the Stock Purchase Contract Agent who shall remit such funds to the Holders of the related Stripped Common Equity Units on a pro rata basis. (d) In the event of a Failed Remarketing (other than a Final Failed Remarketing) with respect to the Series B Trust Preferred Securities, principal payments received by the Securities Intermediary in respect of the Pledged Series B Treasury Securities shall be invested in Treasury Securities maturing on the next Applicable Remarketing Settlement Date for the Series B Trust Preferred Securities in a principal amount equal to the aggregate stated amount of the related Stripped Common Equity Units, which Treasury Securities shall be considered Pledged Series B Treasury Securities for the purpose of this Agreement. The Collateral Agent shall remit any remaining funds, after application of principal payments received in respect of Series B Treasury Securities to purchase new Series B Treasury Securities, to the Stock Purchase Contract Agent who shall remit such funds to the Holders of the related Stripped Common Equity Units on a pro rata basis. SECTION 3.04. Payments to Stock Purchase Contract Agent. The Securities Intermediary shall use commercially reasonable efforts to deliver payments to the Stock Purchase Contract Agent hereunder, to the extent it has received the same, to the account designated by the Stock Purchase Contract Agent for such purpose not later than 11:00 a.m. (New York City time) on the Business Day such payment is received by the Securities Intermediary; provided, however, that if such payment is received by the Securities Intermediary on a day that is not a Business Day or after 10:00 a.m. (New York City time) on a Business Day, then the Securities Intermediary shall use commercially reasonable efforts to deliver such payment to the Stock Purchase Contract Agent no later than 10:30 a.m. (New York City time) on the next succeeding Business Day. Notwithstanding the foregoing, if the Securities Intermediary is required to deliver payments to the Stock Purchase Contract Agent on a Business Day that is in the next calendar year, then the Securities Intermediary shall use commercially reasonable efforts to deliver such payment to the Stock Purchase Contract Agent no later than 10:30 am (New York City time) on the immediately preceding Business Day; provided that such payment is received by the Securities Intermediary on or before 9:00 am (New York City time) on that Business Day. 9 SECTION 3.05. Assets Not Properly Released. If the Stock Purchase Contract Agent or any Holder shall receive any principal payments on account of financial assets credited to either Collateral Account and not released therefrom in accordance with this Agreement, the Stock Purchase Contract Agent or such Holder shall hold the same as trustee of an express trust for the benefit of the Company and, upon receipt of an Officers' Certificate of the Company so directing, promptly deliver the same to the Securities Intermediary for credit to the applicable Collateral Account or to the Company for application to the Obligations of the Holders, and the Stock Purchase Contract Agent and Holders shall acquire no right, title or interest in any such payments of principal amounts so received. The Stock Purchase Contract Agent shall have no liability under this Section 3.05 unless and until it has been notified in writing that such payment was delivered to it erroneously and shall have no liability for any action taken, suffered or omitted to be taken prior to its receipt of such notice. ARTICLE IV CONTROL SECTION 4.01. Establishment of Collateral Account. The Securities Intermediary hereby confirms that: (a) the Securities Intermediary has established the Series A Collateral Account and the Series B Collateral Account and its records identify the Collateral Agent as the sole person having a securities entitlement against the Securities Intermediary with respect to each such Collateral Account; (b) each of the Series A Collateral Account and the Series B Collateral Account is a securities account; (c) subject to the terms of this Agreement, the Securities Intermediary shall identify in its records the Collateral Agent as the entitlement Holder entitled to exercise the rights that comprise any financial asset credited to the Series A Collateral Account or the Series B Collateral Account; (d) all property delivered to the Securities Intermediary pursuant to this Agreement or the Stock Purchase Contract Agreement, including any Permitted Investments, will be credited promptly to the applicable Collateral Account; and (e) all securities or other property underlying any financial assets credited to a Collateral Account shall be (i) registered in the name of the Stock Purchase Contract Agent and endorsed to the Securities Intermediary or in blank, (ii) registered in the name of the Securities Intermediary or (iii) credited to another securities account maintained in the name of the Securities Intermediary. In no case will any financial asset credited to a Collateral Account be registered in the name of the Stock Purchase Contract Agent or any Holder or specially endorsed to the Stock Purchase Contract Agent or any Holder unless such financial asset has been further endorsed to the Securities Intermediary or in blank. 10 SECTION 4.02. Treatment as Financial Assets. Each item of property (whether investment property, financial asset, security, instrument or cash) credited to a Collateral Account shall be treated as a financial asset. SECTION 4.03. Sole Control by Collateral Agent. Except as provided in Section 6.01, at all times prior to the termination of the Pledge, the Collateral Agent shall have sole control of each Collateral Account, and the Securities Intermediary shall take instructions and directions with respect to each Collateral Account solely from the Collateral Agent. If at any time the Securities Intermediary shall receive an entitlement order issued by the Collateral Agent and relating to a Collateral Account, the Securities Intermediary shall comply with such entitlement order without further consent by the Stock Purchase Contract Agent or any Holder or any other Person. Except as otherwise permitted under this Agreement, until termination of the Pledge, the Securities Intermediary will not comply with any entitlement orders issued by the Stock Purchase Contract Agent or any Holder. SECTION 4.04. Securities Intermediary's Location. The Series A Collateral Account, the Series B Collateral Account, and the rights and obligations of the Securities Intermediary, the Collateral Agent, the Stock Purchase Contract Agent and the Holders with respect thereto, shall be governed by the laws of the State of New York. Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the Securities Intermediary's jurisdiction. SECTION 4.05. No Other Claims. Except for the claims and interest of the Collateral Agent and of the Stock Purchase Contract Agent and the Holders in the Series A Collateral Account and the Series B Collateral Account, the Securities Intermediary (without having conducted any investigation) does not know of any claim to, or interest in, the Series A Collateral Account or the Series B Collateral Account or in any financial asset credited thereto. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Series A Collateral Account or the Series B Collateral Account or in any financial asset carried therein, the Securities Intermediary will promptly notify the Collateral Agent and the Stock Purchase Contract Agent. SECTION 4.06. Investment and Release. All proceeds of financial assets from time to time deposited in the Series A Collateral Account or the Series B Collateral Account shall be invested and reinvested as provided in this Agreement. At no time prior to termination of the Pledge with respect to any particular property shall such property be released from the Series A Collateral Account or the Series B Collateral Account except in accordance with this Agreement or upon written instructions of the Collateral Agent. SECTION 4.07. Statements and Confirmations. 11 The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Series A Collateral Account or the Series B Collateral Account and any financial assets credited thereto simultaneously to each of the Stock Purchase Contract Agent, the Company and the Collateral Agent at their addresses for notices under this Agreement. SECTION 4.08. Tax Allocations. The Stock Purchase Contract Agent shall perform all customary tax reporting with respect to all items of income, gain, expense and loss recognized in the Series A Collateral Account and the Series B Collateral Account, to the extent such reporting is required bylaw, to the Internal Revenue Service authorities in the manner required by law. None of the Securities Intermediary, the Custodial Agent or the Collateral Agent shall have any tax reporting duties hereunder. SECTION 4.09. No Other Agreements. The Securities Intermediary has not entered into, and prior to the termination of the Pledge will not enter into, any agreement with any other Person relating to the Series A Collateral Account or the Series B Collateral Account or any financial assets credited thereto, including, without limitation, any agreement to comply with entitlement orders of any Person other than the Collateral Agent. SECTION 4.10. Powers Coupled with an Interest. The rights and powers granted in this Article IV to the Collateral Agent have been granted in order to perfect its security interests in the Series A Collateral Account and the Series B Collateral Account, are powers coupled with an interest and will be affected neither by the bankruptcy of the Stock Purchase Contract Agent or any Holder nor by the lapse of time. The obligations of the Securities Intermediary under this Article IV shall continue in effect until the termination of the Pledge with respect to any and all Collateral. SECTION 4.11. Waiver of Lien; Waiver of Set-off. The Securities Intermediary waives any security interest, lien or right to make deductions or set- offs that it may now have or hereafter acquire in or with respect to the Series A Collateral Account or the Series B Collateral Account, any financial asset credited thereto or any security entitlement in respect thereof. Neither the financial assets credited to the Series A Collateral Account or the Series B Collateral Account nor the security entitlements in respect thereof will be subject to deduction, set-off, banker's lien or any other right in favor of any person other than the Company. ARTICLE V INITIAL DEPOSIT; CREATION OF STRIPPED COMMON EQUITY UNITS AND RECREATION OF NORMAL COMMON EQUITY UNITS SECTION 5.01. Initial Deposit of Trust Preferred Securities. 12 (a) Prior to or concurrently with the execution and delivery of this Agreement, the Stock Purchase Contract Agent, on behalf of the initial Holders of the Normal Common Equity Units, shall Transfer to the Collateral Agent, for credit to the Series A Collateral Account, the Series A Trust Preferred Securities or security entitlements relating thereto, and, for credit to the Series B Collateral Account, the Series B Trust Preferred Securities or security entitlements relating thereto and, the Securities Intermediary shall thereupon indicate by book-entry that such Trust Preferred Securities, regardless of whether received by the Securities Intermediary in the form of certified securities effectively indorsed in blank or as security entitlements, have been credited to the applicable Collateral Account. (b) The Securities Intermediary may, at any time or from time to time, cause any or all securities or other property underlying any financial assets credited to the Series A Collateral Account or the Series B Collateral Account to be registered in the name of the Securities Intermediary, the Collateral Agent or their respective nominees; provided, however, that unless any Event of Default (defined in the Trust Agreement relating to the relevant series of Trust Preferred Securities) shall have occurred and be continuing, the Securities Intermediary agrees not to cause any Trust Preferred Securities to be so re-registered. SECTION 5.02. Creation of Stripped Common Equity Units. (a) A Holder of Normal Common Equity Units shall have the right, at any time on or prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding any Applicable Remarketing Settlement Date, to create Stripped Common Equity Units by substitution of Treasury Securities or security entitlements with respect thereto for the Pledged Series A Trust Preferred Securities (if any) and Pledged Series B Trust Preferred Securities then comprising a part of all or a portion of such Holder's Normal Common Equity Units, in integral multiples of 80 Normal Common Equity Units, by: (A) Transferring to the Stock Purchase Contract Agent, for further Transfer to the Securities Intermediary for credit to the Collateral Account, Series A Treasury Securities or security entitlements with respect thereto having a Value equal to the aggregate liquidation amount of the Pledged Series A Trust Preferred Securities (if any) to be released and Series B Treasury Securities or security entitlements with respect thereto having a Value equal to the aggregate liquidation amount of the Pledged Series B Trust Preferred Securities to be released, accompanied by a notice, substantially in the form of Exhibit C to the Stock Purchase Contract Agreement, whereupon the Stock Purchase Contract Agent shall deliver to the Collateral Agent a notice, substantially in the form of Exhibit A hereto, (A) stating that such Holder has notified the Stock Purchase Contract Agent that such Holder has Transferred Treasury Securities or security entitlements with respect thereto to the Stock Purchase Contract Agent for further Transfer to the Securities Intermediary for credit to the applicable Collateral Account, (B) stating the Value of the Treasury Securities or security entitlements with respect thereto Transferred by such Holder and (C) requesting that the Collateral Agent instruct the Securities Intermediary to accept such Transfer of Treasury Securities and to release 13 from the Pledge to the Stock Purchase Contract Agent as attorney-in-fact of the such Holder an equal Value of Pledged Series A Trust Preferred Securities (if any) and an equal Value of Pledged Series B Trust Preferred Securities that are then a component of such Normal Common Equity Units; and (B) delivering the related Normal Common Equity Units to the Stock Purchase Contract Agent. Upon receipt of such notice, giving of instructions to the Securities Intermediary that such Transfer be accepted and confirmation that Treasury Securities or security entitlements with respect thereto have been credited to the Series A Collateral Account (if applicable) and Series B Collateral Account as described in such notice, the Collateral Agent shall instruct the Securities Intermediary by a notice, substantially in the form of Exhibit B hereto, to release such Pledged Series A Trust Preferred Securities (if any) and Pledged Series B Trust Preferred Securities from the Pledge by Transfer to the Stock Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. (b) Upon credit to the Series A Collateral Account (if applicable) of Series A Treasury Securities and to the Series B Collateral Account of Series B Treasury Securities or security entitlements with respect thereto delivered by a Holder of Normal Common Equity Units and receipt of the related instruction from the Collateral Agent, the Securities Intermediary shall release the Pledged Series A Trust Preferred Securities (if any) and Pledged Series B Trust Preferred Securities from the Pledge and shall promptly Transfer the same to the Stock Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. SECTION 5.03. Recreation of Normal Common Equity Units. (a) At any time on or prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding any Applicable Remarketing Settlement Date, a Holder of Stripped Common Equity Units shall have the right to recreate Normal Common Equity Units by substitution of Trust Preferred Securities or security entitlements with respect thereto for Pledged Treasury Securities in integral multiples of 80 Stripped Common Equity Units by: (A) Transferring to the Stock Purchase Contract Agent for further Transfer to the Securities Intermediary, for credit to the Series A Collateral Account, Series A Trust Preferred Securities or security entitlements with respect thereto having an aggregate liquidation amount equal to the Value of the Pledged Series A Treasury Securities (if any) to be released, and Transferring to the Stock Purchase Contract Agent for further Transfer to the Securities Intermediary, for credit to the Series B Collateral Account, Series B Trust Preferred Securities or security entitlements with respect thereto having an aggregate liquidation amount equal to the Value of the Pledged Series B Treasury Securities to be released, accompanied by a notice, substantially in the form of Exhibit C to the Stock Purchase Contract Agreement, whereupon the Stock Purchase Contract Agent shall deliver to the Collateral Agent a notice, substantially in the form of Exhibit C hereto, stating that such Holder has Transferred the Series A Trust Preferred Securities or 14 security entitlements with respect thereto to the Stock Purchase Contract Agent for further Transfer to the Securities Intermediary for credit to the Series A Collateral Account and has Transferred the Series B Trust Preferred Securities or security entitlements with respect thereto to the Securities Intermediary for credit to the Series B Collateral Account and requesting that the Collateral Agent instruct the Securities Intermediary accept such Transfer and to release from the Pledge to the Stock Purchase Contract Agent an Equal Value of the Pledged Series A Treasury Securities and Pledged Series B Treasury Securities related to such Stripped Common Equity Units; and (B) delivering the related Stripped Common Equity Units to the Stock Purchase Contract Agent. Upon receipt of such notice, the giving of instructions to the Securities Intermediary that such Transfer be accepted and confirmation that Series A Trust Preferred Securities or security entitlements with respect thereto have been credited to the Series A Collateral Account and Series B Trust Preferred Securities or security entitlements with respect thereto have been credited to the Series B Collateral Account as described in such notice, the Collateral Agent shall instruct the Securities Intermediary by a notice substantially in the form of Exhibit D hereto to release such Pledged Series A Treasury Securities and Pledged Series B Treasury Securities from the Pledge by Transfer to the Stock Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. (b) Upon credit to the Collateral Account of Trust Preferred Securities or security entitlements with respect thereto delivered by a Holder of Stripped Common Equity Units and receipt of the related instruction from the Collateral Agent, the Securities Intermediary shall release such Pledged Treasury Securities from the Pledge and shall promptly Transfer the same to the Stock Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. SECTION 5.04. Termination Event. (a) Upon receipt by the Collateral Agent of written notice from the Company or the Stock Purchase Contract Agent that a Termination Event has occurred, the Collateral Agent shall release all Collateral from the Pledge and shall promptly instruct the Securities Intermediary to Transfer: (A) any Pledged Trust Preferred Securities or security entitlements with respect thereto; (B) any Pledged Treasury Securities or security entitlements with respect thereto; and (C) any payments by Holders (or the Permitted Investments of such payments) pursuant to Section 5.05 hereof, to the Stock Purchase Contract Agent for the benefit of the Holders for distribution to such Holders, in accordance with their respective interests, free and clear of the Pledge created hereby. 15 (b) 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 Trust Preferred Securities, Pledged Treasury Securities and payments by Holders (or the Permitted Investments of such payments) pursuant to Section 5.05 and Proceeds of any of the foregoing, as the case may be, as provided by this Section 5.04, the Stock Purchase Contract Agent shall: (A) use its best efforts to obtain an opinion of a nationally recognized law firm to the effect that, notwithstanding the Company 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 5.04 and shall deliver or cause to be delivered such opinion to the Collateral Agent within ten days after the occurrence of such Termination Event, and if (A) the Stock Purchase Contract Agent shall be unable to obtain such opinion within ten days after the occurrence of such Termination Event or (B) the Collateral Agent shall continue, after delivery of such opinion, to refuse to effectuate the release and Transfer of all Pledged Trust Preferred Securities, Pledged Treasury Securities and the payments by Holders (or the Permitted Investments of such payments) pursuant to Section 5.05 hereof and Proceeds of any of the foregoing, as the case may be, as provided in this Section 5.04, then the Stock Purchase Contract Agent shall, upon receipt of instructions in accordance with the Stock Purchase Contract Agreement, within fifteen days after the occurrence of such Termination Event commence an action or proceeding in the court having 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 Trust Preferred Securities, Pledged Treasury Securities and the payments by Holders (or the Permitted Investments of such payments) pursuant to Section 5.05 hereof and Proceeds of any of the foregoing, or as the case may be, as provided by this Section 5.04; or (B) upon receipt of instructions in accordance with the Stock Purchase Contract Agreement, commence an action or proceeding like that described in Section 5.04(b)(i) hereof within ten days after the occurrence of such Termination Event. SECTION 5.05. Cash Settlement. (a) Upon (1) receipt by the Collateral Agent of a notice from the Stock Purchase Contract Agent promptly after the receipt by the Stock Purchase Contract Agent of a notice from a Holder of Normal Common Equity Units that such Holder has elected, in accordance with the procedures specified in Section 5.02(b)(i) of the Stock Purchase Contract Agreement, to effect a Cash Settlement and (2) receipt from such Holder by the Securities Intermediary for credit to the applicable Collateral Account on or prior to 5:00 p.m. (New York City time) on the fourth Business Day immediately preceding the applicable Stock Purchase Date of the applicable Purchase Price in lawful money of the United States by certified or cashier's check or wire transfer of immediately available funds payable to or upon the order of the Securities Intermediary, then the Collateral Agent shall instruct the Securities Intermediary promptly to invest any such Cash in Permitted Investments maturing on the Stock Purchase Date. 16 The Company shall instruct the Collateral Agent in writing as to the Permitted Investments in which any such Cash shall be invested; provided, however, that if the Company fails to deliver such written instructions by 10:30 a.m. (New York City time) on the day such Cash is received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral Agent shall instruct the Securities Intermediary to invest such Cash in the Permitted Investments described in clause (6) of the definition of Permitted Investments. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to act under this Section 5.05 pursuant to any direction of the Company and in no event shall the Collateral Agent or Securities Intermediary be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability with respect to losses incurred as a result of the failure of the Company to provide written investment direction. In the event of a Successful Remarketing, upon receipt of Proceeds upon the maturity of the Permitted Investments on a Stock Purchase Date, the Collateral Agent shall (A) instruct the Securities Intermediary to pay the portion of such Proceeds and deliver any certified or cashier's checks received, in an aggregate amount equal to the Purchase Price, to the Company on the Stock Purchase Date, and (B) release any amounts in excess of the Purchase Price earned from such Permitted Investments to the Stock Purchase Contract Agent for distribution to the Holders in accordance with the Stock Purchase Contract Agreement. (b) If a Holder of Normal Common Equity Units (i) fails to notify the Stock Purchase Contract Agent of its intention to make a Cash Settlement as provided in Section 5.02(b)(i) of the Stock Purchase Contract Agreement or (ii) does notify the Stock Purchase Contract Agent of its intention to pay the Purchase Price in cash, but fails to make such payment as required by Section 5.02(b)(ii) of the Stock Purchase Contract Agreement, such Holder shall be deemed to have consented to the disposition of such Holder's Pledged Trust Preferred Securities in accordance with Section 5.02(b)(iii) of the Stock Purchase Contract Agreement. (c) As soon as practicable after 5:00 p.m. (New York City time) on the fourth Business Day immediately preceding the applicable Stock Purchase Date, the Collateral Agent shall deliver to the Stock Purchase Contract Agent a notice, substantially in the form of Exhibit E hereto, stating (i) the amount of Cash that it has received with respect to the Cash Settlement of Normal Common Equity Units and (ii) the amount of Pledged Trust Preferred Securities to be remarketed in the applicable Remarketing pursuant to Section 5.02(a) of the Stock Purchase Contract Agreement, of the series that is to be remarketed in the applicable Remarketing. (d) In the event of a Failed Remarketing, the Collateral Agent shall (i) promptly return the Cash that it has received with respect to the Cash Settlement of Normal Common Equity Units to the Stock Purchase Contract Agent for distribution to Holders who elected to effect a Cash Settlement and (ii) as soon as practicable after 5:00 p.m. (New York City time) on the Business Day immediately preceding the applicable Stock Purchase Date, deliver to the Stock Purchase Contract Agent a notice, stating (A) the amount of Cash that it has received and returned with respect to the Cash Settlement of Normal Common Equity Units and (B) the amount of Pledged Trust 17 Preferred Securities of the series subject to the Failed Remarketing in the Collateral Account. (e) In the event of a Successful Remarketing, the Collateral Agent shall (i) instruct the Securities Intermediary to release from the Pledge such Holder's related Pledged Trust Preferred Securities of the series subject to the Successful Remarketing as to which such Holder has effected a Cash Settlement pursuant to Section 5.05(a), and (ii) instruct the Securities Intermediary to Transfer all such Pledged Trust Preferred Securities of the series subject to the Successful Remarketing to the Stock Purchase Contract Agent for distribution to such Holder free and clear of the Pledge created hereby. SECTION 5.06. Early Settlement and Cash Merger Early Settlement. Upon receipt by the Collateral Agent of a notice from the Stock Purchase Contract Agent that a Holder of Common Equity Units has elected to effect either (i) Early Settlement of its obligations under the Stock Purchase Contracts forming a part of such Common Equity Units in accordance with the terms of the Stock Purchase Contracts and Section 5.07 of the Stock Purchase Contract Agreement or (ii) Cash Merger Early Settlement of its obligations under the Stock Purchase Contracts forming a part of such Common Equity Units in accordance with the terms of the Stock Purchase Contracts and Section 5.04(b)(ii) of the Stock Purchase Contract Agreement (which notice shall set forth the number of such Stock Purchase Contracts as to which such Holder has elected to effect Early Settlement or Cash Merger Early Settlement), and that the Stock Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price pursuant to the terms of the Stock Purchase Contracts and the Stock Purchase Contract Agreement, then the Collateral Agent shall release from the Pledge, (1) Pledged Trust Preferred Securities in the case of a Holder of Normal Common Equity Units or (2) Pledged Treasury Securities, in the case of a Holder of Stripped Common Equity Units, in each case with a Value equal to the product of (x) the Stated Amount times (y) the number of Stock Purchase Contracts as to which such Holder has elected to effect Early Settlement or Cash Merger Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Trust Preferred Securities or Pledged Treasury Securities, as the case may be, to the Stock Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby. A holder of Stripped Common Equity Units may settle early only in integral multiples of 80 Stripped Common Equity Units, and a Holder of Normal Common Equity Units may settle early only in integral multiples of 80 Normal Common Equity Units. SECTION 5.07. Application of Proceeds in Settlement of Stock Purchase Contracts. (a) If a Holder of Normal Common Equity Units has not elected to make an effective Cash Settlement by notifying the Stock Purchase Contract Agent in the manner provided for in Section 5.02(b)(i) of the Stock Purchase Contract Agreement or does notify the Stock Purchase Contract Agent as provided in paragraph 5.02(b)(i) of the Stock Purchase Contract Agreement of its intention to pay the Purchase Price in Cash, but fails to make such payment as required by paragraph 5.02(b)(ii) of the Stock Purchase 18 Contract Agreement, such Holder shall be deemed to have elected to pay for the shares of Common Stock to be issued under such Stock Purchase Contracts from the Proceeds of the Remarketing of the related Pledged Trust Preferred Securities. In the event of a Successful Remarketing, the Collateral Agent shall instruct the Securities Intermediary to Transfer the related Pledged Trust Preferred Securities to the Remarketing Agent, upon confirmation of deposit by the Remarketing Agent of the Proceeds of such Successful Remarketing (less, to the extent permitted by the Remarketing Agreement, the Remarketing Fee) in the Collateral Account. The Collateral Agent shall instruct the Securities Intermediary to invest the Proceeds of the Successful Remarketing in Permitted Investments set forth in clause (6) of the definition of Permitted Investments. On the Stock Purchase Date, the Collateral Agent shall instruct the Securities Intermediary to remit a portion of the Proceeds from such Successful Remarketing equal to the aggregate liquidation amount of such Pledged Trust Preferred Securities to satisfy in full such Holder's obligations to pay the Purchase Price to purchase the shares of Common Stock under the related Stock Purchase Contracts and to remit the balance of the Proceeds from the Successful Remarketing, if any, to the Stock Purchase Contract Agent for distribution to such Holder. In the event of a Final Failed Remarketing with respect to the Series A Trust Preferred Securities, the Collateral Agent, for the benefit of the Company, will, at the written instruction of the Company, deliver or dispose of the Pledged Series A Trust Preferred Securities in accordance with the Company's written instructions to satisfy in full, from any such disposition or retention, such Holders' obligations to pay the Purchase Price for the shares of Common Stock to be issued on the Initial Stock Purchase Date under the Stock Purchase Contracts underlying such Normal Common Equity Units. Thereafter, the Collateral Agent shall promptly remit the Proceeds in excess of the aggregate Purchase Price for the shares of Common Stock to be issued on the Initial Stock Purchase Date under such Stock Purchase Contracts to the Stock Purchase Contract Agent for payment to the Holders of the Normal Common Equity Units to which such Series A Trust Preferred Securities relate. In the event of a Final Failed Remarketing with respect to the Series B Trust Preferred Securities, the Collateral Agent, for the benefit of the Company, will, at the written instruction of the Company, deliver or dispose of the Pledged Series B Trust Preferred Securities in accordance with the Company's written instructions to satisfy in full, from any such disposition or retention, such Holders' obligations to pay the Purchase Price for the shares of Common Stock to be issued on the Subsequent Stock Purchase Date under the Stock Purchase Contracts underlying such Normal Common Equity Units. Thereafter, the Collateral Agent shall promptly remit the Proceeds in excess of the aggregate Purchase Price for the shares of Common Stock to be issued on the Subsequent Stock Purchase Date under such Stock Purchase Contracts to the Stock Purchase Contract Agent for payment to the Holders of the Normal Common Equity Units to which such Series B Trust Preferred Securities relate. (b) A Holder of a Stripped Common Equity Unit shall be deemed to have elected to pay for the shares of Common Stock to be issued under the Stock Purchase Contract underlying the Stripped Common Equity Unit from the Proceeds of the related Pledged Treasury Securities. Without receiving any instruction from any Holder, the Collateral Agent shall instruct the Securities Intermediary (i) to remit the Proceeds of the 19 related Pledged Series A Treasury Securities to the Company in settlement of such Stock Purchase Contracts on the Initial Stock Purchase Date and (ii) to remit the Proceeds of the related Pledged Series B Treasury Securities to the Company in settlement of such Stock Purchase Contracts on the Subsequent Stock Purchase Date. In the event the sum of the Proceeds from the related Pledged Treasury Securities exceeds the aggregate Purchase Price of the Stock Purchase Contracts being settled thereby, the Collateral Agent shall instruct the Securities Intermediary to transfer such excess, when received, to the Stock Purchase Contract Agent for distribution to Holders. (c) On or prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding an applicable Remarketing Date, but no earlier than the Payment Date immediately preceding such date, Holders of Separate Trust Preferred Securities of the series of Trust Preferred Securities that is the subject of a remarketing may elect to have their Separate Trust Preferred Securities remarketed under the Remarketing Agreement, by delivering their Separate Trust Preferred Securities along with a notice of such election, substantially in the form of Exhibit F hereto, to the Collateral Agent, acting as Custodial Agent. Any such notice and delivery may not be conditioned upon the level at which the Reset Rate for either series of Trust Preferred Securities is established in the Remarketing or any other condition. The Custodial Agent, shall hold Separate Trust Preferred Securities in an account separate from the applicable Collateral Account in which the Pledged Securities shall be held. Holders of Separate Trust Preferred Securities electing to have their Separate Trust Preferred Securities remarketed will also have the right to withdraw that election by written notice to the Collateral Agent, substantially in the form of Exhibit G hereto, on or prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Remarketing Date, upon which notice the Custodial Agent shall return such Separate Trust Preferred Securities to such Holder. After such time, such election shall become an irrevocable election to have such Separate Trust Preferred Securities remarketed in such Remarketing. Promptly after 11:00 a.m. (New York City time) on the Business Day immediately preceding the applicable Remarketing Date, the Custodial Agent shall notify the Remarketing Agent of the aggregate liquidation amount of the Separate Trust Preferred Securities to be remarketed and deliver to the Remarketing Agent for remarketing all Separate Trust Preferred Securities delivered to the Custodial Agent pursuant to this Section 5.07(c) and not validly withdrawn prior to such date. In the event of a Successful Remarketing, after deducting the Remarketing Fee, the Remarketing Agent will remit to the Custodial Agent the remaining portion of the Proceeds of such Remarketing for payment to the Holders of the remarketed Separate Trust Preferred Securities, in accordance with their respective interests. In the event of a Failed Remarketing, the Remarketing Agent will promptly return such Separate Trust Preferred Securities to the Custodial Agent for distribution to the appropriate Holders. ARTICLE VI VOTING RIGHTS - - PLEDGED TRUST PREFERRED SECURITIES SECTION 6.01. Voting Rights. 20 Subject to the terms of Section 4.02 of the Stock Purchase Contract Agreement, the Stock Purchase Contract Agent may exercise, or refrain from exercising, any and all voting and other consensual rights pertaining to the Pledged Trust Preferred Securities or any part thereof for any purpose not inconsistent with the terms of this Agreement and in accordance with the terms of the Stock Purchase Contract Agreement; provided that the Stock Purchase Contract Agent shall give the Company and the Collateral Agent at least five Business 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 Trust Preferred Securities, including notice of any meeting at which holders of the Trust Preferred Securities are entitled to vote or solicitation of consents, waivers or proxies of holders of the Trust Preferred Securities, the Collateral Agent shall use reasonable efforts to send promptly to the Stock Purchase Contract Agent such notice or communication, and as soon as reasonably practicable after receipt of a written request therefore from the Stock Purchase Contract Agent, execute and deliver to the Stock Purchase Contract Agent such proxies and other instruments in respect of such Pledged Trust Preferred Securities (in form and substance satisfactory to the Collateral Agent) as are prepared by the Company and delivered to the Stock Purchase Contract Agent with respect to the Pledged Trust Preferred Securities. ARTICLE VII RIGHTS AND REMEDIES SECTION 7.01. Rights and Remedies of the Collateral Agent. (a) In addition to the rights and remedies specified in Section 5.07 hereof or otherwise available at law or in equity, after an event of default (as specified in Section 7.01(b) below) hereunder, the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where the rights and remedies are asserted) and the Trades 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. Without limiting the generality of the foregoing, such remedies may include, to the extent permitted by applicable law, (1) retention of the Pledged Trust Preferred Securities or the Pledged Treasury Securities in full satisfaction of the Holders' obligations under the Stock Purchase Contracts and the Stock Purchase Contract Agreement or (2) sale of the Pledged Trust Preferred Securities or the Pledged Treasury Securities in one or more public or private sales. (b) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, in the event the Company is unable to make payments from amounts transferred or transferable to the Company on account of the principal payments of any Pledged Treasury Securities as provided in Article III hereof, in satisfaction of the Obligations of the Holder of the Common Equity Units of which such applicable Pledged Treasury Securities are a part under the related Stock 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 any and all of the rights and remedies available to a secured 21 party under the UCC 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 liquidation amount of the Pledged Trust Preferred Securities and (ii) the principal amount of the Pledged Treasury Securities, subject, in each case, to the provisions of Article III hereof, and as otherwise granted herein. (d) The Stock Purchase Contract Agent, as attorney-in-fact of the Holders, and each Holder of Common Equity Units agrees that, from time to time, upon the written request of the Collateral Agent or the Stock Purchase Contract Agent, such Holder shall execute and deliver such further documents and do such other acts and things as 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 Stock Purchase Contract Agent shall have no liability to any Holder for executing any documents or taking any such acts requested by the Collateral Agent hereunder, except for liability for its own negligent acts, its own negligent failure to act or its own willful misconduct. SECTION 7.02. Remarketing. The Collateral Agent shall, by 11:00 a.m., New York City time, on the Business Day immediately preceding an applicable Remarketing Date, notify the Remarketing Agent of the aggregate liquidation amount of the applicable series of Pledged Trust Preferred Securities that are to be remarketed and without any instruction from any Holder of Normal Common Equity Units, present the related Pledged Trust Preferred Securities of the applicable series to the Remarketing Agent for Remarketing. In the event of a Failed Remarketing, the Trust Preferred Securities presented to the Remarketing Agent pursuant to this Section 7.02 for Remarketing shall be redeposited into the applicable Collateral Account. SECTION 7.03. Successful Remarketing. In the event of a Successful Remarketing, the Collateral Agent shall, at the written direction of the Company, instruct the Securities Intermediary to (i) Transfer the applicable Pledged Trust Preferred Securities to the Remarketing Agent upon confirmation of deposit by the Remarketing Agent of the Proceeds of such Successful Remarketing (after deducting any Remarketing Fee in accordance with the Remarketing Agreement) in the applicable Collateral Account, (ii) apply an amount equal to the aggregate Purchase Price for the shares of Common Stock to be issued under the related Stock Purchase Contracts on the applicable Stock Purchase Date in full satisfaction of such Holders' obligations to pay the Purchase Price under the related Stock Purchase Contracts, and (iii) promptly remit the remaining portion of such Proceeds to the Stock Purchase Contract Agent for payment to the Holders of Normal Common Equity Units, in accordance with their respective interests and the Stock Purchase Contract Agreement. With respect to Separate Trust Preferred Securities, any Proceeds of such Remarketing (after deducting any Remarketing Fee in accordance with the Remarketing Agreement) attributable to 22 the Separate Trust Preferred Securities will be remitted to the Custodial Agent for payment to the holders of Separate Trust Preferred Securities. In the event of a Final Failed Remarketing, the Pledged Trust Preferred Securities shall remain credited to the Collateral Account and Section 5.07 shall apply. SECTION 7.04. Substitutions. Whenever a Holder has the right to substitute Treasury Securities, Trust Preferred Securities or security entitlements for any of them, as the case may be, for financial assets held in a Collateral Account, such substitution shall not constitute a novation of the security interest created hereby. ARTICLE VIII REPRESENTATIONS AND WARRANTIES; COVENANTS SECTION 8.01. Representations and Warranties. Each Holder from time to time, acting through the Stock Purchase Contract Agent as attorney-in-fact (it being understood that the Stock Purchase Contract Agent shall not be liable for any representation or warranty made by or on behalf of a Holder), hereby represents and warrants to the Collateral Agent (with respect to such Holder's interest in the Collateral), 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 sole beneficial owner of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent for credit to an applicable Collateral Account, 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 Article II hereof; (c) upon the Transfer of the Collateral to the Collateral Agent for credit to an applicable 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 securities intermediary or other entity not within the control of the Holder involved in the Transfer of the Collateral, including the Collateral Agent and the Securities Intermediary, 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 Article IV 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 Article II hereof or violate any provision of any existing law or regulation applicable to it or of any mortgage, charge, 23 pledge, indenture, contract or undertaking to which it is a party or which is binding on it or any of its assets. SECTION 8.02. Covenants. The Holders from time to time, acting through the Stock Purchase Contract Agent as their attorney-in-fact (it being understood that the Stock 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) such Holders will not 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) such Holders will not 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 Common Equity Units. ARTICLE IX THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES INTERMEDIARY It is hereby agreed as follows: SECTION 9.01. Appointment, Powers and Immunities. The Collateral Agent, the Custodial Agent or the Securities Intermediary shall act as agent for the Company hereunder with such powers as are specifically vested in the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, by the terms of this Agreement. The Collateral Agent, the Custodial Agent and Securities Intermediary shall: (a) have no duties or responsibilities except those expressly set forth in this Agreement and no implied covenants, functions, responsibilities, duties, liabilities or obligations shall be inferred from this Agreement against the Collateral Agent, the Custodial Agent and the Securities Intermediary, nor shall the Collateral Agent, the Custodial Agent and the Securities Intermediary be bound by the provisions of any agreement by any party hereto beyond the specific terms hereof and none of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall have any fiduciary relationship to the Holders of the Common Equity Units or any other Person; (b) 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 Common Equity Units or the Stock Purchase Contract Agreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement (other than as against the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be), the Common Equity Units, any Collateral or 24 the Stock 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 validity, perfection, enforceability, priority or, except as expressly required hereby, maintenance of any security interest created hereunder; (c) not be required to initiate or conduct any litigation or collection proceedings hereunder (except pursuant to directions furnished under Section 9.02 hereof, subject to Section 9.08 hereof); (d) 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 negligence or willful misconduct; and (e) not be required to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. Subject to the foregoing, during the term of this Agreement, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall take all reasonable action in connection with the safekeeping and preservation of the Collateral hereunder as determined by industry standards. The Collateral Agent, Securities Intermediary and Custodial Agent shall only be responsible for transferring money, securities or other property in accordance with the terms herein to the extent that such money, securities or other property is credited to the respective Collateral Account. No provision of this Agreement shall require the Collateral Agent, 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 or the exercise of any of its rights or powers hereunder. In no event shall the Collateral Agent, Custodial Agent or the Securities Intermediary be liable for any amount in excess of the Value of the Collateral. SECTION 9.02. Instructions of the Company. The Company shall have the right, by one or more written instruments executed and delivered to the Collateral Agent, 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, 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 or involve the Collateral Agent in personal liability and (ii) the Collateral Agent shall be indemnified to its satisfaction as provided herein. None of the Collateral Agent, the Custodial Agent or the Securities Intermediary has any obligation or responsibility to file any UCC financing or continuation 25 statements or to take any other actions to create, preserve or maintain the security interest in the Collateral except as expressly set forth herein. SECTION 9.03. Reliance by Collateral Agent, Custodial Agent and Securities Intermediary. Each of the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled, in the absence of bad faith, to rely conclusively upon any certification, order, judgment, opinion, notice or other written communication (including, without limitation, any thereof by e-mail or similar electronic means, telecopy, telex or facsimile) 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 consult with and conclusively rely upon advice, opinions 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 acting, or in refraining from acting, hereunder in accordance with instructions given by the Company in accordance with this Agreement. In the event any instructions are given (other than in writing at the time of the execution of this Agreement), whether in writing, by telecopier or otherwise, the Collateral Agent, the Custodial Agent and the Securities Intermediary are authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule I hereto, and the Collateral Agent, the Custodial Agent and the Securities Intermediary may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by the Collateral Agent, the Custodial Agent and the Securities Intermediary. It is understood that the Collateral Agent, the Custodial Agent and the Securities Intermediary in any funds transfer may rely solely upon any account numbers or similar identifying number provided by the Company to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Collateral Agent, the Custodial Agent and the Securities Intermediary may apply any of the deposited funds for any payment order it executes using any such identifying number, even where its use may result in a Person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank, or an intermediary bank, designated by the Company; provided, however, that payment is made to the account as specified by the Company. In each case that the Collateral Agent, Custodial Agent or Securities Intermediary may or is required hereunder to take any action, including without limitation to make any determination or judgment, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder, the Collateral Agent, Custodial Agent or Securities Intermediary may seek direction from the Company. The Collateral Agent, Custodial Agent or Securities Intermediary shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction from the Company. Unless direction is otherwise expressly provided herein, if the Collateral Agent, Custodial Agent or Securities Intermediary shall request direction from the Company with respect to any action, the Collateral Agent, Custodial Agent or the Securities Intermediary shall be entitled to refrain from such 26 action unless and until such agent shall have received direction from the Company, and the agent shall not incur liability to any Person by reason of so refraining. SECTION 9.04. Certain Rights. (a) Whenever in the administration of the provisions of this Agreement the Collateral Agent, the Custodial Agent or the Securities Intermediary shall deem it necessary or desirable that a matter be proved or established prior totaling or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary, be deemed to be conclusively proved and established by a certificate signed by one of the Company's officers, and delivered to the Collateral Agent, the Custodial Agent or the Securities Intermediary and such certificate, in the absence of negligence or bad faith on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary, shall be full warrant to the Collateral Agent, the Custodial Agent or the Securities Intermediary for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof. (b) The Collateral Agent, the Custodial Agent or the Securities Intermediary shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. SECTION 9.05. Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Collateral Agent, the Custodial Agent or the Securities Intermediary may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be the successor of the Collateral Agent, the Custodial Agent or the Securities Intermediary hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding. SECTION 9.06. Rights in Other Capacities. The Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may (without having to account therefore 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 Stock Purchase Contract Agent, any other Person interested herein and any Holder of Common Equity Units (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, the Securities Intermediary and 27 their affiliates may accept fees and other consideration from the Stock Purchase Contract Agent and any Holder of Common Equity Units 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 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 other than the lien created by the Pledge. SECTION 9.07. Non-reliance on Collateral Agent, the Custodial Agent and Securities Intermediary. 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 Stock Purchase Contract Agent or any Holder of Common Equity Units of this Agreement, the Stock Purchase Contract Agreement, the Common Equity Units or any other document referred to or provided for herein or therein or to inspect the properties or books of the Stock Purchase Contract Agent or any Holder of Common Equity Units. None of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall have any duty or responsibility to provide the Company with any credit or other information concerning the affairs, financial condition or business of the Stock Purchase Contract Agent or any Holder of Common Equity Units (or any of their respective 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 9.08. Compensation and Indemnity. The Company agrees to: (a) pay 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 them hereunder; (b) indemnify and hold harmless the Collateral Agent, the Custodial Agent, the Securities Intermediary and each of their respective directors, officers, agents and employees (collectively, the "Indemnitees"), from and against any and all claims, liabilities, losses, damages, fines, penalties and expenses (including reasonable fees and expenses of counsel) and taxes (other than those based upon, determined by or measured by the income of the Collateral Agent, the Custodial Agent and Securities Intermediary) (collectively, "Losses" and individually, a "Loss") that may be imposed on, incurred by, or asserted against, the Indemnitees or any of them for following any instructions or other directions upon which either the Collateral Agent, the Custodial Agent or the Securities Intermediary is entitled to rely pursuant to the terms of this Agreement, provided that the Collateral Agent, the Custodial Agent or the Securities Intermediary has not acted with negligence or engaged in willful misconduct with respect to the specific Loss against which indemnification is sought; and 28 (c) in addition to and not in limitation of paragraph (b)immediately above, indemnify and hold the Indemnitees and each of them harmless from and against any and all Losses that may be imposed on, incurred by or asserted against, the Indemnitees or any of them in connection with or arising out of the Collateral Agent's, the Custodial Agent's or the Securities Intermediary's acceptance or performance of its powers and duties under this Agreement, provided that the Collateral Agent, the Custodial Agent or the Securities Intermediary has not acted with negligence or engaged in willful misconduct with respect to the specific Loss against which indemnification is sought. The provisions of this Section and Section 11.07 shall survive the resignation or removal of the Collateral Agent, Custodial Agent or Securities Intermediary and the termination of this Agreement. SECTION 9.09. 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, then at its sole option, each of the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled, after prompt notice to the Company and the Stock Purchase Contract Agent, 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 the Collateral Agent, the Custodial Agent and the Securities Intermediary shall not 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: (a) 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; or (b) the Collateral Agent, the Custodial Agent or the Securities Intermediary shall have received security or an indemnity satisfactory to it sufficient to save it harmless from and against any and all loss, liability or reasonable out-of-pocket expense which it may incur by reason of its acting. Notwithstanding anything contained herein to the contrary, none of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be required to take any action that is 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 9.10. Resignation of Collateral Agent, the Custodial Agent and Securities Intermediary. Subject to the appointment and acceptance of a successor Collateral Agent, Custodial Agent or Securities Intermediary as provided below: 29 (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 Stock Purchase Contract Agent as attorney-in-fact for the Holders of Common Equity Units; (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 Stock Purchase Contract Agent, and such failure shall be continuing, the Collateral Agent, the Custodial Agent and the Securities Intermediary may be removed by the Stock Purchase Contract Agent, acting at the direction of the Holders of a majority in number of the Common Equity Units. The Stock 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 (iii) of this Section 9.10. 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 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 the Company's or the Stock Purchase Contract Agent's giving notice of such removal, then the retiring or removed Collateral Agent, Custodial Agent or Securities Intermediary may petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Collateral Agent, Custodial Agent or Securities Intermediary. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall each be a bank, trust company or national banking association 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 hereunder by a successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, such successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, 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, subject to payment of any amounts then due and payable to it hereunder, 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 Article IX shall 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, Custodial Agent or Securities Intermediary hereunder, at a time when such Person is acting as the Collateral Agent, Custodial Agent or Securities Intermediary, shall be deemed for all purposes of this Agreement as the 30 simultaneous resignation or removal of the Collateral Agent, Securities Intermediary or Custodial Agent, as the case may be. SECTION 9.11. Right to Appoint Agent or Advisor. The Collateral Agent, Custodial Agent and Securities Intermediary each shall have the right to appoint agents or advisors in connection with any of their respective duties hereunder, and the Collateral Agent, Custodial Agent and Securities Intermediary 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 pursuant to Section 9.11 shall be subject to prior written consent of the Company, which consent shall not be unreasonably withheld. SECTION 9.12. Survival. The provisions of this Article IX shall survive termination of this Agreement and the resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary. SECTION 9.13. Exculpation. Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Collateral Agent, the Custodial Agent or the Securities Intermediary or their officers, directors, 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, but not limited to, 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 negligence or willful misconduct on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary. ARTICLE X AMENDMENT SECTION 10.01. Amendment Without Consent of Holders. Without the consent of any Holders, the Company, when duly authorized by a Board Resolution, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Stock 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 Stock Purchase Contract Agent, to: (a) evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company; 31 (b) evidence and provide for the acceptance of appointment hereunder by a successor Collateral Agent, Custodial Agent, Securities Intermediary or Stock Purchase Contract Agent; (c) add to the covenants of the Company for the benefit of the Holders, or surrender any right or power herein conferred upon the Company, provided that such covenants or such surrender do not adversely affect the validity, perfection or priority of the Pledge created hereunder; (d) cure any ambiguity (or formal defect) or correct or supplement any provisions herein which may be inconsistent with another such provisions herein; or (e) make any other provisions with respect to such matters or questions arising under this Agreement, provided that such action shall not adversely affect the interests of the Holders in any material respect. SECTION 10.02. Amendment with Consent of Holders. With the consent of the Holders of not less than a majority in number of the Common Equity Units at the time Outstanding, including without limitation the consent of the Holders obtained in connection with a tender or an exchange offer, by Act of such Holders delivered to the Company, the Stock Purchase Contract Agent, the Custodial Agent, the Securities Intermediary and the Collateral Agent, as the case may be, the Company, when duly authorized by a Board Resolution, the Stock Purchase Contract Agent, the Collateral Agent, the Securities Intermediary and the Collateral Agent 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 Common Equity Units; provided, however, that no such supplemental agreement shall, without the unanimous consent of the Holders of each Outstanding Common Equity Unit: (a) change the amount or type of Collateral underlying a Common Equity Unit (except for the rights of Holders of Normal Common Equity Units to substitute the Treasury Securities for the Pledged Trust Preferred Securities or the rights of Holders of Stripped Common Equity Units to substitute Trust Preferred Securities, as applicable, for the Pledged Treasury Securities), impair the right of the Holder of any Common Equity Unit to receive distributions on the underlying Collateral or otherwise adversely affect the Holder's rights in or to such Collateral; or (b) otherwise effect any action that would require the consent of the Holder of each Outstanding Common Equity Unit affected thereby pursuant to the Stock Purchase Contract Agreement if such action were effected by a modification or amendment of the provisions of the Stock Purchase Contract Agreement; or (c) reduce the percentage of Common Equity Units the consent of whose Holders is required for the modification or amendment of the provisions of this Agreement; provided that if any amendment or proposal referred to above would adversely affect only the Normal Common Equity Units or only the Stripped Common Equity Units, then only the 32 affected class of Holders as of the record date for the Holders entitled to vote thereon will be entitled to vote on such amendment or proposal, and such amendment or proposal shall not be effective except with the consent of Holders of not less than a majority of such class; provided further that the unanimous consent of the Holders of each Outstanding Common Equity Unit of such class affected thereby shall be required to approve any amendment or proposal specified in clauses (a) through (c) above. 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 10.03. Execution of Amendments. In executing any amendment permitted by this Article, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Stock Purchase Contract Agent shall be entitled to receive and (subject to Section 7.01 of the Stock Purchase Contract Agreement with respect to the Stock Purchase Contract Agent) shall be fully authorized and protected in relying upon, an Opinion of Counsel and an officers' certificate 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. The Collateral Agent, Custodial Agent, Securities Intermediary and Stock Purchase Contract Agent may, but shall not be obligated to, enter into any such amendment which affects their own respective rights, duties or immunities under this Agreement or otherwise. SECTION 10.04. Effect of Amendments. Upon the execution of any amendment under this Article, 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 Stock Purchase Contract Agreement shall be bound thereby. SECTION 10.05. Reference of 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 Stock Purchase Contract Agent, bear a notation as to any matter provided for in such amendment. If the Company shall so determine, new Certificates so modified as to conform, to any such amendment may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Stock Purchase Contract Agent in accordance with the Stock Purchase Contract Agreement in exchange for Certificates representing Outstanding Common Equity Units. ARTICLE XI MISCELLANEOUS SECTION 11.01. No Waiver. 33 No failure on the part of the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of their respective 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 single or partial exercise by the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of their respective 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 11.02. Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Holders from time to time of the Common Equity Units, acting through the Stock 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, the Securities Intermediary and the Holders from time to time of the Common Equity Units, acting through the Stock Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to the fullest extent permitted by applicable law, any objection that 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 11.03. Notices. 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 transmitted by telecopy or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid. SECTION 11.04. 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 Stock Purchase Contract Agent, and the Holders from time to time of the Common Equity Units, by their acceptance of the same, shall 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 Stock Purchase Contract Agent. SECTION 11.05. Counterparts. 34 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 11.06. 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 11.07. Expenses, Etc. The Company agrees to reimburse the Collateral Agent, the Custodial Agent and the Securities Intermediary for: (a) all reasonable costs and expenses of the Collateral Agent, the Custodial Agent and the Securities Intermediary (including, without limitation, the reasonable fees and expenses of counsel to the Collateral Agent, the Custodial Agent and the Securities Intermediary), 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, the Custodial Agent and the Securities Intermediary (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 Common Equity Units to satisfy its obligations under the Stock Purchase Contracts forming a part of the Common Equity Units and (ii) the enforcement of this Section 11.07; (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; (d) all reasonable fees and expenses of any agent or advisor appointed by the Collateral Agent and consented to by the Company under Section 9.11 of this Agreement; and (e) any other out-of-pocket costs and expenses reasonably incurred by the Collateral Agent, the Custodial Agent and the Securities Intermediary in connection with the performance of their duties and the exercise of their powers hereunder. Section 11.08. Security Interest Absolute. 35 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 Stock Purchase Contracts or the Common Equity Units 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 the Common Equity Units under the related Stock Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any departure from any requirement of, the Stock Purchase Contract Agreement or any Stock 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 11.09. Notice of Termination Event. Upon the occurrence of a Termination Event, the Company shall deliver written notice to the Stock Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary. Upon the written request of the Collateral Agent or the Securities Intermediary, the Company shall inform such party whether or not a Termination Event has occurred. SECTION 11.10. Incorporation by Reference. In connection with its execution and performance hereunder the Stock Purchase Contract Agent is entitled to all rights, privileges, protections, immunities, benefits and indemnities provided to it under the Stock Purchase Contract Agreement. [SIGNATURES ON THE FOLLOWING PAGE] 36 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. J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Stock Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Common Equity Units By: _______________________________ By: __________________________________ Name: Name: Title: Title: Address for Notices: Address for Notices: MetLife, Inc. Worldwide Securities Services 27-01 Queens Plaza North 4 New York Plaza Long Island City, New York 11101 15th Floor Facsimile: (212) 578-0266 New York, New York 10004 Attention: Treasurer Facsimile: (212) 623-6215 Telephone: (212) 623-5233 Attention: Worldwide Securities Services JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Collateral Agent, Custodial Agent and Securities Intermediary By: _________________________________ Name: Title: Address for Notices Worldwide Securities Services 4 New York Plaza 15th Floor New York, New York 10004 Facsimile: (212) 623-6215 Telephone: (212) 623-5233 Attention: Worldwide Securities Services 37 EXHIBIT A INSTRUCTION FROM STOCK PURCHASE CONTRACT AGENT TO COLLATERAL AGENT (Creation of Stripped Common Equity Units) JPMorgan Chase Bank, National Association, as Collateral Agent Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: ________________Normal Common Equity Units of MetLife, Inc. (the "COMPANY") The securities accounts of JPMorgan Chase Bank, National Association, as Collateral Agent, maintained by the Securities Intermediary and designated "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series A" (the "SERIES A COLLATERAL ACCOUNT") and "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series B" (the "SERIES B COLLATERAL ACCOUNT") Please refer to the Pledge Agreement, dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, as Securities Intermediary and as Custodial Agent and the undersigned, as Stock Purchase Contract Agent and as attorney-in-fact for the holders of Normal Common Equity Units from time to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. We hereby notify you in accordance with Section 5.02 of the Pledge Agreement that: [Include only if Notice is Delivered Prior to the Initial Stock Purchase Date the holder of securities named below (the "HOLDER") has elected to substitute $ ___________ Value of Series A Treasury Securities or security entitlements with respect thereto in exchange for an equal Value of Pledged Series A Trust Preferred Securities relating to Normal Common Equity Units and has delivered to the undersigned a notice stating that the Holder has Transferred such Treasury Securities or security entitlements with respect thereto to the Securities Intermediary, for credit to the Series A Collateral Account.] the Holder has elected to substitute $ Value of Series B Treasury Securities or security entitlements with respect thereto in exchange for an equal Value of Pledged Series B Trust Preferred Securities relating to Normal Common Equity Units and has delivered to the undersigned a notice stating that the Holder has Transferred such Treasury Securities or security A-1 entitlements with respect thereto to the Securities Intermediary, for credit to the Series B Collateral Account. We hereby request that you instruct the Securities Intermediary: (A) [Include only if Notice is Delivered Prior to the Initial Stock Purchase Date Upon confirmation that such Series A Treasury Securities or security entitlements thereto have been credited to the Series A Collateral Account, to release to the undersigned, on behalf of the Holder for distribution to such Holder, an equal Value of Series A Pledged Trust Preferred Securities in accordance with Section 5.02 of the Pledge Agreement.] Upon confirmation that such Series B Treasury Securities or security entitlements thereto have been credited to the Series B Collateral Account, to release to the undersigned, on behalf of the Holder for distribution to such Holder, an equal Value of Series B Pledged Trust Preferred Securities in accordance with Section 5.02 of the Pledge Agreement. Date:________________________ J.P.Morgan Trust Company, National Association, as Stock Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Common Equity Units By: _____________________________________ Name: Title: A-2 Please print name and address of Holder electing to substitute Treasury Securities or security entitlements with respect thereto for the Pledged Trust Preferred Securities: ________________________________ ________________________________________ Name Social Security or other Taxpayer Identification Number, if any ________________________________ Address ________________________________ ________________________________ A-3 EXHIBIT B INSTRUCTION FROM COLLATERAL AGENT TO SECURITIES INTERMEDIARY (Creation of Stripped Common Equity Units) JPMorgan Chase Bank, National Association as Securities Intermediary Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: ____________ Normal Common Equity Units of MetLife, Inc. (the "COMPANY") The securities accounts of JPMorgan Chase Bank, National Association, as Collateral Agent, maintained by the Securities Intermediary and designated "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series A" (the "SERIES A COLLATERAL ACCOUNT") and "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series B" (the "SERIES B COLLATERAL ACCOUNT") Please refer to the Pledge Agreement, dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, as Securities Intermediary and as Custodial Agent and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent and as attorney-in-fact for the holders of Normal Common Equity Units from time to time. Capitalized terms used herein but not defined shall have the meanings set forth in the Pledge Agreement. [If Notice is Delivered Prior to the Initial Stock Purchase Date When you have confirmed that (i) $ Value of Series A Treasury Securities or security entitlements thereto has been credited to the Series A Collateral Account by or for the benefit of , as Holder of Normal Common Equity Units (the "HOLDER") and (ii) $ Value of Series B Treasury Securities or security entitlements thereto has been credited to the Series B Collateral Account by or for the benefit of the Holder, you are hereby instructed to release from the Series A Collateral Account an equal Value of Pledged Series A Trust Preferred Securities or security entitlements with respect thereto and to release from the Series B Collateral Account an equal Value of Pledged Series B Trust Preferred Securities or security entitlements with respect thereto, relating to Normal Common Equity Units of the Holder by Transfer to the Stock Purchase Contract Agent on behalf of the Holder for distribution to such Holder.] B-1 [If Notice is Delivered After the Initial Stock Purchase Date: When you have confirmed that $ Value of Series B Treasury Securities or security entitlements thereto has been credited to the Series B Collateral Account by or for the benefit of , as Holder of Normal Common Equity Units (the "HOLDER"), you are hereby instructed to release to the undersigned, from the Series B Collateral Account an equal Value of Pledged Series B Trust Preferred Securities or security entitlements with respect thereto, relating to Normal Common Equity Units of the Holder by Transfer to the Stock Purchase Contract Agent on behalf of the Holder for distribution to such Holder.] Dated: ______________________ JPMorgan Chase Bank, National Association, as Collateral Agent By: _____________________________________ Name: Title: B-2 Please print name and address of Holder: ________________________________ ________________________________________ Name Social Security or other Taxpayer Identification Number, if any ________________________________ Address ________________________________ ________________________________ B-3 EXHIBIT C INSTRUCTION FROM STOCK PURCHASE CONTRACT AGENT TO COLLATERAL AGENT (Recreation of Normal Common Equity Units) JPMorgan Chase Bank, National Association, as Securities Intermediary Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: _________ Stripped Common Equity Units of MetLife, Inc. (the "COMPANY") The securities accounts of JPMorgan Chase Bank, National Association, as Collateral Agent, maintained by the Securities Intermediary and designated "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series A" (the "SERIES A COLLATERAL ACCOUNT") and "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series B" (the "SERIES B COLLATERAL ACCOUNT") Please refer to the Pledge Agreement dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), among the Company, you, as Collateral Agent, as Securities Intermediary, as Custodial Agent and the undersigned, as Stock Purchase Contract Agent and as attorney-in-fact for the holders of Stripped Common Equity Units from time to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. [If Notice is Delivered Prior to the Initial Stock Purchase Date: We hereby notify you in accordance with Section 5.03 of the Pledge Agreement that the holder of securities named below (the "HOLDER") has elected to substitute (i) $ Value of Series A Trust Preferred Securities or security entitlements with respect thereto in exchange for an equal Value of Pledged Series A Treasury Securities with respect to Stripped Common Equity Units and has delivered to the undersigned a notice stating that the Holder has Transferred such Series A Trust Preferred Securities or security entitlements with respect thereto to the Securities Intermediary, for credit to the Series A Collateral Account; and (ii) $ Value of Series B Trust Preferred Securities or security entitlements with respect thereto in exchange for an equal Value of Pledged Series B Treasury Securities with respect to Stripped Common Equity Units and has delivered to the undersigned a notice stating that the Holder has Transferred such Series B Trust Preferred Securities or security entitlements with respect thereto to the Securities Intermediary, for credit to the Series B Collateral Account; C-1 [If Notice is Delivered After the Initial Stock Purchase Date: We hereby notify you in accordance with Section 5.03 of the Pledge Agreement that the holder of securities named below (the "HOLDER") has elected to substitute $ Value of Series B Trust Preferred Securities or security entitlements with respect thereto in exchange for an equal Value of Pledged Series B Treasury Securities with respect to Stripped Common Equity Units and has delivered to the undersigned a notice stating that the Holder has Transferred such Series B Trust Preferred Securities or security entitlements with respect thereto to the Securities Intermediary, for credit to the Series B Collateral Account.] We hereby request that you instruct the Securities Intermediary, upon confirmation that such Trust Preferred Securities or security entitlements with respect thereto have been credited to the Collateral Account, to release to the undersigned, on behalf of such Holder for distribution to such Holder, an equal Value of Series A Treasury Securities and an equal Value of Series B Treasury Securities in accordance with Section 5.03 of the Pledge Agreement. Dated: ______________________ J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent By: _____________________________________ Name: Title: C-2 Please print name and address of Holder electing to substitute Trust Preferred Securities or security entitlements with respect thereto for Pledged Treasury Securities: ________________________________ ________________________________________ Name Social Security or other Taxpayer Identification Number, if any ________________________________ Address ________________________________ ________________________________ C-3 EXHIBIT D INSTRUCTION FROM COLLATERAL AGENT TO SECURITIES INTERMEDIARY (Recreation of Normal Common Equity Units) JPMorgan Chase Bank, National Association, as Securities Intermediary Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: __________ Stripped Common Equity Units of MetLife, Inc. (the "COMPANY") The securities accounts of JPMorgan Chase Bank, National Association, as Collateral Agent, maintained by the Securities Intermediary and designated "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series A" (the "SERIES A COLLATERAL ACCOUNT") and "JPMorgan Chase Bank, National Association, as Collateral Agent of MetLife, Inc., as pledgee of J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders, Series B" (the "SERIES B COLLATERAL ACCOUNT") Please refer to the Pledge Agreement dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), among the Company, you, as Securities Intermediary, Custodial Agent and Collateral Agent and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent and as attorney-in-fact for the holders of Normal Common Equity Units from time to time. Capitalized terms used herein but not defined shall have the meanings set forth in the Pledge Agreement. [If Notice is Delivered Prior to the Initial Stock Purchase Date: When you have confirmed that (i) $ Value of Series A Trust Preferred Securities or security entitlements with respect thereto has been credited to the Series A Collateral Account by or for the benefit of , as Holder of Stripped Common Equity Units (the "HOLDER") and (ii) $ Value of Series B Trust Preferred Securities or security entitlements with respect thereto has been credited to the Series B Collateral Account by or for the benefit of Holder you are hereby instructed to release from the Series A Collateral Account and the Series B Collateral Account an equal Value of Series A Treasury Securities, Series B Treasury Securities or security entitlements with respect thereto relating to Stripped Common Equity Units of the Holder by Transfer to the Stock Purchase Contract Agent on behalf of such Holder for distribution to such Holder.] [If Notice is Delivered After the Initial Stock Purchase Date: When you have confirmed that $ Value of Series B Trust Preferred Securities or security entitlements D-1 with respect thereto has been credited to the Series B Collateral Account by or for the benefit of , as Holder of Stripped Common Equity Units (the "HOLDER"), you are hereby instructed to release from the Series B Collateral Account an equal Value of Series B Treasury Securities or security entitlements with respect thereto relating to Stripped Common Equity Units of the Holder by Transfer to the Stock Purchase Contract Agent on behalf of such Holder for distribution to such Holder.] Dated: JPMorgan Chase Bank, National Association, as Collateral Agent By: By: ______________________________________ Name: Title: D-2 Please print name and address of Holder: ________________________________ ________________________________________ Name Social Security or other Taxpayer Identification Number, if any ________________________________ Address ________________________________ ________________________________ D-3 EXHIBIT E NOTICE OF CASH SETTLEMENT FROM COLLATERAL AGENT TO STOCK PURCHASE CONTRACT AGENT (Cash Settlement Amounts) J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: _________ Normal Common Equity Units of MetLife, Inc. (the "COMPANY") _________ Stripped Common Equity Units of the Company Please refer to the Pledge Agreement dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), by and among you, the Company, and the undersigned, as Collateral Agent, Custodial Agent and Securities Intermediary. Unless otherwise defined herein, terms defined in the Pledge Agreement are used herein as defined therein. In accordance with Section 5.05(c) of the Pledge Agreement, we hereby notify you that as of 5:00 p.m. (New York City time) on the fourth Business Day immediately preceding { } (the "[INITIAL][SUBSEQUENT] STOCK PURCHASE DATE"), we have received (i) $___________ in immediately available funds paid with respect to the Cash Settlement of ___________ Normal Common Equity Units, and (ii) based on the funds received set forth in clause (i) above, an aggregate liquidation amount of $___________ of Pledged [Series A][Series B] Trust Preferred Securities are to be tendered for purchase in the Remarketing. Dated: JPMorgan Chase Bank, National Association, as Collateral Agent By: __________________________________ Name: Title: E-1 EXHIBIT F INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING JPMorgan Chase Bank, National Association The Custodial Agent Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: Trust Preferred Securities of [MetLife Capital Trust II][MetLife Capital Trust III] The undersigned hereby notifies you in accordance with Section 5.07(c) of the Pledge Agreement, dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), among MetLife, Inc. (the "Company"), you, as Collateral Agent, Custodial Agent and Securities Intermediary and J.P. Morgan Trust Company, National Association, as the Stock Purchase Contract Agent and as attorney-in-fact for the holders of Normal Common Equity Units from time to time, that the undersigned elects to deliver $__________ aggregate liquidation amount of Separate [Series A] [Series B] Trust Preferred Securities for delivery to the Remarketing Agent on or prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the applicable Remarketing Date for remarketing pursuant to Section 5.07(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 Separate [Series A] [Series B] Trust Preferred Securities tendered hereby. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. The undersigned hereby instructs you, upon receipt of the Proceeds of such remarketing from the Remarketing Agent, 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 a Failed Remarketing, upon receipt of the Separate [Series A] [Series B] Trust Preferred Securities tendered herewith from the Remarketing Agent, to deliver such Separate [Series A] [Series B] Trust Preferred Securities 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 Separate [Series A] [Series B] Trust Preferred Securities tendered hereby and that the undersigned is the record owner of any [Series A] [Series B] Trust Preferred Securities tendered herewith in physical form or a participant in The Depository Trust Company ("DTC") and the beneficial owner of any [Series A] [Series B] Trust Preferred Securities tendered herewith by book-entry transfer to your account at DTC, (ii) agrees to be bound by the terms and conditions of Section 5.07(c) of the Pledge Agreement and (iii) acknowledges and agrees that after 5:00 p.m. (New York City time) on the fifth Business Day immediately preceding the Remarketing Date, such election shall become an irrevocable election to have such Separate [Series A] [Series B] Trust Preferred F-1 Securities remarketed in the Remarketing. In the case of a Failed Remarketing, such Separate [Series A] [Series B] Trust Preferred Securities shall be returned to the undersigned. Dated: ________________________ By: _____________________________________ Name: Title: Signature Guarantee: ________________ ________________________________ _________________________________________ Name Social Security or other Taxpayer Identification Number, if any ________________________________ Address ________________________________ ________________________________ F-2 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) (Taxpayer Identification or Social Security Number) B. DELIVERY INSTRUCTIONS In the event of a Failed Remarketing, [Series A] [Series B] Trust Preferred Securities that 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, [Series A] [Series B] Trust Preferred Securities that 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: ______________________________ F-3 EXHIBIT G INSTRUCTION TO CUSTODIAL AGENT REGARDING WITHDRAWAL FROM REMARKETING JPMorgan Chase Bank, National Association The Custodial Agent Facsimile: (212) 623-5216 Attention: Worldwide Securities Services Re: Trust Preferred Securities of [MetLife Capital Trust II][MetLife Capital Trust III] The undersigned hereby notifies you in accordance with Section 5.07(c) of the Pledge Agreement, dated as of June 21, 2005 (the "PLEDGE AGREEMENT"), among MetLife, Inc. and you, as Collateral Agent, Custodial Agent and Securities Intermediary, and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent and as attorney-in-fact for the holders of Normal Common Equity Units from time to time, that the undersigned elects to withdraw the $__________ aggregate liquidation amount of Separate [Series A] [Series B] Trust Preferred Securities delivered to the Custodial Agent on _________ 200_ for remarketing pursuant to Section 5.07(c) of the Pledge Agreement. The undersigned hereby instructs you to return such [Series A] [Series B] Trust Preferred 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 5.07(c) of the Pledge Agreement. Capitalized terms used herein but not defined shall have the meaning set forth in the Pledge Agreement. Dated: _______________________ By: _____________________________________ Name: Title: Signature Guarantee: ________________ ________________________________ _________________________________________ Name Social Security or other Taxpayer Identification Number, if any ________________________________ Address ________________________________ ________________________________ G-1 SCHEDULE I Contact Persons for Confirmation
NAME PHONE NUMBER - ---- ------------
1 EX-4.6 4 y10123exv4w6.txt FORM OF FIRST SUPPLEMENTAL INDENTURE Exhibit 4.6 ================================================================================ METLIFE, INC., ISSUER and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE First Supplemental Indenture Dated as of June 21, 2005 Supplement to the Indenture of MetLife, Inc. dated as of June 21, 2005 ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS AND SCOPE Section 1.1 Definition of Terms............................................................... 2 Section 1.2 Scope............................................................................. 4 ARTICLE II GENERAL TERMS AND CONDITIONS OF THE SERIES A DEBENTURES Section 2.1 Designation, Principal Amount and Authorized Denomination......................... 4 Section 2.2 Maturity.......................................................................... 5 Section 2.3 Form and Payment.................................................................. 5 Section 2.4 Global Series A Debenture......................................................... 5 Section 2.5 Interest.......................................................................... 7 Section 2.6 Redemption of the Series A Debentures............................................. 7 Section 2.7 Put Right of Holders.............................................................. 7 Section 2.8 Restrictions on Certain Payments, Including on Deferral of Interest............... 8 Section 2.9 Notice of Defaults; Amount Payable upon Acceleration.............................. 9 Section 2.10 CUSIP Numbers..................................................................... 9 Section 2.11 Security Registrar and Paying Agent............................................... 9 Section 2.12 Company Elections in Connection with Remarketing.................................. 9 ARTICLE III EXPENSES Section 3.1 Expenses......................................................................... 11 ARTICLE IV FORM OF SERIES A DEBENTURES Section 4.1 Form of Series A Debentures...................................................... 11 ARTICLE V ORIGINAL ISSUE OF SERIES A DEBENTURES Section 5.1 Original Issue of Series A Debentures............................................ 21 ARTICLE VI EVENTS OF DEFAULT, WAIVER AND NOTICE Section 6.1 Event of Default................................................................. 21 ARTICLE VII SUBORDINATION
i Section 7.1 Subordination.................................................................... 23 Section 7.2 Company Election to End Subordination............................................ 23 Section 7.3 Compliance with Federal Reserve Board Rules...................................... 23 ARTICLE VIII MISCELLANEOUS Section 8.1 Effectiveness.................................................................... 24 Section 8.2 Further Assurances............................................................... 24 Section 8.3 Effect of Recitals............................................................... 24 Section 8.4 Ratification of Base Indenture................................................... 24 Section 8.5 Governing Law.................................................................... 24 Section 8.6 Counterparts..................................................................... 24
ii THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 21, 2005 (this "First Supplemental Indenture"), to the Base Indenture (as defined below), dated as of the date hereof, between METLIFE, INC., a Delaware corporation (the "Company"), and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee under the Indenture (as defined below), a national banking association (the "Trustee"). WHEREAS, the Company and the Trustee have entered into an Indenture, dated as of the date hereof (the "Base Indenture," and together with this First Supplemental Indenture, the "Indenture"); and WHEREAS, Section 9.01 of the Base Indenture provides that the Base Indenture may be amended without the consent of any Holder (i) to provide for the issuance of and establish the form and terms and conditions of the Securities (as defined in the Base Indenture) of any series as provided in Section 2.01 of the Base Indenture and (ii) to add to, change or eliminate any of the provisions of the Base Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination does not apply to any Security of any series created prior to the execution of the amendment; WHEREAS, the Company has delivered to the Trustee an Opinion of Counsel and an Officers' Certificate pursuant to Section 14.07 of the Base Indenture to the effect that all conditions precedent provided for in the Base Indenture to the Trustee's execution and delivery of this First Supplemental Indenture have been complied with; WHEREAS, MetLife Capital Trust II, a Delaware statutory trust (the "Trust"), has offered to the public its Series A Trust Preferred Securities (the "Trust Preferred Securities"), representing undivided beneficial interests in the assets of the Trust, and proposes to invest the proceeds from such offering, together with the proceeds of the issuance and sale by the Trust to the Company of its Common Securities (together with the Trust Preferred Securities, the "Trust Securities"), in the Series A Debentures; WHEREAS, the Trust Preferred Securities and the Series A Debentures will be subject to Remarketing, in connection with which certain terms of the Trust Preferred Securities and the Series A Debentures may be changed, all in accordance with the procedures to be set forth in a Remarketing Agreement to be entered into among the Company, the Trust (in the event the Trust Preferred Securities are outstanding on any Remarketing Date), the Stock Purchase Contract Agent and the Remarketing Agent; and WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture and satisfy all requirements necessary to make this First Supplemental Indenture a valid instrument in accordance with its terms, and to make the Series A Debentures, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company and all acts and things necessary have been done and performed to make this First Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects: NOW, THEREFORE, the Company and the Trustee agree as follows: 1 ARTICLE I DEFINITIONS AND SCOPE Section 1.1 Definition of Terms. Unless the context otherwise requires: (a) a term defined in the Base Indenture has the same meaning when used in this First Supplemental Indenture unless otherwise specified herein; (b) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout; (c) the singular includes the plural and vice versa; (d) headings are for convenience of reference only and do not affect interpretation; (e) the following terms have the meanings given to them in the Trust Agreement: Administrative Trustee; Delaware Trustee; Distributions; Initial Liquidation Amount; Property Trustee; Record Date; Remarketing; Remarketing Agent; Remarketing Agreement; Remarketing Date; Remarketing Settlement Date; Trust Preferred Securities Certificate; Stock Purchase Contract Agent and Successful. (f) the following terms have the meanings given to them in this Section 1.1(f): "Accreted Interest" means, for any Interest Period for any Series A Debenture as of any date of determination, (i) the Accreted Principal Amount of such Series A Debenture at the beginning of the Interest Period in which such date occurs, multiplied by (ii) the Applicable Yield for such Interest Period, multiplied by (iii) the quotient of the actual number of days elapsed from and including the first day of such Interest Period, to but excluding the date of determination divided by 360; provided that the Accreted Interest for any full Interest Period shall be calculated by reference to the actual number of days in such Interest Period divided by 360. "Accreted Principal Amount" means, for any Series A Debenture as of any date of determination, (i) the Original Principal Amount of such Series A Debenture, plus (ii) the sum of the Accreted Interest (if any) for each Interest Period concluding on or prior to such date, plus (iii) the Accreted Interest for the Interest Period in which such date occurs as of the date of determination. "Additional Interest" means the interest that shall accrue on any interest on the Series A Debentures the payment of which has not been made on the applicable Interest Payment Date. References herein to "interest" include Additional Interest unless the context otherwise requires. "Applicable Yield" means (1) prior to the Remarketing Settlement Date, 0%, (2) if a Remarketing occurs, unless the Company has elected that the Series A Debentures will 2 bear cash interest, from and after the applicable Remarketing Settlement Date, for any Interest Period, the Reset Yield for such Interest Period and (3) if a Remarketing has occurred and the Company has elected to have the Series A Debentures bear cash interest, 0%. "Collateral Agent" has the meaning set forth in the Stock Purchase Contract Agreement. "Creditor" has the meaning set forth in Section 3.1. "Holder" means a Securityholder (as defined in the Base Indenture) of the Series A Debentures. "Early Termination Event" means the dissolution of the Trust and the distribution of the Series A Debentures held by the Property Trustee to the holders of the Trust Securities issued by the Trust pro rata in accordance with the Trust Agreement. "Final Failed Remarketing" has the meaning set forth in the Stock Purchase Contract Agreement. "Global Series A Debentures" has the meaning set forth in Section 2.4. "Interest Period" means (1) prior to the Stock Purchase Date, the period from and including the most recent Interest Payment Date to which interest has been paid or duly made available for payment (or June 21, 2005 if no interest has been paid or been duly made available for payment) to, but excluding, the next succeeding Interest Payment Date, (2) if a Remarketing occurs, unless the Company has elected that the Series A Debentures will bear cash interest from and after such Remarketing, the period from and including the applicable Remarketing Settlement Date to the Stated Maturity of the Series A Debentures, and (3) if a Remarketing has occurred and the Company has elected to have the Series A Debentures bear cash interest, the period from and including the applicable Remarketing Settlement Date or, if later, the most recent Interest Payment Date to which interest has been paid or duly made available, to but excluding the next succeeding Interest Payment Date, or, if earlier, then the Stated Maturity of the Series A Debentures. "Non Book-Entry Trust Preferred Securities" has the meaning set forth in Section 2.4. "Normal Common Equity Units" has the meaning set forth in the Stock Purchase Contract Agreement. "Original Principal Amount" of a Series A Debenture means the stated Original Principal Amount as set forth on the face of such Series A Debenture. "Reset Rate" means the rate of interest on the Series A Debentures, if any, set in a Remarketing in which the Company elected that the Series A Debentures would pay 3 interest in cash following such Remarketing (defined in the Trust Agreement as the "Reset Rate" applicable in such circumstances). "Reset Yield" means the yield to maturity on the Series A Debentures, if any, set in a Remarketing in which the Company did not elect that the Series A Debentures would pay interest in cash following such Remarketing (defined in the Trust Agreement as the "Reset Rate" applicable in such circumstances). "Series A Debentures" has the meaning set forth in Section 4.1. "Stock Purchase Contract" has the meaning set forth in the Stock Purchase Contract Agreement. "Stock Purchase Contract Agreement" means that certain agreement, dated as of the date hereof, between the Company and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent. "Stock Purchase Date" has the meaning set forth in the Stock Purchase Contract Agreement. "Trust" has the meaning set forth in the recitals hereto. "Trust Agreement" means the Amended and Restated Declaration of Trust, dated as of the date hereof, among the Company, as sponsor, the Property Trustee, the Delaware Trustee and the Administrative Trustees and the several Holders (as defined therein) relating to the Trust. "Trust Securities" has the meaning provided in the recitals hereto. Section 1.2 Scope. The changes, modifications and supplements to the Base Indenture effected by this First Supplemental Indenture shall only be applicable with respect to, and govern the terms of, the Series A Debentures and shall not apply to any other series of Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates such changes, modifications and supplements. ARTICLE II GENERAL TERMS AND CONDITIONS OF THE SERIES A DEBENTURES Section 2.1 Designation, Principal Amount and Authorized Denomination. There is hereby authorized a series of Securities designated the 4.82% Junior Subordinated Debt Securities, Series A, due 2039 (the "Series A Debentures"), limited in aggregate principal amount to $1,067,000,000, which amount to be issued shall be as set forth in any written order of the Company for the authentication and delivery of Series A Debentures pursuant to the Indenture. The Series A Debentures shall be issuable in denominations of $1,000 Original Principal Amount and integral multiples thereof. 4 Section 2.2 Maturity. The Stated Maturity of the Series A Debentures will be February 15, 2039, subject to change as provided in Section 2.12. Section 2.3 Form and Payment. Except as provided in Section 2.4, the Series A Debentures shall be issued in fully registered definitive form without interest coupons. Principal of and interest on the Series A Debentures issued in definitive form will be payable, the transfer of such Series A Debentures will be registrable and such Series A Debentures will be exchangeable for Series A Debentures bearing identical terms and provisions at the office or agency of the Trustee; provided, however, that payment of interest may be made at the option of the Company by check mailed to the Holder at such address as shall appear in the Register or by wire transfer in immediately available funds to the bank account number of the Holder specified in writing by the Holder and entered in the Register by the Registrar. Notwithstanding the foregoing, so long as the Holder of any Series A Debenture is the Property Trustee, the payment of the principal of and interest (including expenses and taxes of the Trust set forth in Section 3.1 hereof, if any) on such Series A Debentures held by the Property Trustee will be made at such place and to such account as may be designated in writing by the Property Trustee. Section 2.4 Global Series A Debenture. (a) The Depository Trust Company shall serve as the initial Depositary for the Series A Debentures. (b) The Series A Debentures shall be issued initially in fully registered form in the name of the Property Trustee, in its capacity as such. In connection with an Early Termination Event, (i) the Series A Debentures in definitive form may be presented to the Trustee by the Property Trustee for exchange for one or more Global Securities (as defined in the Base Indenture) representing Series A Debentures in an aggregate Original Principal Amount equal to the aggregate Original Principal Amount of all outstanding Series A Debentures (each a "Global Series A Debenture"), to be registered in the name of the Depositary, or its nominee, and delivered by the Property Trustee to the Depositary for crediting to the accounts of its participants pursuant to the instructions of the Administrative Trustees. The Company upon any such presentation shall execute one or more Global Series A Debentures in such aggregate Original Principal Amount and deliver the same to the Trustee for authentication and delivery in accordance with the Indenture. The Trustee, upon receipt of such Global Series A Debentures, together with an Officers' Certificate requesting authentication, will authenticate such Global Series A Debentures. Payments on the Series A Debentures issued as Global Series A Debentures will be made to the Depositary; and (ii) if any Trust Preferred Securities are held in non book-entry definitive form, the Series A Debentures in certificated form may be presented to the Trustee by the Property Trustee and any Trust Preferred Securities Certificate which represents Trust Preferred Securities other 5 than Trust Preferred Securities held by the Depositary or its nominee ("Non Book-Entry Trust Preferred Securities") will be deemed to represent beneficial interests in the Series A Debentures presented to the Trustee by the Property Trustee having an aggregate Original Principal Amount equal to the aggregate Initial Liquidation Amount of the Non Book-Entry Trust Preferred Securities until such Trust Preferred Securities Certificates are presented to the Property Trustee for transfer or reissuance, at which time such Trust Preferred Securities Certificates will be cancelled and a Series A Debenture, registered in the name of the Holder of the Trust Preferred Securities Certificate or the transferee of the Holder of such Trust Preferred Securities Certificate, as the case may be, with an aggregate Original Principal Amount equal to the aggregate Initial Liquidation Amount of the Trust Preferred Securities Certificate cancelled, will be executed by the Company and delivered to the Trustee for authentication and delivery in accordance with the Indenture to such Holder. The Trustee, upon receipt of such Series A Debenture together with an Officers' Certificate requesting authentication, shall authenticate such Series A Debenture. On issue of such Series A Debentures, Series A Debentures with an equivalent aggregate Original Principal Amount that were presented by the Property Trustee to the Trustee will be deemed to have been cancelled. (c) Unless and until it is exchanged for the Series A Debentures in definitive form, a Global Series A Debenture may be transferred, in whole but not in part, only by the Depository or the nominee of the Depository to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary. (d) If after Global Series A Debentures are issued (a) at any time the Depositary for Global Series A Debentures notifies the Company that it is unwilling or unable to continue as Depositary for such Global Series A Debentures or if at any time the Depositary for such Global Series A Debentures shall no longer be a clearing agency registered or in good standing under the Securities Exchange Act of 1934 or other applicable statute or regulation when the Depository is required to be so registered to act as the Depository, and in either case a successor Depositary for such Global Series A Debentures is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or (b) the Company determines in its sole discretion that the Series A Debentures shall no longer be represented by one or more Global Series A Debentures and delivers to the Trustee an Officer's Certificate evidencing such determination, then the Company will execute and the Trustee, upon receipt of an Officer's Certificate evidencing such determination by the Company, will authenticate and deliver Series A Debentures of like tenor in definitive registered form, in authorized denominations, and in aggregate Original Principal Amount equal to the Original Principal Amount of the Global Series A Debentures in exchange for such Global Series A Debentures. Upon the exchange of Global Series A Debentures for such Series A Debentures in definitive registered form without coupons, in authorized denominations, the Global Series A Debentures shall be canceled by the Trustee. Such Series A Debentures in definitive registered form issued in exchange for Global Series A Debentures pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Series A Debentures to the Persons in whose names such Series A Debentures are so registered. 6 Section 2.5 Interest. (a) Each Series A Debenture will bear interest and, following the Remarketing Settlement Date, interest or Accreted Interest, as applicable, all as provided in the form of Series A Debentures set forth in Section 4.1 hereof. (b) The Company shall have the right to defer the payment of cash interest on the Series A Debentures, as provided in Section 4.01 of the Base Indenture, for one or more Deferral Periods of not longer than five years each. The Company shall give the Trustee notice of its election to begin any such Deferral Period at least five Business Days prior to the earlier of (i) the next succeeding date on which Distributions on the Trust Preferred Securities would be payable but for such deferral, and (ii) the date on which the Property Trustee is required to give notice to holders of the Trust Preferred Securities of the Record Date or the date such Distributions are payable, but in any event not less than five Business Days prior to such Record Date, provided, however, that in no event shall such notice of election be sent more than fifteen Business Days prior to the date on which payments of all amounts then due in respect of the Trust Preferred Securities are scheduled to occur. (c) The Series A Debentures are not entitled to any sinking fund payments. Section 2.6 Redemption of the Series A Debentures. (a) The Series A Debentures shall not be subject to the right of redemption specified in Section 3.01 of the Base Indenture. (b) If in connection with the Remarketing the Series A Debentures become redeemable at the option of the Company, any such redemption shall be effected in accordance with Article III of the Base Indenture. Section 2.7 Put Right of Holders. If a there has not been a Successful Remarketing prior to February 15, 2009, each Holder of Series A Debentures will have the right to require the Company to purchase all or a portion of its Series A Debentures on such date as described below. Such right will be exercisable only upon delivery of notice to the Trustee (i) for as long as the Series A Debentures are held by the Property Trustee, on or prior to 11:00 A.M., New York City time, on the Business Day immediately prior to February 15, 2009, or (ii) in all other cases, on or prior to 11:00 A.M., New York City time on the second Business Day prior to February 15, 2009. The Company shall purchase such Series A Debentures at a Repayment Price consisting of cash in an amount equal to 100% of the Accreted Principal Amount thereof as of such date, plus a junior subordinated note of the Company (which shall be subordinated and rank junior in right of payment to all of the Company's existing and future Senior Indebtedness), bearing interest at the rate of 4.82% per annum, in the amount of the accrued and unpaid interest (including Additional Interest), if any, to, but excluding such date and payable on August 15, 2010 or, if February 15, 2009 is during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. Settlement of such purchase shall be effected on February 15, 2009. Subject to the foregoing, any such purchase by the Company shall be effected in accordance with Article III of the Base Indenture. 7 Section 2.8 Restrictions on Certain Payments, Including on Deferral of Interest. If there shall have occurred and be continuing any event that, with the giving of notice or the lapse of time, or both, would be an Event of Default with respect to the Series A Debentures of which the Company shall have actual knowledge and which the Company shall not have taken reasonable steps to cure; the Series A Debentures shall be held by the Trust and the Company shall be in default with respect to its payment of any obligations under the Guarantee; or the Company shall have given notice of its election to begin a Deferral Period with respect to the Series A Debentures as provided herein and shall not have rescinded such notice, and such Deferral Period, or any extension thereof, shall be continuing, then the Company covenants and agrees with the Holders that it shall not: (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of capital stock of the Company other than (i) any repurchase, redemption or other acquisition of shares of capital stock of the Company in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or stockholder purchase plan, or (z) the issuance of capital stock of the Company, or securities convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable Event of Default, Default or Deferral Period, as the case may be; (ii) any exchange, redemption or conversion of any class or series of capital stock of the Company, or the capital stock of one of the Company's subsidiaries, for any other class or series of capital stock of the Company, or of any class or series of the Company's indebtedness for any class or series of capital stock of the Company; (iii) any purchase of, or payment of cash in lieu of, fractional interests in shares of capital stock of the Company pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged; (iv) any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto; (v) payments by the Company under any Guarantee related to the Trust Preferred Securities; or (vi) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equal with or junior to such stock; (b) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any debt securities issued by the Company that rank equal with or junior to the Series A Debentures; or 8 (c) make any payment under any guarantee that ranks equally with or junior to the Guarantee related to the Trust Preferred Securities. Section 2.9 Notice of Defaults; Amount Payable upon Acceleration. (a) The Trustee shall provide to the Holders of the Trust Preferred Securities such notices as it shall from time to time provide under Section 6.01 of the Base Indenture. In addition, the Trustee shall provide to the Holders of the Trust Preferred Securities notice of any Event of Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default with respect to the Series A Debentures within 30 days after such Event of Default or other event becomes known to the Trustee. (b) Upon declaration of acceleration of the Maturity of the Series A Debentures pursuant to Section 6.01 of the Base Indenture, the Accreted Principal Amount of and all accrued but unpaid interest on all Series A Debentures shall become due and payable immediately. Section 2.10 CUSIP Numbers. The Company may from time to time obtain CUSIP numbers for the Series A Debentures and, if so, the Trustee shall use CUSIP numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Series A Debentures or as contained in any notice and that reliance may be placed only the other identification numbers printed on the Series A Debentures, and no action shall be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers. Section 2.11 Security Registrar and Paying Agent. The Company initially appoints the Trustee as the Security Registrar and Paying Agent for the Series A Debentures. Section 2.12 Company Elections in Connection with Remarketing. In connection with Remarketings, the Company shall have the right hereunder to change certain terms of the Series A Debentures as provided below in this Section 2.12. By not later than the 25th Business Day prior to each Remarketing Date, the Company will specify the following information or elections in a notice to the Remarketing Agent, the Property Trustee, the Trustee and the Stock Purchase Contract Agent (paragraph (a) through (e) applying only if the Remarketing is Successful and paragraph (f) applying only if the related Remarketing is the Final Failed Remarketing): (a) whether from and after the Remarketing Settlement Date the Series A Debentures will pay interest in cash (it being understood and agreed that, unless the Company affirmatively elects to cause the Series A Debentures to pay interest in cash from and after the Remarketing Settlement Date, interest will not be paid in cash but, instead, will accrete as provided in the Series A Debentures); 9 (b) whether the Stated Maturity of the Series A Debentures will remain at February 15, 2039 or will be changed to an earlier date (specifying such date if applicable); provided, however, that the Stated Maturity of the Series A Debentures may not be changed to a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (c) whether the Series A Debentures will be redeemable at the Company's option on a day prior to the Stated Maturity of the Series A Debentures and, if so, the date on and after which the Series A Debentures may be so redeemed; provided, however, that an early redemption date may not be a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (d) whether the Company elects, in connection with the Remarketing, to add any additional financial covenants to the Indenture, including the form of supplemental indenture proposed to be entered into in order to give effect to any such additional financial covenants; (e) whether in connection with such Remarketing the Company is exercising its right under Section 6.2 of this First Supplemental Indenture to cause the subordination provisions in the Indenture applicable to the Series A Debentures to no longer be of force and effect from and after the then current Remarketing Settlement Date; and if so, whether it also elects that the Series A Debentures shall no longer be subject to the interest deferral provisions of Section 4.01 of the Base Indenture; and (f) if the related Remarketing is the Final Failed Remarketing: (i) whether the Stated Maturity of the Series A Debentures will remain at February 15, 2039 or will be changed to an earlier date (specifying such date if applicable); and (ii) whether the Series A Debentures will be redeemable at the Company's option on a date prior to the Stated Maturity of the Series A Debentures and, if so, the date on and after which the Series A Debentures may be so redeemed; provided, however, any changed Stated Maturity of the Series A Debentures determined pursuant to clause (i) or early redemption date determined pursuant to clause (ii) may not be a date earlier than the second anniversary of the Stock Purchase Date or, if February 15, 2009 occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. Prior to an Early Termination Event, any such elections made by the Company as Sponsor pursuant to the Trust Agreement shall, upon successful completion of a Remarketing, automatically apply and come into effect in respect of the Series A Debentures. In the event of an Early Termination Event, the provisions of Article X of the Trust Agreement shall be deemed thereafter to apply, mutatis mutandis, to any Remarketing of the Series A Debentures, and the Company and the Trustee shall promptly enter into a supplemental indenture, in form reasonably satisfactory to the Trustee, making provision for remarketing and reset mechanics, including notices in respect thereof, on the basis set forth in such Article X. 10 ARTICLE III EXPENSES Section 3.1 Expenses. In connection with the offering, sale and issuance of the Series A Debentures to the Property Trustee and in connection with the sale of the Trust Preferred Securities by the Trust, the Company, in its capacity as borrower with respect to the Series A Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Series A Debentures, including commissions to the underwriters payable pursuant to the Underwriting Agreement and compensation, fees and expenses (including reasonable counsel fees and expenses) of the Trustee under the Indenture in accordance with the provisions of the Indenture; and (b) be responsible for and shall pay all debts and obligations and all costs and expenses of the Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Trust), the offering, sale and issuance of the Trust Preferred Securities (including commissions to the underwriters in connection therewith), the fees and expenses (including reasonable counsel fees and expenses) of the Property Trustee, the Delaware Trustee and the Administrative Trustees, the costs and expenses relating to the operation of the Trust, including, without limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services, expenses for printing and engraving and computing or accounting equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone and other telecommunications expenses and costs and expenses incurred in connection with the acquisition, financing, and disposition of Trust assets and the enforcement by the Property Trustee of the rights of the Holders of the Series A Debentures. The Company's obligations under this Section 3.1 shall be for the benefit of, and shall be enforceable by, any person to whom such debts, obligations and costs are owed (a "Creditor") whether or not such Creditor has received notice hereof. Any such Creditor may enforce the Company's obligations under this Section 3.1 directly against the Company and the Company irrevocably waives any right or remedy to require that any such Creditor take any action against the Trust or any other Person before proceeding against the Company. The Company agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 3.1. ARTICLE IV FORM OF SERIES A DEBENTURES Section 4.1 Form of Series A Debentures. The Series A Debentures and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the following forms: 11 [IF THE SERIES A DEBENTURE IS TO BE A GLOBAL SERIES A DEBENTURE, INSERT - This Series A Debenture is a Global Series A Debenture within the meaning of the Indenture (as defined on the reverse hereof) and is registered in the name of the Depositary or a nominee of the Depositary. This Series A Debenture is exchangeable for Series A Debentures registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Series A Debenture (other than a transfer of this Series A Debenture as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Series A Debenture is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Series A Debenture issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.] 12 No. ____________________ Original Principal Amount: $____ Issue Date: June 21, 2005 CUSIP No. _______________________ METLIFE, INC. 4.82% JUNIOR SUBORDINATED DEBT SECURITIES, SERIES A, DUE 2039 METLIFE, INC., a Delaware corporation (the "Company", which term includes any successor corporation under the Indenture (as defined on the reverse hereof)) for value received, hereby promises to pay to J.P. Morgan Trust Company, National Association, AS PROPERTY TRUSTEE, the Accreted Principal Amount (as defined in the Indenture) on February 15, 2039 or such earlier date as may be specified by the Company following a Remarketing (as defined in the Indenture) (such date is hereinafter referred to as the "Stated Maturity Date"). This Series A Debenture shall bear interest and Accreted Interest (as defined in the Indenture) as specified on the reverse hereof and in the Indenture. This Series A Debenture shall not be entitled to any benefit under the Indenture, be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been executed by the Trustee. The provisions of this Series A Debenture are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, the Company has caused this instrument to be executed. Dated: METLIFE, INC. By: _________________________________ Name: Title: Attest By: ________________________ Name: Title: 13 CERTIFICATE OF AUTHENTICATION This is one of the Series A Debentures referred to in the Indenture. Dated: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: _________________________________ Authorized Signatory 14 (FORM OF REVERSE OF SERIES A DEBENTURE) This Series A Debenture is one of a duly authorized series (the "Series A Debentures") of the Securities (as defined in the Base Indenture) of the Company, issued under and pursuant to a Indenture, dated as of June 21, 2005 (the "Base Indenture"), between the Company and J.P. Morgan Trust Company, National Association (the "Trustee"), as amended and supplemented by the First Supplemental Indenture, dated as of June 21, 2005 between the Company and the Trustee (the "First Supplemental Indenture", and together with the Base Indenture, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Series A Debentures. By the terms of the Indenture, the Securities are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This Series A Debenture will bear interest from June 21, 2005 or from the most recent date to which interest has been paid or duly provided for, at the rate per annum equal to 4.82%, subject to reset as set forth below; in addition, each installment of interest that would otherwise have been due and payable during any Deferral Period shall bear Additional Interest to the extent permitted by applicable law, which shall accrue at the rate per annum at which interest accrues in respect of the principal of the Series A Debentures, compounded quarterly prior to the Stock Purchase Date, and semi-annually thereafter, from the applicable Interest Payment Date. Subject to the Company's right to defer interest payments as provided in the Indenture, such interest shall be payable, (1) prior to the Stock Purchase Date, quarterly in arrears on February 15, May 15, August 15 and November 15 of each year (each, an "Interest Payment Date"), commencing August 15, 2005, and (2) after the Stock Purchase Date, if the Series A Debentures continue to bear cash interest, semi-annually in arrears on the Interest Payment Dates following six months and twelve months after the Stock Purchase Date and thereafter on the respective anniversaries thereof. Interest on this Series A Debenture shall be calculated on the basis of a 360-day year composed of twelve 30-day months. Interest payable on this Series A Debenture on any Interest Payment Date will include interest for the immediately preceding Interest Period. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Series A Debenture (or one or more Predecessor Series A Debenture) is registered at the close of business on the regular record date for such interest payment, which shall be the first day of the month in which such interest payment is due. Any interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Series A Debenture (or one or More Predecessor Series A Debenture) is registered at the close of business on a special record date for the payment of such Defaulted Interest to be fixed by the Company, notice whereof shall be given to the Holders of Series A Debenture not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Series A Debentures may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. From and after the Stock Purchase Date, the Company will no longer be required to pay cash interest unless the Company elects prior to the Remarketing that following the Remarketing 15 the Series A Debentures will bear cash interest pursuant to the Indenture. From and after the Stock Purchase Date, the Original Principal Amount of this Series A Debenture shall accrete daily at the Applicable Yield for each Interest Period, which shall be 0% during any period for which the Company has elected pursuant to the Indenture that the Series A Debentures will bear cash interest. If the Accreted Principal Amount hereof or any portion of such Accreted Principal Amount is not paid when due (whether upon acceleration, upon the date set for payment of the Redemption Price or upon the Stated Maturity of this Series A Debenture) or if interest due hereon (or any portion of such interest), is not paid when due, then in each such case the overdue amount shall, to the extent permitted by law, bear interest at the rate then borne by this Series A Debenture or, if any overdue amount exists on or after the Repurchase Settlement Date, at the Applicable Yield or Reset Yield or Reset Rate, if any, of this Series A Debenture for the applicable Interest Period, compounded at the end of such Interest Period, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable as set forth in the Indenture. Subject to the terms and conditions of the Indenture, the Company will make payments in respect of the Redemption Price and at the Stated Maturity of the Series A Debentures to Holders who surrender Series A Debentures to a Paying Agent to collect such payments in respect of the Series A Debentures; provided that if any Redemption Date is an Interest Payment Date, accrued and unpaid interest shall be paid to the Holder of record as of the applicable regular record date. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest on all Global Series A Debentures. If any Interest Payment Date (other than an Interest Payment Date coinciding with the Stated Maturity or earlier Redemption Date) falls on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Interest Payment Date to such next succeeding Business Day, but if that Business Day is in the next succeeding calendar year, then that payment shall be made on the immediately preceding Business Day, with the same force and effect as if made on that date. If the Stated Maturity or Redemption Date of this Series A Debenture would fall on a day that is not a Business Day, the required payment of interest, if any, and principal will be made on the next succeeding Business Day and no interest on such payment will accrue and no principal will accrete for the period from and after the Stated Maturity or Redemption Date to such next succeeding Business Day. No sinking fund is provided for the Series A Debentures. Prior to the Remarketing Settlement Date, the Series A Debentures shall not be redeemable at the option of the Company. If the Company so specifies in connection with the Remarketing, the Series A Debentures shall be redeemable on and after the date so specified by the Company for cash as a whole, or from time to time in part, at the option of the Company at a Redemption Price equal to 100% of the Accreted Principal Amount of the Series A Debentures, plus accrued and unpaid interest to, but excluding, the Redemption Date. 16 If the Company redeems less than all of the outstanding Series A Debentures, the Trustee will select the Series A Debentures to be redeemed (i) by lot; (ii) pro rata; or (iii) by another method the Trustee considers fair and appropriate. The Company may not redeem less than all of the outstanding Series A Debentures if the Accreted Principal Amount has been accelerated and such acceleration has not been rescinded. Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Series A Debentures to be redeemed at the Holder's registered address. If money sufficient to pay the Redemption Price of all Series A Debentures (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to or on the Redemption Date, immediately after such Redemption Date interest shall cease to accrue and principal will cease to accrete on such Series A Debentures or portions thereof. Series A Debentures in denominations larger than $1,000 Original Principal Amount may be redeemed in part but only in integral multiples of $1,000. If a Remarketing occurs, then the Series A Debentures shall be remarketed and the Reset Yield or Reset Rate, as the case may be, shall be established as set forth in the Indenture. If there has not been a Successful Remarketing prior to February 15, 2009, each Holder of Series A Debentures will have the right to require the Company to purchase all or a portion of its Series A Debentures on such date, as set forth in the Indenture. The Company shall purchase such Series A Debentures at a Repayment Price consisting of cash in an amount equal to 100% of the Accreted Principal Amount thereof as of such date, plus a note of the Company, bearing interest at the rate of 4.82% per annum, in the amount of the accrued and unpaid interest (including Additional Interest), if any, to, but excluding such date and payable on August 15, 2010 or, if February 15, 2009 is during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the Accreted Principal Amount of all of the Series A Debentures may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Series A Debentures at the time Outstanding (as defined in the Indenture) to execute supplemental indentures for the purpose of, among other things, adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Series A Debentures; provided, however, that, among other things, no such supplemental indenture shall (i) reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon without the consent of the Holder of each Series A Debenture so affected, or (ii) reduce the aforesaid percentage of Series A Debentures, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Series A Debenture then Outstanding and affected thereby. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Series A Debentures at the time Outstanding affected thereby, on behalf of all of the Holders of the Series A Debentures, to waive a default or 17 Event of Default with respect to the Series A Debentures, and its consequences, except a default or Event of Default in the payment of the principal of or interest on any of the Series A Debentures or a default in respect of a provision that under Article IX of the Base Indenture cannot be amended without the consent of each holder affected thereby. Any such consent or waiver by the registered Holder of this Series A Debenture (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Series A Debenture and of any Series A Debenture issued in exchange for or in place hereof (whether by registration of transfer or otherwise) irrespective of whether or not any notation of such consent or waiver is made upon this Series A Debenture. No reference herein to the Indenture and no provision of this Series A Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Series A Debenture at the time and place and at the rate and in the money herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, this Series A Debenture is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Series A Debenture for registration of transfer at the office or agency of the Trustee in The City of New York and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Series A Debentures of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in relation thereto. Prior to due presentment for registration of transfer of this Series A Debenture, the Company, the Trustee, any paying agent and the Security Registrar may deem and treat the registered holder hereof as the absolute owner hereof (whether or not this Series A Debenture shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of or the interest on this Series A Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. The Indenture imposes certain limitations on the ability of the Company to, among other things, merge or consolidate with any other Person or sell, assign, transfer, lease or convey all or substantially all of its properties and assets. All such covenants and limitations are subject to a 18 number of important qualifications and exceptions. The Company must report periodically to the Trustee on compliance with the covenants in the Indenture. The Series A Debentures are issuable only in registered form without coupons, in denominations of $1,000 Original Principal Amount and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series A Debentures so issued are exchangeable for a like aggregate principal amount of Series A Debentures of a different authorized denomination, as requested by the Holder surrendering the same. All terms used in this Series A Debenture that are defined in the Indenture shall have the meanings assigned to them in the Indenture. This Series A Debenture 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. 19 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series A Debenture to: ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Insert assignee's social security or tax identification number) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Insert address and zip code of assignee) agent to transfer this Series A Debenture on the books of the Security Registrar. The agent may substitute another to act for him or her. Dated: Signature: Signature Guarantee: (Sign exactly as your name appears on the other side of this Series A Debenture) Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. 20 ARTICLE V ORIGINAL ISSUE OF SERIES A DEBENTURES Section 5.1 Original Issue of Series A Debentures. Series A Debentures in the aggregate principal amount of $1,067,000,000 may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Series A Debentures in accordance with a Company Order. The Issue Date of the Series A Debentures shall be deemed to be June 21, 2005. ARTICLE VI EVENTS OF DEFAULT, WAIVER AND NOTICE Section 6.1 Event of Default (a) An "Event of Default," when used in the Indenture with respect to the Series A Debentures, means any one or more of the following events that shall have occurred and be continuing: (i) the Company defaults in the payment of any installment of interest (including Additional Interest) upon the Series A Debentures, as and when the same shall become due and payable, and continuance of such default for a period of 20 consecutive quarters; provided, however, that during any Deferral Period for the Series A Debentures, failure to pay interest on the Series A Debentures shall not constitute a default in the payment of interest for this purpose; (ii) the Company defaults in the payment of the principal of the Series A Debentures as and when the same shall become due and payable whether at maturity, upon redemption, because of acceleration or otherwise, or in any payment required by any sinking or analogous fund establishment with respect to the Series A Debentures; or (iii) the entry by a court of competent jurisdiction of: (A) a decree or order for relief in respect of the Company in an involuntary proceeding under any applicable Bankruptcy Law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; (B) a decree or order adjudging the Company to be insolvent, or approving a petition seeking reorganization, arrangement, adjustment or composition of the Company and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (C) a final and non-appealable order appointing a Custodian (as defined in the Base Indenture) of the Company or MetLife Bank, National Association ("MetLife Bank") or of any substantial part of the property of the Company or MetLife Bank, or ordering the winding up or liquidation of the affairs of the Company or of MetLife Bank; 21 (iv) the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a voluntary case or proceeding; (B) consents to the entry of an order for relief against it in an involuntary case or proceeding; (C) files a petition or answer or consent seeking reorganization or relief or consents to such filing or to the appointment of or taking possession by a Custodian of it or for all or substantially all of its property, and such Custodian is not discharged within 60 days; (D) makes a general assignment for the benefit of its creditors; or (E) admits in writing its inability to pay its debts generally as they become due. (b) If an Event of Default (other than an Event of Default specified in Sections 6.1(a)(iii) and 6.1(a)(iv) hereof) with respect to the Series A Debentures at the time Outstanding occurs and is continuing, either the Trustee or the Holders of no less than 25% in aggregate principal amount of the Series A Debentures then Outstanding, by notice in writing to the Company (and to the Trustee if by such Holders), may declare the Accreted Principal Amount of and all accrued but unpaid interest on all the Series A Debentures to be due and payable immediately, and upon such declaration the same shall become and shall be immediately due and payable. (c) At any time after the principal of the Series A Debentures shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Holders of a majority in aggregate principal amount of the Series A Debentures then Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Series A Debentures and the principal of, and premium, if any, on any and all Series A Debentures that shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest, at 4.82% per annum and the amount payable to the Trustee under Section 7.06 of the Base Indenture, and (ii) any and all Events of Default under the Indenture, other than the nonpayment of Accreted Principal Amount on the Series A Debentures that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.08 of the Base Indenture. No such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon. (d) The Company shall, within 120 days of the end of each fiscal year of the Company ending after the date hereof, furnish to the Trustee an Officers' Certificate stating, to the knowledge of the certifying Officer, as to whether any Event of Default as defined in the Indenture has occurred and is continuing. (e) If the Series A Debentures are held by the Trust or a trustee of the Trust, notwithstanding Section 6.04 of the Base Indenture or any other provision in this Indenture, any registered Holder of the Trust Preferred Securities shall have the right, upon the occurrence of an Event of Default described in Sections 6.1(a)(i) and 6.1(a)(ii) hereof, to institute a suit directly, or to cause the Property Trustee to institute a suit against the Company for enforcement of payment to such Holder of the interest, subject to Section 4.01 of the Base Indenture, on the 22 Series A Debentures; and such right shall not be impaired without the consent of such Holder, subject, however, to the provisions of Article XV of the Base Indenture and Article VII of this First Supplemental Indenture. ARTICLE VII SUBORDINATION Section 7.1 Subordination. The subordination provisions contained in Article XV of the Base Indenture shall apply to the Series A Debentures. For purposes of the Series A Debentures and application of Article XV of the Base Indenture to the Series A Debentures, "Senior Indebtedness" means any obligation of the Company to its creditors, whether outstanding at the date of the execution of this Supplemental Indenture or subsequently incurred, including the items enumerated in clauses(i)-(vii) of the definition of "Senior Indebtedness" in Section 1.01 of the Base Indenture, other than any obligation as to which, in the instrument creating or evidencing the obligation or pursuant to which the obligation is outstanding, it is provided that such obligation is not senior in right of payment to the Series A Debentures, but does not include trade accounts payable or any junior subordinated debt securities underlying Tier 1 eligible trust preferred securities issued in the future or other deeply subordinated capital instruments that the Federal Reserve Board may authorize in the future for inclusion as Tier 1 capital. The Series A Debentures shall rank equal with, and shall not be senior in right of payment to, the Company's 4.91% Junior Subordinated Securities, Series B, due 2040 to be issued pursuant to the Base Indenture as supplemented by the Second Supplemental Indenture thereto, to be dated the date hereof, and the Preferred Securities Guarantee Agreements to be dated the date hereof. Section 7.2 Company Election to End Subordination. The Company may elect, at any time effective on or after the Stock Purchase Date, including in connection with a Remarketing, that its obligations under the Series A Debentures shall be senior obligations instead of subordinated obligations, in which case the provisions this Article VII and, if the Company so elects, Section 4.01 of the Base Indenture, shall thereafter no longer apply to the Series A Debentures. The Company shall give the Trustee notice of any such election not later than the effective time, and shall promptly issue a press release through Bloomberg Business News or other reasonable means of distribution. Section 7.3 Compliance with Federal Reserve Board Rules. The Company shall not incur any additional indebtedness for borrowed money that ranks pari passu with or junior to the Series A Debentures (if then subject to this Article VII), except in compliance with applicable regulation and guidelines of the Federal Reserve Board. 23 ARTICLE VIII MISCELLANEOUS Section 8.1 Effectiveness. This First Supplemental Indenture will become effective upon its execution and delivery. Section 8.2 Further Assurances. The Company will, at its own cost and expense, execute and deliver any documents or agreements, and take any other actions, which the Trustee or its counsel may from time to time request in order to assure the Trustee of the benefits of the rights granted to the Trustee under the Indenture. Section 8.3 Effect of Recitals. The recitals in this First Supplemental Indenture are made by the Company and not by the Trustee, and the Trustee shall not be responsible for the validity or sufficiency hereof. Section 8.4 Ratification of Base Indenture. The Base Indenture as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture and this First Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. Section 8.5 Governing Law. THE INDENTURE AND EACH SERIES A DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. Section 8.6 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such separate counterparts shall together constitute but one and the same instrument. 24 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized, on the date or dates indicated in the acknowledgments and as of the day and year first above written. METLIFE, INC. By: _________________________________ Name: Title: Attest: _____________________________ Name: Title: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: _________________________________ Name: Title: Attest: _____________________________ Name: Title: 25 EX-4.8 5 y10123exv4w8.txt FORM OF SECOND SUPPLEMENTAL INDENTURE Exhibit 4.8 ================================================================================ METLIFE, INC., ISSUER and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE Second Supplemental Indenture Dated as of June 21, 2005 Supplement to the Indenture of MetLife, Inc. dated as of June 21, 2005 ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS AND SCOPE Section 1.1 Definition of Terms.................................................... 2 Section 1.2 Scope.................................................................. 4 ARTICLE II GENERAL TERMS AND CONDITIONS OF THE SERIES B DEBENTURES Section 2.1 Designation, Principal Amount and Authorized Denomination.............. 4 Section 2.2 Maturity............................................................... 5 Section 2.3 Form and Payment....................................................... 5 Section 2.4 Global Series B Debenture.............................................. 5 Section 2.5 Interest............................................................... 7 Section 2.6 Redemption of the Series B Debentures.................................. 7 Section 2.7 Put Right of Holders................................................... 7 Section 2.8 Restrictions on Certain Payments, Including on Deferral of Interest.... 8 Section 2.9 Notice of Defaults; Amount Payable upon Acceleration................... 9 Section 2.10 CUSIP Numbers.......................................................... 9 Section 2.11 Security Registrar and Paying Agent.................................... 9 Section 2.12 Company Elections in Connection with Remarketing....................... 9 ARTICLE III EXPENSES Section 3.1 Expenses............................................................... 11 ARTICLE IV FORM OF SERIES B DEBENTURES Section 4.1 Form of Series B Debentures............................................ 11 ARTICLE V ORIGINAL ISSUE OF SERIES B DEBENTURES Section 5.1 Original Issue of Series B Debentures.................................. 21 ARTICLE VI EVENTS OF DEFAULT, WAIVER AND NOTICE Section 6.1 Event of Default....................................................... 21 ARTICLE VII SUBORDINATION
i Section 7.1 Subordination.......................................................... 23 Section 7.2 Company Election to End Subordination.................................. 23 Section 7.3 Compliance with Federal Reserve Board Rules............................ 23 ARTICLE VIII MISCELLANEOUS Section 8.1 Effectiveness.......................................................... 24 Section 8.2 Further Assurances..................................................... 24 Section 8.3 Effect of Recitals..................................................... 24 Section 8.4 Ratification of Base Indenture......................................... 24 Section 8.5 Governing Law.......................................................... 24 Section 8.6 Counterparts........................................................... 24
ii THIS SECOND SUPPLEMENTAL INDENTURE, dated as of June 21, 2005 (this "Second Supplemental Indenture"), to the Base Indenture (as defined below), dated as of the date hereof, between METLIFE, INC., a Delaware corporation (the "Company"), and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee under the Indenture (as defined below), a national banking association (the "Trustee"). WHEREAS, the Company and the Trustee have entered into an Indenture, dated as of the date hereof (the "Base Indenture," and together with this Second Supplemental Indenture, the "Indenture"); and WHEREAS, Section 9.01 of the Base Indenture provides that the Base Indenture may be amended without the consent of any Holder (i) to provide for the issuance of and establish the form and terms and conditions of the Securities (as defined in the Base Indenture) of any series as provided in Section 2.01 of the Base Indenture and (ii) to add to, change or eliminate any of the provisions of the Base Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination does not apply to any Security of any series created prior to the execution of the amendment; WHEREAS, the Company has delivered to the Trustee an Opinion of Counsel and an Officers' Certificate pursuant to Section 14.07 of the Base Indenture to the effect that all conditions precedent provided for in the Base Indenture to the Trustee's execution and delivery of this Second Supplemental Indenture have been complied with; WHEREAS, MetLife Capital Trust III, a Delaware statutory trust (the "Trust"), has offered to the public its Series B Trust Preferred Securities (the "Trust Preferred Securities"), representing undivided beneficial interests in the assets of the Trust, and proposes to invest the proceeds from such offering, together with the proceeds of the issuance and sale by the Trust to the Company of its Common Securities (together with the Trust Preferred Securities, the "Trust Securities"), in the Series B Debentures; WHEREAS, the Trust Preferred Securities and the Series B Debentures will be subject to Remarketing, in connection with which certain terms of the Trust Preferred Securities and the Series B Debentures may be changed, all in accordance with the procedures to be set forth in a Remarketing Agreement to be entered into among the Company, the Trust (in the event the Trust Preferred Securities are outstanding on any Remarketing Date), the Stock Purchase Contract Agent and the Remarketing Agent; and WHEREAS, the Company has requested that the Trustee execute and deliver this Second Supplemental Indenture and satisfy all requirements necessary to make this Second Supplemental Indenture a valid instrument in accordance with its terms, and to make the Series B Debentures, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company and all acts and things necessary have been done and performed to make this Second Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this Second Supplemental Indenture has been duly authorized in all respects: NOW, THEREFORE, the Company and the Trustee agree as follows: 1 ARTICLE I DEFINITIONS AND SCOPE Section 1.1 Definition of Terms. Unless the context otherwise requires: (a) a term defined in the Base Indenture has the same meaning when used in this Second Supplemental Indenture unless otherwise specified herein; (b) a term defined anywhere in this Second Supplemental Indenture has the same meaning throughout; (c) the singular includes the plural and vice versa; (d) headings are for convenience of reference only and do not affect interpretation; (e) the following terms have the meanings given to them in the Trust Agreement: Administrative Trustee; Delaware Trustee; Distributions; Initial Liquidation Amount; Property Trustee; Record Date; Remarketing; Remarketing Agent; Remarketing Agreement; Remarketing Date; Remarketing Settlement Date; Trust Preferred Securities Certificate; Stock Purchase Contract Agent and Successful. (f) the following terms have the meanings given to them in this Section 1.1(f): "Accreted Interest" means, for any Interest Period for any Series B Debenture as of any date of determination, (i) the Accreted Principal Amount of such Series B Debenture at the beginning of the Interest Period in which such date occurs, multiplied by (ii) the Applicable Yield for such Interest Period, multiplied by (iii) the quotient of the actual number of days elapsed from and including the first day of such Interest Period, to but excluding the date of determination divided by 360; provided that the Accreted Interest for any full Interest Period shall be calculated by reference to the actual number of days in such Interest Period divided by 360. "Accreted Principal Amount" means, for any Series B Debenture as of any date of determination, (i) the Original Principal Amount of such Series B Debenture, plus (ii) the sum of the Accreted Interest (if any) for each Interest Period concluding on or prior to such date, plus (iii) the Accreted Interest for the Interest Period in which such date occurs as of the date of determination. "Additional Interest" means the interest that shall accrue on any interest on the Series B Debentures the payment of which has not been made on the applicable Interest Payment Date. References herein to "interest" include Additional Interest unless the context otherwise requires. "Applicable Yield" means (1) prior to the Remarketing Settlement Date, 0%, (2) if a Remarketing occurs, unless the Company has elected that the Series B Debentures will 2 bear cash interest, from and after the applicable Remarketing Settlement Date, for any Interest Period, the Reset Yield for such Interest Period and (3) if a Remarketing has occurred and the Company has elected to have the Series B Debentures bear cash interest, 0%. "Collateral Agent" has the meaning set forth in the Stock Purchase Contract Agreement. "Creditor" has the meaning set forth in Section 3.1. "Holder" means a Securityholder (as defined in the Base Indenture) of the Series B Debentures. "Early Termination Event" means the dissolution of the Trust and the distribution of the Series B Debentures held by the Property Trustee to the holders of the Trust Securities issued by the Trust pro rata in accordance with the Trust Agreement. "Final Failed Remarketing" has the meaning set forth in the Stock Purchase Contract Agreement. "Global Series B Debentures" has the meaning set forth in Section 2.4. "Interest Period" means (1) prior to the Stock Purchase Date, the period from and including the most recent Interest Payment Date to which interest has been paid or duly made available for payment (or June 21, 2005 if no interest has been paid or been duly made available for payment) to, but excluding, the next succeeding Interest Payment Date, (2) if a Remarketing occurs, unless the Company has elected that the Series B Debentures will bear cash interest from and after such Remarketing, the period from and including the applicable Remarketing Settlement Date to the Stated Maturity of the Series B Debentures, and (3) if a Remarketing has occurred and the Company has elected to have the Series B Debentures bear cash interest, the period from and including the applicable Remarketing Settlement Date or, if later, the most recent Interest Payment Date to which interest has been paid or duly made available, to but excluding the next succeeding Interest Payment Date, or, if earlier, then the Stated Maturity of the Series B Debentures. "Non Book-Entry Trust Preferred Securities" has the meaning set forth in Section 2.4. "Normal Common Equity Units" has the meaning set forth in the Stock Purchase Contract Agreement. "Original Principal Amount" of a Series B Debenture means the stated Original Principal Amount as set forth on the face of such Series B Debenture. "Reset Rate" means the rate of interest on the Series B Debentures, if any, set in a Remarketing in which the Company elected that the Series B Debentures would pay 3 interest in cash following such Remarketing (defined in the Trust Agreement as the "Reset Rate" applicable in such circumstances). "Reset Yield" means the yield to maturity on the Series B Debentures, if any, set in a Remarketing in which the Company did not elect that the Series B Debentures would pay interest in cash following such Remarketing (defined in the Trust Agreement as the "Reset Rate" applicable in such circumstances). "Series B Debentures" has the meaning set forth in Section 4.1. "Stock Purchase Contract" has the meaning set forth in the Stock Purchase Contract Agreement. "Stock Purchase Contract Agreement" means that certain agreement, dated as of the date hereof, between the Company and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent. "Stock Purchase Date" has the meaning set forth in the Stock Purchase Contract Agreement. "Trust" has the meaning set forth in the recitals hereto. "Trust Agreement" means the Amended and Restated Declaration of Trust, dated as of the date hereof, among the Company, as sponsor, the Property Trustee, the Delaware Trustee and the Administrative Trustees and the several Holders (as defined therein) relating to the Trust. "Trust Securities" has the meaning provided in the recitals hereto. Section 1.2 Scope. The changes, modifications and supplements to the Base Indenture effected by this Second Supplemental Indenture shall only be applicable with respect to, and govern the terms of, the Series B Debentures and shall not apply to any other series of Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates such changes, modifications and supplements. ARTICLE II GENERAL TERMS AND CONDITIONS OF THE SERIES B DEBENTURES Section 2.1 Designation, Principal Amount and Authorized Denomination. There is hereby authorized a series of Securities designated the 4.91% Junior Subordinated Debt Securities, Series B, due 2040 (the "Series B Debentures"), limited in aggregate principal amount to $1,067,000,000, which amount to be issued shall be as set forth in any written order of the Company for the authentication and delivery of Series B Debentures pursuant to the Indenture. The Series B Debentures shall be issuable in denominations of $1,000 Original Principal Amount and integral multiples thereof. 4 Section 2.2 Maturity. The Stated Maturity of the Series B Debentures will be February 15, 2040, subject to change as provided in Section 2.12. Section 2.3 Form and Payment. Except as provided in Section 2.4, the Series B Debentures shall be issued in fully registered definitive form without interest coupons. Principal of and interest on the Series B Debentures issued in definitive form will be payable, the transfer of such Series B Debentures will be registrable and such Series B Debentures will be exchangeable for Series B Debentures bearing identical terms and provisions at the office or agency of the Trustee; provided, however, that payment of interest may be made at the option of the Company by check mailed to the Holder at such address as shall appear in the Register or by wire transfer in immediately available funds to the bank account number of the Holder specified in writing by the Holder and entered in the Register by the Registrar. Notwithstanding the foregoing, so long as the Holder of any Series B Debenture is the Property Trustee, the payment of the principal of and interest (including expenses and taxes of the Trust set forth in Section 3.1 hereof, if any) on such Series B Debentures held by the Property Trustee will be made at such place and to such account as may be designated in writing by the Property Trustee. Section 2.4 Global Series B Debenture. (a) The Depository Trust Company shall serve as the initial Depositary for the Series B Debentures. (b) The Series B Debentures shall be issued initially in fully registered form in the name of the Property Trustee, in its capacity as such. In connection with an Early Termination Event, (i) the Series B Debentures in definitive form may be presented to the Trustee by the Property Trustee for exchange for one or more Global Securities (as defined in the Base Indenture) representing Series B Debentures in an aggregate Original Principal Amount equal to the aggregate Original Principal Amount of all outstanding Series B Debentures (each a "Global Series B Debenture"), to be registered in the name of the Depositary, or its nominee, and delivered by the Property Trustee to the Depositary for crediting to the accounts of its participants pursuant to the instructions of the Administrative Trustees. The Company upon any such presentation shall execute one or more Global Series B Debentures in such aggregate Original Principal Amount and deliver the same to the Trustee for authentication and delivery in accordance with the Indenture. The Trustee, upon receipt of such Global Series B Debentures, together with an Officers' Certificate requesting authentication, will authenticate such Global Series B Debentures. Payments on the Series B Debentures issued as Global Series B Debentures will be made to the Depositary; and (ii) if any Trust Preferred Securities are held in non book-entry definitive form, the Series B Debentures in certificated form may be presented to the Trustee by the Property Trustee and any Trust Preferred Securities Certificate which represents Trust Preferred Securities other 5 than Trust Preferred Securities held by the Depositary or its nominee ("Non Book-Entry Trust Preferred Securities") will be deemed to represent beneficial interests in the Series B Debentures presented to the Trustee by the Property Trustee having an aggregate Original Principal Amount equal to the aggregate Initial Liquidation Amount of the Non Book-Entry Trust Preferred Securities until such Trust Preferred Securities Certificates are presented to the Property Trustee for transfer or reissuance, at which time such Trust Preferred Securities Certificates will be cancelled and a Series B Debenture, registered in the name of the Holder of the Trust Preferred Securities Certificate or the transferee of the Holder of such Trust Preferred Securities Certificate, as the case may be, with an aggregate Original Principal Amount equal to the aggregate Initial Liquidation Amount of the Trust Preferred Securities Certificate cancelled, will be executed by the Company and delivered to the Trustee for authentication and delivery in accordance with the Indenture to such Holder. The Trustee, upon receipt of such Series B Debenture together with an Officers' Certificate requesting authentication, shall authenticate such Series B Debenture. On issue of such Series B Debentures, Series B Debentures with an equivalent aggregate Original Principal Amount that were presented by the Property Trustee to the Trustee will be deemed to have been cancelled. (c) Unless and until it is exchanged for the Series B Debentures in definitive form, a Global Series B Debenture may be transferred, in whole but not in part, only by the Depository or the nominee of the Depository to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary. (d) If after Global Series B Debentures are issued (a) at any time the Depositary for Global Series B Debentures notifies the Company that it is unwilling or unable to continue as Depositary for such Global Series B Debentures or if at any time the Depositary for such Global Series B Debentures shall no longer be a clearing agency registered or in good standing under the Securities Exchange Act of 1934 or other applicable statute or regulation when the Depository is required to be so registered to act as the Depository, and in either case a successor Depositary for such Global Series B Debentures is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or (b) the Company determines in its sole discretion that the Series B Debentures shall no longer be represented by one or more Global Series B Debentures and delivers to the Trustee an Officer's Certificate evidencing such determination, then the Company will execute and the Trustee, upon receipt of an Officer's Certificate evidencing such determination by the Company, will authenticate and deliver Series B Debentures of like tenor in definitive registered form, in authorized denominations, and in aggregate Original Principal Amount equal to the Original Principal Amount of the Global Series B Debentures in exchange for such Global Series B Debentures. Upon the exchange of Global Series B Debentures for such Series B Debentures in definitive registered form without coupons, in authorized denominations, the Global Series B Debentures shall be canceled by the Trustee. Such Series B Debentures in definitive registered form issued in exchange for Global Series B Debentures pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Series B Debentures to the Persons in whose names such Series B Debentures are so registered. 6 Section 2.5 Interest. (a) Each Series B Debenture will bear interest and, following the Remarketing Settlement Date, interest or Accreted Interest, as applicable, all as provided in the form of Series B Debentures set forth in Section 4.1 hereof. (b) The Company shall have the right to defer the payment of cash interest on the Series B Debentures, as provided in Section 4.01 of the Base Indenture, for one or more Deferral Periods of not longer than five years each. The Company shall give the Trustee notice of its election to begin any such Deferral Period at least five Business Days prior to the earlier of (i) the next succeeding date on which Distributions on the Trust Preferred Securities would be payable but for such deferral, and (ii) the date on which the Property Trustee is required to give notice to holders of the Trust Preferred Securities of the Record Date or the date such Distributions are payable, but in any event not less than five Business Days prior to such Record Date, provided, however, that in no event shall such notice of election be sent more than fifteen Business Days prior to the date on which payments of all amounts then due in respect of the Trust Preferred Securities are scheduled to occur. (c) The Series B Debentures are not entitled to any sinking fund payments. Section 2.6 Redemption of the Series B Debentures. (a) The Series B Debentures shall not be subject to the right of redemption specified in Section 3.01 of the Base Indenture. (b) If in connection with the Remarketing the Series B Debentures become redeemable at the option of the Company, any such redemption shall be effected in accordance with Article III of the Base Indenture. Section 2.7 Put Right of Holders. If a there has not been a Successful Remarketing prior to February 15, 2009, each Holder of Series B Debentures will have the right to require the Company to purchase all or a portion of its Series B Debentures on such date as described below. Such right will be exercisable only upon delivery of notice to the Trustee (i) for as long as the Series B Debentures are held by the Property Trustee, on or prior to 11:00 A.M., New York City time, on the Business Day immediately prior to February 15, 2009, or (ii) in all other cases, on or prior to 11:00 A.M., New York City time on the second Business Day prior to February 15, 2009. The Company shall purchase such Series B Debentures at a Repayment Price consisting of cash in an amount equal to 100% of the Accreted Principal Amount thereof as of such date, plus a junior subordinated note of the Company (which shall be subordinated and rank junior in right of payment to all of the Company's existing and future Senior Indebtedness), bearing interest at the rate of 4.91% per annum, in the amount of the accrued and unpaid interest (including Additional Interest), if any, to, but excluding such date and payable on August 15, 2010 or, if February 15, 2009 is during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. Settlement of such purchase shall be effected on February 15, 2009. Subject to the foregoing, any such purchase by the Company shall be effected in accordance with Article III of the Base Indenture. 7 Section 2.8 Restrictions on Certain Payments, Including on Deferral of Interest. If there shall have occurred and be continuing any event that, with the giving of notice or the lapse of time, or both, would be an Event of Default with respect to the Series B Debentures of which the Company shall have actual knowledge and which the Company shall not have taken reasonable steps to cure; the Series B Debentures shall be held by the Trust and the Company shall be in default with respect to its payment of any obligations under the Guarantee; or the Company shall have given notice of its election to begin a Deferral Period with respect to the Series B Debentures as provided herein and shall not have rescinded such notice, and such Deferral Period, or any extension thereof, shall be continuing, then the Company covenants and agrees with the Holders that it shall not: (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of capital stock of the Company other than (i) any repurchase, redemption or other acquisition of shares of capital stock of the Company in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or stockholder purchase plan, or (z) the issuance of capital stock of the Company, or securities convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable Event of Default, Default or Deferral Period, as the case may be; (ii) any exchange, redemption or conversion of any class or series of capital stock of the Company, or the capital stock of one of the Company's subsidiaries, for any other class or series of capital stock of the Company, or of any class or series of the Company's indebtedness for any class or series of capital stock of the Company; (iii) any purchase of, or payment of cash in lieu of, fractional interests in shares of capital stock of the Company pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged; (iv) any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto; (v) payments by the Company under any Guarantee related to the Trust Preferred Securities; or (vi) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equal with or junior to such stock; (b) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any debt securities issued by the Company that rank equal with or junior to the Series B Debentures; or 8 (c) make any payment under any guarantee that ranks equally with or junior to the Guarantee related to the Trust Preferred Securities. Section 2.9 Notice of Defaults; Amount Payable upon Acceleration. (a) The Trustee shall provide to the Holders of the Trust Preferred Securities such notices as it shall from time to time provide under Section 6.01 of the Base Indenture. In addition, the Trustee shall provide to the Holders of the Trust Preferred Securities notice of any Event of Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default with respect to the Series B Debentures within 30 days after such Event of Default or other event becomes known to the Trustee. (b) Upon declaration of acceleration of the Maturity of the Series B Debentures pursuant to Section 6.01 of the Base Indenture, the Accreted Principal Amount of and all accrued but unpaid interest on all Series B Debentures shall become due and payable immediately. Section 2.10 CUSIP Numbers. The Company may from time to time obtain CUSIP numbers for the Series B Debentures and, if so, the Trustee shall use CUSIP numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Series B Debentures or as contained in any notice and that reliance may be placed only the other identification numbers printed on the Series B Debentures, and no action shall be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers. Section 2.11 Security Registrar and Paying Agent. The Company initially appoints the Trustee as the Security Registrar and Paying Agent for the Series B Debentures. Section 2.12 Company Elections in Connection with Remarketing. In connection with Remarketings, the Company shall have the right hereunder to change certain terms of the Series B Debentures as provided below in this Section 2.12. By not later than the 25th Business Day prior to each Remarketing Date, the Company will specify the following information or elections in a notice to the Remarketing Agent, the Property Trustee, the Trustee and the Stock Purchase Contract Agent (paragraph (a) through (e) applying only if the Remarketing is Successful and paragraph (f) applying only if the related Remarketing is the Final Failed Remarketing): (a) whether from and after the Remarketing Settlement Date the Series B Debentures will pay interest in cash (it being understood and agreed that, unless the Company affirmatively elects to cause the Series B Debentures to pay interest in cash from and after the Remarketing Settlement Date, interest will not be paid in cash but, instead, will accrete as provided in the Series B Debentures); 9 (b) whether the Stated Maturity of the Series B Debentures will remain at February 15, 2040 or will be changed to an earlier date (specifying such date if applicable); provided, however, that the Stated Maturity of the Series B Debentures may not be changed to a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (c) whether the Series B Debentures will be redeemable at the Company's option on a day prior to the Stated Maturity of the Series B Debentures and, if so, the date on and after which the Series B Debentures may be so redeemed; provided, however, that an early redemption date may not be a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (d) whether the Company elects, in connection with the Remarketing, to add any additional financial covenants to the Indenture, including the form of supplemental indenture proposed to be entered into in order to give effect to any such additional financial covenants; (e) whether in connection with such Remarketing the Company is exercising its right under Section 6.2 of this Second Supplemental Indenture to cause the subordination provisions in the Indenture applicable to the Series B Debentures to no longer be of force and effect from and after the then current Remarketing Settlement Date; and if so, whether it also elects that the Series B Debentures shall no longer be subject to the interest deferral provisions of Section 4.01 of the Base Indenture; and (f) if the related Remarketing is the Final Failed Remarketing: (i) whether the Stated Maturity of the Series B Debentures will remain at February 15, 2040 or will be changed to an earlier date (specifying such date if applicable); and (ii) whether the Series B Debentures will be redeemable at the Company's option on a date prior to the Stated Maturity of the Series B Debentures and, if so, the date on and after which the Series B Debentures may be so redeemed; provided, however, any changed Stated Maturity of the Series B Debentures determined pursuant to clause (i) or early redemption date determined pursuant to clause (ii) may not be a date earlier than the second anniversary of the Stock Purchase Date or, if February 15, 2009 occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. Prior to an Early Termination Event, any such elections made by the Company as Sponsor pursuant to the Trust Agreement shall, upon successful completion of a Remarketing, automatically apply and come into effect in respect of the Series B Debentures. In the event of an Early Termination Event, the provisions of Article X of the Trust Agreement shall be deemed thereafter to apply, mutatis mutandis, to any Remarketing of the Series B Debentures, and the Company and the Trustee shall promptly enter into a supplemental indenture, in form reasonably satisfactory to the Trustee, making provision for remarketing and reset mechanics, including notices in respect thereof, on the basis set forth in such Article X. 10 ARTICLE III EXPENSES Section 3.1 Expenses. In connection with the offering, sale and issuance of the Series B Debentures to the Property Trustee and in connection with the sale of the Trust Preferred Securities by the Trust, the Company, in its capacity as borrower with respect to the Series B Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Series B Debentures, including commissions to the underwriters payable pursuant to the Underwriting Agreement and compensation, fees and expenses (including reasonable counsel fees and expenses) of the Trustee under the Indenture in accordance with the provisions of the Indenture; and (b) be responsible for and shall pay all debts and obligations and all costs and expenses of the Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Trust), the offering, sale and issuance of the Trust Preferred Securities (including commissions to the underwriters in connection therewith), the fees and expenses (including reasonable counsel fees and expenses) of the Property Trustee, the Delaware Trustee and the Administrative Trustees, the costs and expenses relating to the operation of the Trust, including, without limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services, expenses for printing and engraving and computing or accounting equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone and other telecommunications expenses and costs and expenses incurred in connection with the acquisition, financing, and disposition of Trust assets and the enforcement by the Property Trustee of the rights of the Holders of the Series B Debentures. The Company's obligations under this Section 3.1 shall be for the benefit of, and shall be enforceable by, any person to whom such debts, obligations and costs are owed (a "Creditor") whether or not such Creditor has received notice hereof. Any such Creditor may enforce the Company's obligations under this Section 3.1 directly against the Company and the Company irrevocably waives any right or remedy to require that any such Creditor take any action against the Trust or any other Person before proceeding against the Company. The Company agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 3.1. ARTICLE IV FORM OF SERIES B DEBENTURES Section 4.1 Form of Series B Debentures. The Series B Debentures and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the following forms: 11 [IF THE SERIES B DEBENTURE IS TO BE A GLOBAL SERIES B DEBENTURE, INSERT - This Series B Debenture is a Global Series B Debenture within the meaning of the Indenture (as defined on the reverse hereof) and is registered in the name of the Depositary or a nominee of the Depositary. This Series B Debenture is exchangeable for Series B Debentures registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Series B Debenture (other than a transfer of this Series B Debenture as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Series B Debenture is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Series B Debenture issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.] 12 No. ____________________ Original Principal Amount: $____ Issue Date: June 21, 2005 CUSIP No. _______________________ METLIFE, INC. 4.91% JUNIOR SUBORDINATED DEBT SECURITIES, SERIES B, DUE 2040 METLIFE, INC., a Delaware corporation (the "Company", which term includes any successor corporation under the Indenture (as defined on the reverse hereof)) for value received, hereby promises to pay to J.P. Morgan Trust Company, National Association, AS PROPERTY TRUSTEE, the Accreted Principal Amount (as defined in the Indenture) on February 15, 2040 or such earlier date as may be specified by the Company following a Remarketing (as defined in the Indenture) (such date is hereinafter referred to as the "Stated Maturity Date"). This Series B Debenture shall bear interest and Accreted Interest (as defined in the Indenture) as specified on the reverse hereof and in the Indenture. This Series B Debenture shall not be entitled to any benefit under the Indenture, be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been executed by the Trustee. The provisions of this Series B Debenture are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, the Company has caused this instrument to be executed. Dated: METLIFE, INC. By: ____________________________ Name: Title: Attest By: ________________________ Name: Title: 13 CERTIFICATE OF AUTHENTICATION This is one of the Series B Debentures referred to in the Indenture. Dated: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: ____________________________ Authorized Signatory 14 (FORM OF REVERSE OF SERIES B DEBENTURE) This Series B Debenture is one of a duly authorized series (the "Series B Debentures") of the Securities (as defined in the Base Indenture) of the Company, issued under and pursuant to a Indenture, dated as of June 21, 2005 (the "Base Indenture"), between the Company and J.P. Morgan Trust Company, National Association (the "Trustee"), as amended and supplemented by the Second Supplemental Indenture, dated as of June 21, 2005 between the Company and the Trustee (the "Second Supplemental Indenture", and together with the Base Indenture, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Series B Debentures. By the terms of the Indenture, the Securities are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This Series B Debenture will bear interest from June 21, 2005 or from the most recent date to which interest has been paid or duly provided for, at the rate per annum equal to 4.91%, subject to reset as set forth below; in addition, each installment of interest that would otherwise have been due and payable during any Deferral Period shall bear Additional Interest to the extent permitted by applicable law, which shall accrue at the rate per annum at which interest accrues in respect of the principal of the Series B Debentures, compounded quarterly prior to the Stock Purchase Date, and semi-annually thereafter, from the applicable Interest Payment Date. Subject to the Company's right to defer interest payments as provided in the Indenture, such interest shall be payable, (1) prior to the Stock Purchase Date, quarterly in arrears on February 15, May 15, August 15 and November 15 of each year (each, an "Interest Payment Date"), commencing August 15, 2005, and (2) after the Stock Purchase Date, if the Series B Debentures continue to bear cash interest, semi-annually in arrears on the Interest Payment Dates following six months and twelve months after the Stock Purchase Date and thereafter on the respective anniversaries thereof. Interest on this Series B Debenture shall be calculated on the basis of a 360-day year composed of twelve 30-day months. Interest payable on this Series B Debenture on any Interest Payment Date will include interest for the immediately preceding Interest Period. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Series B Debenture (or one or more Predecessor Series B Debenture) is registered at the close of business on the regular record date for such interest payment, which shall be the first day of the month in which such interest payment is due. Any interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Series B Debenture (or one or More Predecessor Series B Debenture) is registered at the close of business on a special record date for the payment of such Defaulted Interest to be fixed by the Company, notice whereof shall be given to the Holders of Series B Debenture not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Series B Debentures may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. From and after the Stock Purchase Date, the Company will no longer be required to pay cash interest unless the Company elects prior to the Remarketing that following the Remarketing 15 the Series B Debentures will bear cash interest pursuant to the Indenture. From and after the Stock Purchase Date, the Original Principal Amount of this Series B Debenture shall accrete daily at the Applicable Yield for each Interest Period, which shall be 0% during any period for which the Company has elected pursuant to the Indenture that the Series B Debentures will bear cash interest. If the Accreted Principal Amount hereof or any portion of such Accreted Principal Amount is not paid when due (whether upon acceleration, upon the date set for payment of the Redemption Price or upon the Stated Maturity of this Series B Debenture) or if interest due hereon (or any portion of such interest), is not paid when due, then in each such case the overdue amount shall, to the extent permitted by law, bear interest at the rate then borne by this Series B Debenture or, if any overdue amount exists on or after the Repurchase Settlement Date, at the Applicable Yield or Reset Yield or Reset Rate, if any, of this Series B Debenture for the applicable Interest Period, compounded at the end of such Interest Period, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable as set forth in the Indenture. Subject to the terms and conditions of the Indenture, the Company will make payments in respect of the Redemption Price and at the Stated Maturity of the Series B Debentures to Holders who surrender Series B Debentures to a Paying Agent to collect such payments in respect of the Series B Debentures; provided that if any Redemption Date is an Interest Payment Date, accrued and unpaid interest shall be paid to the Holder of record as of the applicable regular record date. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest on all Global Series B Debentures. If any Interest Payment Date (other than an Interest Payment Date coinciding with the Stated Maturity or earlier Redemption Date) falls on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Interest Payment Date to such next succeeding Business Day, but if that Business Day is in the next succeeding calendar year, then that payment shall be made on the immediately preceding Business Day, with the same force and effect as if made on that date. If the Stated Maturity or Redemption Date of this Series B Debenture would fall on a day that is not a Business Day, the required payment of interest, if any, and principal will be made on the next succeeding Business Day and no interest on such payment will accrue and no principal will accrete for the period from and after the Stated Maturity or Redemption Date to such next succeeding Business Day. No sinking fund is provided for the Series B Debentures. Prior to the Remarketing Settlement Date, the Series B Debentures shall not be redeemable at the option of the Company. If the Company so specifies in connection with the Remarketing, the Series B Debentures shall be redeemable on and after the date so specified by the Company for cash as a whole, or from time to time in part, at the option of the Company at a Redemption Price equal to 100% of the Accreted Principal Amount of the Series B Debentures, plus accrued and unpaid interest to, but excluding, the Redemption Date. 16 If the Company redeems less than all of the outstanding Series B Debentures, the Trustee will select the Series B Debentures to be redeemed (i) by lot; (ii) pro rata; or (iii) by another method the Trustee considers fair and appropriate. The Company may not redeem less than all of the outstanding Series B Debentures if the Accreted Principal Amount has been accelerated and such acceleration has not been rescinded. Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Series B Debentures to be redeemed at the Holder's registered address. If money sufficient to pay the Redemption Price of all Series B Debentures (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to or on the Redemption Date, immediately after such Redemption Date interest shall cease to accrue and principal will cease to accrete on such Series B Debentures or portions thereof. Series B Debentures in denominations larger than $1,000 Original Principal Amount may be redeemed in part but only in integral multiples of $1,000. If a Remarketing occurs, then the Series B Debentures shall be remarketed and the Reset Yield or Reset Rate, as the case may be, shall be established as set forth in the Indenture. If there has not been a Successful Remarketing prior to February 15, 2009, each Holder of Series B Debentures will have the right to require the Company to purchase all or a portion of its Series B Debentures on such date, as set forth in the Indenture. The Company shall purchase such Series B Debentures at a Repayment Price consisting of cash in an amount equal to 100% of the Accreted Principal Amount thereof as of such date, plus a note of the Company, bearing interest at the rate of 4.91% per annum, in the amount of the accrued and unpaid interest (including Additional Interest), if any, to, but excluding such date and payable on August 15, 2010 or, if February 15, 2009 is during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the Accreted Principal Amount of all of the Series B Debentures may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Series B Debentures at the time Outstanding (as defined in the Indenture) to execute supplemental indentures for the purpose of, among other things, adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Series B Debentures; provided, however, that, among other things, no such supplemental indenture shall (i) reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon without the consent of the Holder of each Series B Debenture so affected, or (ii) reduce the aforesaid percentage of Series B Debentures, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Series B Debenture then Outstanding and affected thereby. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Series B Debentures at the time Outstanding affected thereby, on behalf of all of the Holders of the Series B Debentures, to waive a default or 17 Event of Default with respect to the Series B Debentures, and its consequences, except a default or Event of Default in the payment of the principal of or interest on any of the Series B Debentures or a default in respect of a provision that under Article IX of the Base Indenture cannot be amended without the consent of each holder affected thereby. Any such consent or waiver by the registered Holder of this Series B Debenture (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Series B Debenture and of any Series B Debenture issued in exchange for or in place hereof (whether by registration of transfer or otherwise) irrespective of whether or not any notation of such consent or waiver is made upon this Series B Debenture. No reference herein to the Indenture and no provision of this Series B Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Series B Debenture at the time and place and at the rate and in the money herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, this Series B Debenture is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Series B Debenture for registration of transfer at the office or agency of the Trustee in The City of New York and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Series B Debentures of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in relation thereto. Prior to due presentment for registration of transfer of this Series B Debenture, the Company, the Trustee, any paying agent and the Security Registrar may deem and treat the registered holder hereof as the absolute owner hereof (whether or not this Series B Debenture shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of or the interest on this Series B Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. The Indenture imposes certain limitations on the ability of the Company to, among other things, merge or consolidate with any other Person or sell, assign, transfer, lease or convey all or substantially all of its properties and assets. All such covenants and limitations are subject to a 18 number of important qualifications and exceptions. The Company must report periodically to the Trustee on compliance with the covenants in the Indenture. The Series B Debentures are issuable only in registered form without coupons, in denominations of $1,000 Original Principal Amount and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Series B Debentures so issued are exchangeable for a like aggregate principal amount of Series B Debentures of a different authorized denomination, as requested by the Holder surrendering the same. All terms used in this Series B Debenture that are defined in the Indenture shall have the meanings assigned to them in the Indenture. This Series B Debenture 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. 19 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series B Debenture to: ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Insert assignee's social security or tax identification number) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Insert address and zip code of assignee) agent to transfer this Series B Debenture on the books of the Security Registrar. The agent may substitute another to act for him or her. Dated: Signature: Signature Guarantee: (Sign exactly as your name appears on the other side of this Series B Debenture) Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. 20 ARTICLE V ORIGINAL ISSUE OF SERIES B DEBENTURES Section 5.1 Original Issue of Series B Debentures. Series B Debentures in the aggregate principal amount of $1,067,000,000 may, upon execution of this Second Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Series B Debentures in accordance with a Company Order. The Issue Date of the Series B Debentures shall be deemed to be June 21, 2005. ARTICLE VI EVENTS OF DEFAULT, WAIVER AND NOTICE Section 6.1 Event of Default (a) An "Event of Default," when used in the Indenture with respect to the Series B Debentures, means any one or more of the following events that shall have occurred and be continuing: (i) the Company defaults in the payment of any installment of interest (including Additional Interest) upon the Series B Debentures, as and when the same shall become due and payable, and continuance of such default for a period of 20 consecutive quarters; provided, however, that during any Deferral Period for the Series B Debentures, failure to pay interest on the Series B Debentures shall not constitute a default in the payment of interest for this purpose; (ii) the Company defaults in the payment of the principal of the Series B Debentures as and when the same shall become due and payable whether at maturity, upon redemption, because of acceleration or otherwise, or in any payment required by any sinking or analogous fund establishment with respect to the Series B Debentures; or (iii) the entry by a court of competent jurisdiction of: (A) a decree or order for relief in respect of the Company in an involuntary proceeding under any applicable Bankruptcy Law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; (B) a decree or order adjudging the Company to be insolvent, or approving a petition seeking reorganization, arrangement, adjustment or composition of the Company and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (C) a final and non-appealable order appointing a Custodian (as defined in the Base Indenture) of the Company or MetLife Bank, National Association ("MetLife Bank") or of any substantial part of the property of the Company or MetLife Bank, or ordering the winding up or liquidation of the affairs of the Company or of MetLife Bank; 21 (iv) the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a voluntary case or proceeding; (B) consents to the entry of an order for relief against it in an involuntary case or proceeding; (C) files a petition or answer or consent seeking reorganization or relief or consents to such filing or to the appointment of or taking possession by a Custodian of it or for all or substantially all of its property, and such Custodian is not discharged within 60 days; (D) makes a general assignment for the benefit of its creditors; or (E) admits in writing its inability to pay its debts generally as they become due. (b) If an Event of Default (other than an Event of Default specified in Sections 6.1(a)(iii) and 6.1(a)(iv) hereof) with respect to the Series B Debentures at the time Outstanding occurs and is continuing, either the Trustee or the Holders of no less than 25% in aggregate principal amount of the Series B Debentures then Outstanding, by notice in writing to the Company (and to the Trustee if by such Holders), may declare the Accreted Principal Amount of and all accrued but unpaid interest on all the Series B Debentures to be due and payable immediately, and upon such declaration the same shall become and shall be immediately due and payable. (c) At any time after the principal of the Series B Debentures shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Holders of a majority in aggregate principal amount of the Series B Debentures then Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Series B Debentures and the principal of, and premium, if any, on any and all Series B Debentures that shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest, at 4.91% per annum and the amount payable to the Trustee under Section 7.06 of the Base Indenture, and (ii) any and all Events of Default under the Indenture, other than the nonpayment of Accreted Principal Amount on the Series B Debentures that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.08 of the Base Indenture. No such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon. (d) The Company shall, within 120 days of the end of each fiscal year of the Company ending after the date hereof, furnish to the Trustee an Officers' Certificate stating, to the knowledge of the certifying Officer, as to whether any Event of Default as defined in the Indenture has occurred and is continuing. (e) If the Series B Debentures are held by the Trust or a trustee of the Trust, notwithstanding Section 6.04 of the Base Indenture or any other provision in this Indenture, any registered Holder of the Trust Preferred Securities shall have the right, upon the occurrence of an Event of Default described in Sections 6.1(a)(i) and 6.1(a)(ii) hereof, to institute a suit directly, or to cause the Property Trustee to institute a suit against the Company for enforcement of payment to such Holder of the interest, subject to Section 4.01 of the Base Indenture, on the 22 Series B Debentures; and such right shall not be impaired without the consent of such Holder, subject, however, to the provisions of Article XV of the Base Indenture and Article VII of this Second Supplemental Indenture. ARTICLE VII SUBORDINATION Section 7.1 Subordination. The subordination provisions contained in Article XV of the Base Indenture shall apply to the Series B Debentures. For purposes of the Series B Debentures and application of Article XV of the Base Indenture to the Series B Debentures, "Senior Indebtedness" means any obligation of the Company to its creditors, whether outstanding at the date of the execution of this Supplemental Indenture or subsequently incurred, including the items enumerated in clauses(i)-(vii) of the definition of "Senior Indebtedness" in Section 1.01 of the Base Indenture, other than any obligation as to which, in the instrument creating or evidencing the obligation or pursuant to which the obligation is outstanding, it is provided that such obligation is not senior in right of payment to the Series B Debentures, but does not include trade accounts payable or any junior subordinated debt securities underlying Tier 1 eligible trust preferred securities issued in the future or other deeply subordinated capital instruments that the Federal Reserve Board may authorize in the future for inclusion as Tier 1 capital. The Series B Debentures shall rank equal with, and shall not be senior in right of payment to, the Company's 4.91% Junior Subordinated Securities, Series B, due 2040 to be issued pursuant to the Base Indenture as supplemented by the Second Supplemental Indenture thereto, to be dated the date hereof, and the Preferred Securities Guarantee Agreements to be dated the date hereof. Section 7.2 Company Election to End Subordination. The Company may elect, at any time effective on or after the Stock Purchase Date, including in connection with a Remarketing, that its obligations under the Series B Debentures shall be senior obligations instead of subordinated obligations, in which case the provisions this Article VII and, if the Company so elects, Section 4.01 of the Base Indenture, shall thereafter no longer apply to the Series B Debentures. The Company shall give the Trustee notice of any such election not later than the effective time, and shall promptly issue a press release through Bloomberg Business News or other reasonable means of distribution. Section 7.3 Compliance with Federal Reserve Board Rules. The Company shall not incur any additional indebtedness for borrowed money that ranks pari passu with or junior to the Series B Debentures (if then subject to this Article VII), except in compliance with applicable regulation and guidelines of the Federal Reserve Board. 23 ARTICLE VIII MISCELLANEOUS Section 8.1 Effectiveness. This Second Supplemental Indenture will become effective upon its execution and delivery. Section 8.2 Further Assurances. The Company will, at its own cost and expense, execute and deliver any documents or agreements, and take any other actions, which the Trustee or its counsel may from time to time request in order to assure the Trustee of the benefits of the rights granted to the Trustee under the Indenture. Section 8.3 Effect of Recitals. The recitals in this Second Supplemental Indenture are made by the Company and not by the Trustee, and the Trustee shall not be responsible for the validity or sufficiency hereof. Section 8.4 Ratification of Base Indenture. The Base Indenture as supplemented by this Second Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture and this Second Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. Section 8.5 Governing Law. THE INDENTURE AND EACH SERIES B DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. Section 8.6 Counterparts. This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such separate counterparts shall together constitute but one and the same instrument. 24 IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized, on the date or dates indicated in the acknowledgments and as of the day and year first above written. METLIFE, INC. By: ____________________________ Name: Title: Attest: __________________________ Name: Title: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: ____________________________ Name: Title: Attest: __________________________ Name: Title: 25 EX-4.16 6 y10123exv4w16.txt FORM OF AMENDED AND RESTATED DECLARATION OF TRUST Exhibit 4.16 - -------------------------------------------------------------------------------- AMENDED AND RESTATED DECLARATION OF TRUST OF METLIFE CAPITAL TRUST II among METLIFE, INC., as Sponsor, J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee, CHASE BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee, the Administrative Trustees (as named herein), and the several Holders of the Trust Securities Dated as of June 21, 2005 - -------------------------------------------------------------------------------- METLIFE, INC. Reconciliation and tie between Trust Indenture Act of 1939 and Amended and Restated Declaration of Trust dated as of June 21, 2005
TRUST INDENTURE ACT SECTION TRUST AGREEMENT SECTION - -------------------- ------------------------------ Section 310(a)(1) 8.7 (a)(2) 8.7 (a)(3) 8.9 (a)(4) 2.7(a)(ii) (b) 8.8 (c) Not applicable Section 311(a) 8.13 (b) 8.13 Section 312(a) 12.10 (b) 12.10 (c) 5.7 Section 313(a) 8.15(a), 8.15(b) (b) 8.15(b) (c) 12.8 (d) 8.15(c) Section 314(a) 8.16 (b) Not applicable (c)(1) 8.17 (c)(2) 8.17 (c)(3) Not applicable (d) Not applicable (e) 1.1, "Officers' Certificates," 8.17 Section 315(a) 8.1(d), (e), 8.3(a) (b) 8.2,12.8 (c) 8.1(c) (d) 8.1, 8.3 (e) 12.10 Section 316(a) Not applicable (a)(1)(A) Not applicable (a)(1)(B) 5.14 (a)(2) Not applicable (b) 5.14 (c) 6.7 Section 317(a)(1) 12.10 (a)(2) 12.10 (b) 5.9, 12.10 Section 318(a) 12.10 (b) 12.10 (c) 12.10
Note: This reconciliation and tie shall not, for any purpose be deemed to be part of the Amended and Restated Declaration of Trust. i TABLE OF CONTENTS
PAGE ARTICLE I DEFINED TERMS............................................................................ 1 Section 1.1. Definitions........................................................................ 1 ARTICLE II CONTINUATION OF THE TRUST................................................................ 13 Section 2.1. Name............................................................................... 13 Section 2.2. Office of the Delaware Trustee; Principal Place of Business........................ 13 Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.................... 13 Section 2.4. Issuance of the Trust Preferred Securities......................................... 13 Section 2.5. Issuance of the Common Securities; Subscription and Purchase Debentures............ 13 Section 2.6. Trust Agreement.................................................................... 14 Section 2.7. Authorization to Enter into Certain Transactions................................... 14 Section 2.8. Assets of Trust.................................................................... 18 Section 2.9. Title to Trust Property............................................................ 18 ARTICLE III PAYMENT ACCOUNT.......................................................................... 18 Section 3.1. Payment Account.................................................................... 18 ARTICLE IV DISTRIBUTIONS; REDEMPTION................................................................ 19 Section 4.1. Distributions...................................................................... 19 Section 4.2. Redemption......................................................................... 20 Section 4.3. Subordination of Common Securities................................................. 22 Section 4.4. Payment Procedures................................................................. 23 Section 4.5. Tax Returns and Reports............................................................ 23 Section 4.6. Payment of Expenses of the Trust................................................... 23 Section 4.7. Payments under Indenture or Pursuant to Direct Actions............................. 24 ARTICLE V TRUST SECURITIES CERTIFICATES............................................................ 24 Section 5.1. Initial Ownership.................................................................. 24 Section 5.2. The Trust Securities Certificates.................................................. 24 Section 5.3. Execution, Authentication and Delivery of Trust Securities Certificates............ 24 Section 5.4. Registration of Transfer and Exchange of Trust Preferred Securities Certificates... 25 Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates................. 26 Section 5.6. Persons Deemed Holders............................................................. 26 Section 5.7. Access to List of Holders' Names and Addresses..................................... 26 Section 5.8. Maintenance of Office Agency....................................................... 26 Section 5.9. Appointment of Paying Agent........................................................ 27 Section 5.10. Ownership of Common Securities by Sponsor.......................................... 27
ii TABLE OF CONTENTS (continued)
PAGE Section 5.11. Book-Entry Trust Preferred Securities Certificates; Common Securities Certificate...................................................................... 27 Section 5.12. Notices to Clearing Agency......................................................... 28 Section 5.13. Definitive Trust Preferred Securities Certificates................................. 28 Section 5.14. Rights of Holders; Waivers of Past Defaults........................................ 29 Section 5.15. CUSIP Numbers...................................................................... 31 Section 5.16. Cancellation....................................................................... 32 ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING........................................................ 32 Section 6.1. Limitations on Voting Rights....................................................... 32 Section 6.2. Notice of Meetings................................................................. 33 Section 6.3. Meetings of Holders of the Trust Preferred Securities.............................. 33 Section 6.4. Voting Rights...................................................................... 33 Section 6.5. Proxies............................................................................ 33 Section 6.6. Holder Action by Written Consent................................................... 34 Section 6.7. Record Date for Voting and Other Purposes.......................................... 34 Section 6.8. Acts of Holders.................................................................... 34 Section 6.9. Inspection of Records.............................................................. 35 Section 6.10. Action With Respect to the Debenture............................................... 35 ARTICLE VII REPRESENTATIONS AND WARRANTIES........................................................... 36 Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee.... 36 Section 7.2. Representations and Warranties of Sponsor.......................................... 37 ARTICLE VIII THE TRUSTEES............................................................................. 37 Section 8.1. Certain Duties and Responsibilities................................................ 37 Section 8.2. Certain Notices.................................................................... 40 Section 8.3. Certain Rights of Property Trustee................................................. 40 Section 8.4. Not Responsible for Recitals or Issuance of Securities............................. 42 Section 8.5. May Hold Securities................................................................ 42 Section 8.6. Compensation; Indemnity; Fees...................................................... 43 Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrative Trustees......................................................................... 44 Section 8.8. Conflicting Interests.............................................................. 44 Section 8.9. Co-Trustees and Separate Trustee................................................... 44 Section 8.10. Resignation and Removal; Appointment of Successor.................................. 46 Section 8.11. Acceptance of Appointment by Successor............................................. 47 Section 8.12. Merger, Conversion, Consolidation or Succession to Business........................ 48 Section 8.13. Preferential Collection of Claims Against Sponsor or Trust......................... 48 Section 8.14. Trustee May File Proofs of Claim................................................... 48 Section 8.15. Reports by Property Trustee........................................................ 49
iii TABLE OF CONTENTS (continued)
PAGE Section 8.16. Reports to the Property Trustee.................................................... 50 Section 8.17. Evidence of Compliance with Conditions Precedent................................... 50 Section 8.18. Number of Trustees................................................................. 50 Section 8.19. Delegation of Power................................................................ 50 Section 8.20. Trust Liabilities.................................................................. 51 ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER...................................................... 51 Section 9.1. Dissolution Upon Expiration Date................................................... 51 Section 9.2. Early Dissolution.................................................................. 51 Section 9.3. Dissolution........................................................................ 51 Section 9.4. Liquidation........................................................................ 52 Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust.................... 53 ARTICLE X REMARKETING AND RESET RATE MECHANICS..................................................... 54 Section 10.1. Obligation to Conduct Remarketing and Related Requirements......................... 54 Section 10.2. Sponsor Decisions in Connection With Remarketing................................... 55 Section 10.3. Reset of Distribution Rate in Connection with Remarketings and Related Changes in Terms......................................................................... 57 Section 10.4. Remarketing Procedures............................................................. 59 Section 10.5. Put Right.......................................................................... 61 Section 10.6. Common Securities.................................................................. 62 ARTICLE XI OTHER COMMON EQUITY UNIT RELATED PROVISIONS.............................................. 62 Section 11.1. Tax Treatment...................................................................... 62 ARTICLE XII MISCELLANEOUS PROVISIONS................................................................. 62 Section 12.1. Limitation of Rights of Holders.................................................... 62 Section 12.2. Amendment.......................................................................... 63 Section 12.3. Separability....................................................................... 65 Section 12.4. Governing Law...................................................................... 65 Section 12.5. Payments Due on Non-Business Day................................................... 65 Section 12.6. Successors......................................................................... 65 Section 12.7. Headings........................................................................... 65 Section 12.8. Reports, Notices and Demands....................................................... 65 Section 12.9. Agreement Not to Petition.......................................................... 66 Section 12.10. Trust Indenture Act; Conflict with Trust Indenture Act............................. 66 Section 12.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture.......... 67 Section 12.12. Counterparts....................................................................... 67
iv EXHIBITS: Exhibit A - Certificate of Amendment to Certificate of Trust Exhibit B - Form of Common Securities Certificate Exhibit C - Form of Trust Preferred Securities Certificate v AMENDED AND RESTATED DECLARATION OF TRUST (the "Trust Agreement"), dated as of June 21, 2005 among (i) MetLife, Inc., a Delaware corporation (including any successors or assigns, the "Sponsor"), (ii) J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as property trustee (in such capacity, the "Property Trustee"), (iii) Chase Bank USA, National Association, a national banking association, as Delaware trustee (in such capacity, the "Delaware Trustee"), and (iv) Anthony J. Williamson, an individual, Philip Salmon, an individual and Thomas Curran, an individual, each of whose address is c/o MetLife, Inc., 27-01 Queens Plaza North, Long Island City, New York 11101 (each, an "Administrative Trustee," and collectively, the "Administrative Trustees") (the Property Trustee, the Delaware Trustee, and the Administrative Trustees being referred to collectively as the "Trustees"), and (v) the several Holders, as hereinafter defined. WITNESSETH WHEREAS, the Sponsor and certain of the Trustees have heretofore duly declared and established a statutory trust (the "Trust") pursuant to the Delaware Statutory Trust Act (as hereinafter defined) by entering into that certain Declaration of Trust, dated as of May 17, 2001 (the "Original Declaration of Trust"), and by the execution and filing with the Secretary of State of the State of Delaware the Certificate of Trust, filed on May 17, 2001, as amended, attached as Exhibit A hereto (the "Certificate of Trust"); and WHEREAS, certain of the Trustees of the Trust were removed and new Trustees were appointed pursuant to that certain Removal and Appointment of Trustees of the Trust, dated as of January 16, 2004; WHEREAS, certain of the Trustees of the Trust were removed and appointed pursuant to that certain Removal and Appointment of Trustees of the Trust, dated as of June 15, 2005; WHEREAS, the Sponsor and the Trustees desire to amend and restate the Original Declaration of Trust in its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common Securities by the Trust to the Sponsor, (ii) the issuance of the Trust Preferred Securities by the Trust as a component of Normal Common Equity Units and their issuance and sale pursuant to the Underwriting Agreement, and (iii) the acquisition by the Trust from the Sponsor of all of the right, title and interest in the Debentures; NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Original Declaration of Trust in its entirety and agrees as follows: ARTICLE I DEFINED TERMS SECTION 1.1 Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: 1 The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular; All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; All accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; Unless the context otherwise requires, any reference to an "Article," a "Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the case may be, of or to this Trust Agreement; and The words "hereby," "herein," "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision. "Accreted Liquidation Amount" means per Trust Security (i) through the Reset Date, $1,000 (which is also the Initial Liquidation Amount per Trust Security) and (ii) thereafter, an amount equal to the Accreted Principal Amount of a Like Amount of Debentures as determined pursuant to the Indenture (changing as and when such Accreted Principal Amount shall change). "Accreted Principal Amount" has the meaning specified in the Supplemental Indenture. "Act" has the meaning specified in Section 6.8. "Additional Amount" means, with respect to Trust Securities of a given Initial Liquidation Amount and/or a given period, the amount of Additional Interest (as defined in the Indenture) paid by the Sponsor on a Like Amount of Debentures for such period. "Additional Interest" has the meaning specified in the Supplemental Indenture. "Administrative Trustee" means each of the individuals identified as an "Administrative Trustee" in the preamble to this Trust Agreement solely in such individual's capacity as Administrative Trustee of the Trust and not in such individual's individual capacity, or such Administrative Trustee's successor in interest in such capacity, or any successor trustee appointed as herein provided. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. 2 "Agreement as to Expenses and Liabilities" means the Agreement as to Expenses and Liabilities, dated as of June 21, 2005 between the Trust and the Sponsor. "Authorized Officer" of any Person means any executive officer of such Person or any Person authorized by or pursuant to a resolution of the Board of Directors of such Person. "Bankruptcy Event" means, with respect to any Person: (a) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (b) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of any such action. "Bankruptcy Laws" has the meaning specified in Section 12.9. "Base Indenture" means the Indenture, dated as of June 21, 2005, between the Sponsor and the Debenture Trustee. "Board of Directors" of any Person means the board of directors (or equivalent body) of such Person, or, in the case of a limited liability company issuer of Debentures, the sole member, or a committee designated by the board of directors (or equivalent body) of such Person (or any such committee), comprised of one or more members of the board of directors (or equivalent body) of such Person or officers of such Person, or both. "Book-Entry Trust Preferred Securities" means Trust Preferred Securities, the ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.11. "Book-Entry Trust Preferred Securities Certificate" means a Trust Preferred Securities Certificate evidencing ownership of Book-Entry Trust Preferred Securities. 3 "Business Day" means any day other than a Saturday, Sunday, or any other day on which banking institutions and trust companies in New York City are permitted or required by any applicable law to close. "Certificate of Trust" has the meaning specified in the recitals hereof, as amended from time to time. "Certificate Depository Agreement" means the agreement among the Trust, the Paying Agent and DTC, as the initial Clearing Agency, dated as of the Closing Date. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing Agency. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" means the "Closing Date" under the Underwriting Agreement. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this Trust Agreement such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Equity Unit" has the meaning specified in the Stock Purchase Contract Agreement. "Common Securities Certificate" means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit B. "Common Security" means an undivided beneficial interest in the assets of the Trust, having an Initial Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. "Common Stock" has the meaning specified in the Stock Purchase Contract Agreement. "Corporate Trust Office" means (i) when used with respect to the Property Trustee, the office of the Property Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the date hereof is located at Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, New York 10004, and (ii) when used with respect to the Debenture Trustee, the office of the Debenture Trustee located at Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, New York 10004. 4 "Debenture Event of Default" means any "Event of Default" specified in Section 6.1 of the Supplemental Indenture. "Debenture Redemption Date" means, with respect to any Debentures to be redeemed under the Indenture, the date fixed for redemption of such Debentures under the Indenture. "Debentures" means the $927.8 million initial aggregate principal amount of the Sponsor's Series A junior subordinated debt securities, due 2039 issued pursuant to the Indenture (which amount may be increased to $1,067.0 million in connection with the exercise under the Underwriting Agreement by the underwriters named therein of their option to buy additional Common Equity Units). "Debenture Stated Date" means February 15, 2039, unless such date is changed to an earlier date pursuant to Article X. "Debenture Trustee" means J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as trustee under the Indenture, or its successor in interest in such capacity, or any successor trustee appointed as provided in the Indenture. "Deferral Period" has the meaning specified in the Indenture. "Definitive Trust Preferred Securities Certificates" means either or both (as the context requires) of (i) Trust Preferred Securities Certificates issued as Book-Entry Trust Preferred Securities Certificates as provided in Section 5.11, and (ii) Trust Preferred Securities Certificates issued in certificated, fully registered form as provided in Section 5.13. "Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq., as it may be amended from time to time. "Delaware Trustee" means the Person identified as the "Delaware Trustee" in the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware trustee appointed as herein provided. "Distribution Date" has the meaning specified in Section 4.1(a)(iii). "Distribution Period" means each period of time beginning on a Distribution Date (or the Closing Date in the case of the initial Distribution Period) and continuing to but not including the next succeeding Distribution Date. "Distribution Rate" means (i) from the Closing Date to but not including the earlier of (A) the Reset Date and (B) the Scheduled Redemption Date, 4.82% per annum and (ii) for each Distribution Period commencing on or after the Reset Date, the Reset Rate as determined in accordance with Article X. "Distributions" means amounts payable in respect of the Trust Securities as provided in Section 4.1. 5 "DTC" means The Depository Trust Company. "Early Dissolution Event" has the meaning specified in Section 9.2. "Event of Default" means any one of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) the occurrence of a Debenture Event of Default; or (b) default by the Trust in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or (c) default by the Trust in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or (d) default in the performance, or breach, in any material respect, of any covenant or warranty of the Trustees in this Trust Agreement (other than those specified in clause (b) or (c) above) and continuation of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Trustees and to the Sponsor by the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Trust Preferred Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) the occurrence of a Bankruptcy Event with respect to the Property Trustee if a successor Property Trustee has not been appointed within 90 days thereof. "Excess Proceeds Remarketing Amount" means, in connection with a Remarketing, for each Trust Preferred Security being remarketed an amount equal to the amount, if any, by which the proceeds of the Remarketing, net of the Remarketing Agent's Fee, exceed the Par Proceeds Remarketing Amount. "Exchange Act" means the Securities Exchange Act of 1934, and any successor statute thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 9.1. "Failed Remarketing" means a Remarketing that is not Successful. "Federal Reserve" means the Board of Governors of the Federal Reserve System, as from time to time constituted, or if at any time after the execution of this Trust Agreement the Federal Reserve is not existing and performing the duties now assigned to it, then the body performing such duties at such time. "Final Failed Remarketing" means the Remarketing on the Third Remarketing Settlement Date in respect of the Series A Trust Preferred Securities, if such Remarketing is a Failed Remarketing. 6 "Guarantee" means the Guarantee Agreement executed and delivered by the Sponsor and J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as guarantee trustee, contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the holders of the Trust Preferred Securities, as amended from time to time. "Holder" means a Person in whose name a Trust Security or Trust Securities are registered in the Securities Register; any such Person shall be deemed to be a beneficial owner within the meaning of the Delaware Statutory Trust Act. "Indenture" means the Base Indenture and the Supplemental Indenture, taken together. "Initial Liquidation Amount" means the stated amount of $1,000 per Trust Security. "Investment Company Act" means the Investment Company Act of 1940, or any successor statute thereto, in each case as amended from time to time. "Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever. "Like Amount" means (a) with respect to a redemption of any Trust Securities, Trust Securities having an Accreted Liquidation Amount equal to the Accreted Principal Amount of Debentures to be contemporaneously redeemed in accordance with the Indenture, the proceeds of which will be used to pay the Redemption Price of such Trust Securities, (b) with respect to a distribution of Debentures to Holders of Trust Securities in connection with a dissolution or liquidation of the Trust, Debentures having an Accreted Principal Amount equal to the Accreted Liquidation Amount of the Trust Securities of the Holder to whom such Debentures are distributed, and (c) with respect to any distribution of Additional Amounts to Holders of Trust Securities, Debentures having an Accreted Principal Amount equal to the Accreted Liquidation Amount of the Trust Securities in respect of which such distribution is made. "Liquidation Date" means the date of the dissolution, winding-up or dissolution of the Trust pursuant to Section 9.4. "Liquidation Distribution" has the meaning specified in Section 9.4(d). "Majority in Accreted Liquidation Amount of the Trust Preferred Securities" or "Majority in Accreted Liquidation Amount of the Common Securities" means, except as provided by the Trust Indenture Act, Trust Preferred Securities or Common Securities, as the case may be, representing more than 50% of the aggregate Accreted Liquidation Amount of all then Outstanding Trust Preferred Securities or Common Securities, as the case may be. "Normal Common Equity Unit" has the meaning specified in the Stock Purchase Contract Agreement. "Normal Common Equity Unit Certificate" has the meaning specified in the Stock Purchase Contract Agreement. 7 "Officers' Certificate" means, with respect to any Person, a certificate signed by any two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include: (a) a statement by each officer signing the Officers' Certificate that such officer has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers' Certificate; (c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Sponsor or any Affiliate of the Sponsor, who shall be reasonably satisfactory to the Relevant Trustee. "Original Declaration of Trust" has the meaning specified in the recitals to this Trust Agreement. "Outstanding," when used with respect to Trust Securities, means, as of the date of determination, all Trust Securities theretofore executed and delivered under this Trust Agreement, except: (a) Trust Securities theretofore canceled by the Property Trustee or delivered to the Property Trustee for cancellation; (b) Trust Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent; provided that, if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and (c) Trust Securities that have been paid or in exchange for or in lieu of which other Trust Preferred Securities have been executed and delivered pursuant to Sections 5.4, 5.5 and 5.11; provided, however, that in determining whether the Holders of the requisite Accreted Liquidation Amount of the Outstanding Trust Preferred Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Trust Preferred Securities owned by the Sponsor, any Trustee, or any Affiliate of the Sponsor or any Trustee shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Trust Preferred Securities that such Trustee actually knows to be so owned shall be so disregarded, and (b) the foregoing shall not apply at any time when all of the outstanding Trust Preferred Securities are owned by the Sponsor, one or more of the Trustees, and/or any such Affiliate. Trust Preferred Securities so owned that have been pledged 8 in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrative Trustees the pledgee's right so to act with respect to such Trust Preferred Securities and that the pledgee is not the Sponsor or any Affiliate of the Sponsor. Notwithstanding the foregoing, Trust Preferred Securities that are a component of Normal Common Equity Units and pledged pursuant to the Pledge Agreement shall not be deemed to be not Outstanding only by reason of such pledge. "Owner" means each Person who is the beneficial owner of Book-Entry Trust Preferred Securities as reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly or indirectly, in accordance with the rules of such Clearing Agency). "Par Proceeds Remarketing Amount" means, in connection with a Remarketing, an amount for each Trust Preferred Securities being remarketed equal to 100% of its Accreted Liquidation Amount. "Paying Agent" means any paying agent or co-paying agent appointed pursuant to Section 5.9 and shall initially be J.P. Morgan Trust Company, National Association. "Payment Account" means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee (in its corporate capacity and not as Property Trustee) in its trust department for the benefit of the Holders in which all amounts paid in respect of the Debentures will be held and from which the Property Trustee, through the Paying Agent, shall make payments to the Holders in accordance with Sections 4.1 and 4.2. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Pledge Agreement" means the Pledge Agreement, dated as of the date hereof, among the Sponsor, JPMorgan Chase Bank, National Association, as Collateral Agent, Custodial Agent and Securities Intermediary, and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent and attorney-in-fact for the Holders (as defined in the Stock Purchase Contract Agreement) of the Stock Purchase Contracts, as amended or supplemented from time to time. "Property Trustee" means the Person identified as the "Property Trustee" in the preamble to this Trust Agreement, solely in its capacity as Property Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as herein provided. "Put Consideration" has the meaning specified in Section 10.5(a). "Put Right" has the meaning specified in Section 10.05(a). "Redemption Date" means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided that each Debenture 9 Redemption Date and the stated maturity of the Debentures shall be a Redemption Date for a Like Amount of Trust Securities. "Redemption Price" means, with respect to any Trust Security, the Accreted Liquidation Amount of such Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the related amount of the premium, if any, paid by the Sponsor upon the concurrent redemption of a Like Amount of Debentures. "Relevant Trustee" shall have the meaning specified in Section 8.10. "Remarketing" means a remarketing of Trust Preferred Securities pursuant to Article X and the related Remarketing Agreement. "Remarketing Agent" means, as to a Remarketing and related Remarketing Agreement, the remarketing agent and any successor or replacement remarketing agent appointed by the Sponsor and the Trust pursuant to Section 10.1. "Remarketing Agent's Fee" means, as to the Remarketing Agent and a Remarketing, the fee provided for in the related Remarketing Agreement. "Remarketing Agreement" means, with respect to a Remarketing, the remarketing agreement entered into among the Sponsor, the Trust and the Remarketing Agent pursuant to Section 10.1 with respect to such Remarketing of Trust Preferred Securities. "Remarketing Date" means, as to a Remarketing Settlement Date, the third Business Day immediately preceding such Remarketing Settlement Date. "Remarketing Purchase Date" means a Reset Date on which the Trust is required to purchase the Trust Preferred Securities, subject to and in accordance with Section 10.5. "Remarketing Settlement Date" means, on any date prior to the occurrence of a Successful Remarketing, the first to occur thereafter of August 15, 2008, November 15, 2008, and February 15, 2009. "Reset Cap", as of any Remarketing Settlement Date, means the prevailing market yield, as determined by the Remarketing Agent, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from such date until the Scheduled Redemption Date (after giving effect to any change in the Scheduled Redemption Date being made pursuant to Article X on the Remarketing Settlement Date if the Remarketing is Successful), plus 350 basis points per annum. "Reset Date" means the first date that is a Remarketing Settlement Date on which a Successful Remarketing occurs. "Reset Rate" has the meaning set forth in Section 10.3(a). "Responsible Officer" means, with respect to any Trustee, the President, any Senior Vice President, any Vice President, any Assistant 10 Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust Officer of such Trustee or any other officer of such Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of or familiarity with the particular subject. "Scheduled Redemption Date" means August 15, 2039 or, if such date is changed to an earlier date in accordance with Article X, such earlier date. "Securities Act" means the Securities Act of 1933, and any successor statute thereto, in each case as amended from time to time. "Securities Intermediary" has the meaning specified in the Stock Purchase Agreement. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 5.4. "Separate Trust Preferred Securities" means Trust Preferred Securities that are no longer a component of Normal Common Equity Units. "Sponsor" has the meaning specified in the preamble to this Trust Agreement. "Stock Purchase Contract" has the meaning specified in the Stock Purchase Contract Agreement. "Stock Purchase Contract Agent" means J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as stock purchase contract agent and any successor thereto as stock purchase contract agent, under the Stock Purchase Contract Agreement. "Stock Purchase Contract Agreement" means the Stock Purchase Contract Agreement, dated as of the date hereof, between the Sponsor and the Stock Purchase Contract Agent, as amended or supplemented from time to time. "Stock Purchase Date" has the meaning specified in the Stock Purchase Contract Agreement. "Stripped Common Equity Unit" has the meaning specified in the Stock Purchase Contract Agreement. "Successful" means, as to a Remarketing, that the Remarketing is conducted in accordance with Article X and the Remarketing Agent finds buyers for all of the Trust Preferred Securities offered in the Remarketing by 4:00 P.M., New York City time, on the Remarketing Date. "Supplemental Indenture" means the First Supplemental Indenture to the Base Indenture, dated as of June 21, 2005, between the Sponsor and the Debenture Trustee. 11 "Time of Delivery" means June 21, 2005. "Trust" means the Delaware statutory trust known as "MetLife Capital Trust II" which was created under the Delaware Statutory Trust Act pursuant to the Original Declaration of Trust and the filing of the Certificate of Trust, and continued pursuant to this Trust Agreement. "Trust Agreement" means this Amended and Restated Declaration of Trust, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including (i) all exhibits, and (ii) for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively. "Trustees" means, collectively, the Property Trustee, the Delaware Trustee, and the Administrative Trustees. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Trust Agreement was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended. "Trust Preferred Securities" means the series of securities known as the "Series A Trust Preferred Securities" of the Trust. "Trust Preferred Securities Certificate" means a certificate evidencing ownership of Trust Preferred Securities, substantially in the form attached as Exhibit C. "Trust Property" means (a) the Debentures, (b) any cash on deposit in, or owing to, the Payment Account, and (c) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Property Trustee pursuant to the trusts of this Trust Agreement. "Trust Security" means any one of the Common Securities or the Trust Preferred Securities. "Trust Securities Certificate" means any one of the Common Securities Certificates or the Trust Preferred Securities Certificates. "Underwriting Agreement" means the Underwriting Agreement dated June 15, 2005, among the Company, the Trust, MetLife Capital Trust III and certain underwriters specified therein, including the Pricing Agreement dated June 15, 2005 entered into in connection therewith. "Vice President," when used with respect to the Sponsor, means any duly appointed vice president, whether or not designated by a number or a word or words added before or after the title "vice president." 12 ARTICLE II CONTINUATION OF THE TRUST SECTION 2.1. Name. The trust continued hereby shall be known as "MetLife Capital Trust II" as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders and the other Trustees, in which name the Administrative Trustees and the other Trustees may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued on behalf of the Trust. SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business. The address of the Delaware Trustee in the State of Delaware is c/o JPMorgan Chase Bank, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, DE 19713, Attention: Worldwide Securities Services, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Sponsor, the Property Trustee and the Administrative Trustees. The principal executive office of the Trust is c/o Chase Bank USA, National Association, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, Delaware 19713, Attention: Institutional Trust Services. SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses. The Trustees acknowledge receipt from the Sponsor in connection with the Original Declaration of Trust of the sum of $10, which constituted the initial Trust Property. The Sponsor shall pay organizational expenses of the Trust as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee for any such expenses paid by such Trustee. The Sponsor shall not make any claim upon the Trust Property for the payment of such expenses. SECTION 2.4. Issuance of the Trust Preferred Securities. On June 15, 2005, the Sponsor, on behalf of the Trust, executed and delivered the Underwriting Agreement. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Trust, in connection with the execution and delivery on such date of 82,800,000 Normal Common Equity Units to the underwriters named in the Underwriting Agreement, shall execute in accordance with Section 5.3 and deliver to the Securities Intermediary a Trust Preferred Securities Certificate, registered in the name of the Stock Purchase Contract Agent with the form of assignment attached thereto executed in blank, in an aggregate Initial Liquidation Amount of $1,035,000,000, against payment of $1,035,000,000 as the purchase price therefor in immediately available funds, which funds such Administrative Trustee shall promptly deliver to the Property Trustee or its designee. SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase Debentures. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in accordance with Section 5.3 and deliver to the Sponsor a Common Securities Certificate, registered in the name of the Sponsor, 13 evidencing 27,800 Common Securities having an aggregate Initial Liquidation Amount of $27,800,000 against payment by the Sponsor of the purchase price therefor in immediately available funds, which amount such Administrative Trustee shall promptly deliver to the Property Trustee or its designee. Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase from the Sponsor the Debentures registered in the name of the Trust and having an aggregate initial principal amount equal to $1,067,000,000 and shall deliver to the Sponsor the purchase price therefor (being the sum of the amounts delivered to the Property Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence of this Section 2.5). SECTION 2.6. Trust Agreement. The exclusive purposes and functions of the Trust are (a) to issue and sell Trust Securities, (b) to use the proceeds from such sale to acquire the Debentures, and (c) to engage in those activities necessary or incidental thereto. The Sponsor hereby appoints the Trustees as trustees of the Trust, to have all the rights, powers and duties to the extent set forth herein, and the Trustees hereby accept such appointment. The Property Trustee hereby declares that it will hold the Trust Property upon and subject to the conditions set forth herein for the benefit of the Trust and the Holders. The Administrative Trustees shall have all rights, powers and duties set forth herein and in accordance with applicable law with respect to accomplishing the purposes of the Trust. The Delaware Trustee shall be one of the trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Delaware Statutory Trust Act and for taking such actions as are required to be taken by a Delaware trustee under the Delaware Statutory Trust Act. SECTION 2.7. Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including the following: (i) As among the Trustees, the Administrative Trustees, and each of them, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (A) the issuance and sale of the Trust Securities; (B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust the common securities purchase agreement the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust; 14 (C) to cause the Trust to execute, deliver and perform its obligations under Remarketing Agreements entered into pursuant to Article X and, except as otherwise expressly provided in Article X, cause the Trust to take such actions with respect to Remarketings as are provided for in Article X or as may be necessary or, as determined by the Administrative Trustees, useful in connection with Remarketings; (D) to cause the Trust to execute, deliver and perform its obligations under the Agreement as to Expenses and Liabilities; (E) assisting in the registration of the Trust Preferred Securities under the Securities Act and under state securities or blue sky laws, and the qualification of this Trust Agreement under the Trust Indenture Act; (F) assisting in the listing of the Trust Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Sponsor, with the registration of the Trust Preferred Securities under the Exchange Act, if required, and with the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (G) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement; (H) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement; (I) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; (J) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; (K) execution and delivery of closing certificates, if any, pursuant to the Underwriting Agreement and any Remarketing Agreement and application for a taxpayer identification number for the Trust; (L) unless otherwise required by the Delaware Statutory Trust Act, the Trust Indenture Act or other applicable law, to execute on behalf of the Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; (M) the taking of any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; and (N) the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware. 15 (ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (A) the establishment of the Payment Account; (B) the receipt of the Debentures; (C) to authenticate the Trust Securities Certificates; (D) the collection of interest, principal and any other payments or instruments (including due bills or promissory notes of the Sponsor issuable under or with respect to the Debentures) made in respect of the Debentures and the holding of such amounts in the Payment Account; (E) the distribution through the Paying Agent of amounts or property or instruments (including due bills or promissory notes of the Sponsor issuable under or with respect to the Debentures) distributable to the Holders in respect of the Trust Securities; (F) the exercise of all of the rights, powers and privileges of a holder of the Debentures; (G) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement; (H) the distribution of the Trust Property in accordance with the terms of this Trust Agreement; (I) acting as Paying Agent to the extent appointed under this Trust Agreement; (J) acting as Security Registrar to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust; and (K) after an Event of Default (other than under paragraph (b),(c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), and subject to the provisions of Article VIII, the taking of any action incidental to the foregoing as is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder). Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i). (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust, solely in their respective capacities as Trustees) shall not undertake any business, activities or transactions except as expressly provided 16 herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust, solely in their respective capacities as Trustees) shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Trust to become taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any proceeds received by the Trust from holding the Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Holders in their capacity as Holders. (c) In connection with the issuance and sale of the Trust Preferred Securities, the Sponsor shall have the right and, if the Sponsor shall desire that the actions be taken, the responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Sponsor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): (i) the preparation and filing by the Trust with the Commission of and the execution on behalf of the Trust of a registration statement on the appropriate form in relation to the Trust Preferred Securities, including any amendments thereto; (ii) the determination of the states in which to take appropriate action to qualify or register for sale all or part of the Trust Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Trust, and the advice to the Trust of actions they must take on behalf of the Trust, and the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states; (iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Trust Preferred Securities and filing with such exchange or self-regulatory organization such notification and documents as may be necessary from time to time to maintain such listing; 17 (iv) the negotiation of the terms of, and the execution and delivery of, the Underwriting Agreement providing for the sale of the Trust Preferred Securities; and (v) the taking of any other actions necessary or desirable to carryout any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Sponsor for United States Federal income tax purposes. In this connection, the Sponsor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that they determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Trust Preferred Securities. In no event shall the Sponsor or the Trustees be liable to the Trust or the Holders for any failure to comply with this Section that results from a change in law or regulation or in the interpretation thereof. SECTION 2.8. Assets of Trust. The assets of the Trust shall consist solely of the Trust Property. SECTION 2.9. Title to Trust Property. Legal title to all Trust Property shall be vested at all times in the Property Trustee (in its capacity as such) and shall be held and administered by the Property Trustee in trust for the benefit of the Trust and the Holders in accordance with this Trust Agreement. ARTICLE III PAYMENT ACCOUNT SECTION 3.1. Payment Account. (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account. The Property Trustee and its agents shall have exclusive control and sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as herein provided, including (and subject to) any priority of payments provided for herein. (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all payments of principal of or interest on, and any other payments or 18 proceeds with respect to, the Debentures. Amounts held in the Payment Account shall not be invested by the Property Trustee pending distribution thereof. ARTICLE IV DISTRIBUTIONS; REDEMPTION SECTION 4.1. Distributions. (a) The Trust Securities represent undivided beneficial interests in the Trust Property, and Distributions (including of Additional Amounts) will be made on the Trust Securities at the rate and on the dates that payments of interest (including Additional Interest, as defined in the Indenture) are made on the Debentures. Accordingly: (i) Distributions on the Trust Securities shall be cumulative and will accumulate from the Time of Delivery as and when interest accrues on the Debentures. (ii) Distributions shall accumulate on the Trust Securities for each Distribution Period at the Distribution Rate for such Distribution Period. (iii) Distributions payable in cash will be payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, commencing August 15, 2005, to and including the Stock Purchase Date, and on and after the Stock Purchase Date, Distributions payable in cash, if any, will be payable semi-annually on each February 15 and August 15 or May 15 and November 15, as applicable, with the first such semi-annual distribution date, if any, occurring on a date that is six months after the Stock Purchase Date (each such date a "Distribution Date"), in each case subject to the Trust having funds available for such Distributions. (iv) For Distribution Periods commencing on or after the Stock Purchase Date, Distributions will accrete at the Distribution Rate instead of being paid in cash (with the amount of accretion on any date for each Trust Security being equal to the amount of accretion on a Like Amount of Debentures), unless the Sponsor elects to pay interest on the Debentures in cash pursuant to Section 10.2 or the Stock Purchase Date is August 15, 2009 and the Remarketing for settlement on such date is a Failed Remarketing. (v) If any date which is otherwise a Distribution Date pursuant to paragraph (iii) above is not a Business Day, then the payment of cash Distributions on such Distribution Date, if applicable, shall be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on the date on which such payment was originally payable; provided, however, that if the next succeeding Business Day is in the next succeeding calendar year, then the payment of cash distributions shall be made on the immediately preceding Business Day. (vi) Distributions shall be payable in cash on each Distribution Date on which the Sponsor is obligated to pay interest on the Debentures in cash, and the amount of such cash Distribution (NET OF ANY WITHHOLDING TAX REQUIRED BY LAW TO BE WITHHELD ON SUCH PAYMENTS WHICH SHALL BE REMITTED TO THE APPROPRIATE TAXING JURISDICTION) on the Accreted Liquidation Amount of each Trust Security shall equal the amount of interest payable in cash on such Distribution Date on a Like Amount of Debentures. IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (i) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN. 19 (vii) The amount of Distributions payable for any Distribution Period shall include the Additional Amounts, if any. (viii) Distributions on the Trust Securities shall be made by the Property Trustee from the Payment Account and shall be payable on each Distribution Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Distributions. (b) Distributions in cash on the Trust Securities with respect to a Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register for the Trust Securities at the close of business on the relevant record date for such Distribution Date, which shall be the first date of the month in which the relevant Distribution Date falls. Distributions payable on any Trust Securities that are not punctually paid on any Distribution Date will cease to be payable to the Person in whose name such Trust Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Trust Securities are registered on the special record date or other specified date for determining Holders entitled to such defaulted interest established in accordance with the Indenture. SECTION 4.2. Redemption. (a) On each Debenture Redemption Date and on the Debenture Stated Maturity Date, the Trust will be required to redeem a Like Amount of Trust Securities at the Redemption Price. (b) Upon receipt of notice of a Debenture Redemption Date, notice of redemption of a Like Amount of Trust Securities shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date to each Holder of Trust Securities to be redeemed, at such Holder's address appearing in the Security Register. All notices of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the third Business Day prior to the Redemption Date (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (iii) the CUSIP number or CUSIP numbers of the Trust Preferred Securities affected; 20 (iv) if less than all the Outstanding Trust Securities are to be redeemed, the identification and/or the aggregate Liquidation Amount of the particular Trust Securities to be redeemed; (v) that on the Redemption Date the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that Distributions thereon will cease to accumulate on and after said date, except as provided in Section 4.2(d) below; and (vi) if the Trust Preferred Securities are not in book-entry-only form, the place or places where the Trust Preferred Securities Certificates are to be surrendered for the payment of the Redemption Price. (c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption or payment at the Debenture Stated Maturity Date of the Debentures. Redemptions of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Redemption Price. (d) If the Property Trustee gives a notice of redemption in respect of any Trust Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with respect to Book-Entry Trust Preferred Securities, irrevocably deposit with the Clearing Agency for such Book-Entry Trust Preferred Securities, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities. With respect to Trust Preferred Securities that are not Book-Entry Trust Preferred Securities, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities upon surrender of their Trust Preferred Securities Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as they appear on the Securities Register for the Trust Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the date of such deposit, all rights of Holders holding Trust Securities so called for redemption will cease, except the right of such Holders to receive the Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to the Redemption Date, but without interest, and such Trust Securities will cease to be outstanding. In the event that any date on which any Redemption Price is payable is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (without any interest or other payment in respect of any such delay), with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption is improperly withheld or 21 refused and not paid either by the Trust or by the Sponsor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accumulate, as set forth in Section 4.1, from the Redemption Date originally established by the Trust for such Trust Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price. (e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are to be redeemed on a Redemption Date, then the aggregate Accreted Liquidation Amount of Trust Securities to be redeemed shall be allocated pro rata to the Common Securities and the Trust Preferred Securities based upon the relative Accreted Liquidation Amounts of such classes. The particular Trust Preferred Securities to be redeemed shall be selected on a pro rata basis based upon their respective Accreted Liquidation Amounts not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Trust Preferred Securities not previously called for redemption by any method the Property Trustee deems fair and appropriate, provided that so long as the Trust Preferred Securities are in book-entry-only form, such selection shall be made in accordance with the customary procedures for the Clearing Agency for the Trust Preferred Securities. The Property Trustee shall promptly notify the Securities Registrar in writing of the Trust Preferred Securities selected for redemption and, in the case of any Trust Preferred Securities selected for partial redemption, the Accreted Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Trust Preferred Securities shall relate, in the case of any Trust Preferred Securities redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Trust Preferred Securities that has been or is to be redeemed. SECTION 4.3. Subordination of Common Securities. (a) Payment of Distributions (including any Additional Amounts) on, the Redemption Price of, and the Liquidation Distribution in respect of, the Trust Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata among the Common Securities and the Trust Preferred Securities based on the Accreted Liquidation Amount of the Trust Securities; provided, however, that if on any Distribution Date, Redemption Date or Liquidation Date any Event of Default resulting from a Debenture Event of Default specified in Section 6.1(a)(1) or 6.1(a)(2) of the Supplemental Indenture shall have occurred and be continuing, no payment of any Distribution (including any Additional Amounts) on, Redemption Price of, or Liquidation Distribution in respect of, any Common Security, and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions (including any Additional Amounts) on all Outstanding Trust Preferred Securities for all Distribution Periods terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all Outstanding Trust Preferred Securities then called for redemption, or in the case of payment of the Liquidation Distribution the full amount of such Liquidation Distribution on all Outstanding Trust Preferred Securities, shall have been made or provided for, and all funds immediately available to the Property Trustee 22 shall first be applied to the payment in full in cash of all Distributions (including any Additional Amounts) on, or the Redemption Price of, the Trust Preferred Securities then due and payable. (b) In the case of the occurrence of any Event of Default resulting from any Debenture Event of Default, the Holders of the Common Securities shall have no right to act with respect to any such Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated. Until all such Events of Default under this Trust Agreement with respect to the Trust Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Trust Preferred Securities and not on behalf of the Holders of the Common Securities, and only the Holders of the Trust Preferred Securities will have the right to direct the Property Trustee to act on their behalf. SECTION 4.4. Payment Procedures. Payments of cash Distributions (including any Additional Amounts) in respect of the Trust Preferred Securities shall, subject to the next succeeding sentence, be made by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register or, if the Trust Preferred Securities are held by a Clearing Agency, such Distributions shall be made to the Clearing Agency by wire transfer of immediately available funds. A Holder of $1,000,000 or more in aggregate Initial Liquidation Amount of Trust Preferred Securities may receive payments of cash Distributions (including any Additional Amounts) by wire transfer of immediately available funds upon written request to the Property Trustee not later than the 15th calendar day, whether or not a Business Day, before the relevant Distribution Date. Payments in respect of the Common Securities shall be made in such manner as shall be mutually agreed between the Property Trustee and the Holders of the Common Securities. SECTION 4.5. Tax Returns and Reports. The Administrative Trustees shall prepare (or cause to be prepared), at the Sponsor's expense, and file all United States Federal, state and local tax and information returns and reports required to be filed by or in respect of the Trust. In this regard, the Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed) all Internal Revenue Service forms required to be filed in respect of the Trust in each taxable year of the Trust, and (b) prepare and furnish (or cause to be prepared and furnished) to each Holder all Internal Revenue Service forms required to be provided by the Trust. The Administrative Trustees shall provide the Sponsor and the Property Trustee with a copy of all such returns and reports promptly after such filing or furnishing. The Trustees shall comply with United States Federal withholding and backup withholding tax laws and information reporting requirements with respect to any payments to Holders under the Trust Securities. SECTION 4.6. Payment of Expenses of the Trust. The Sponsor shall pay to the Trust, and reimburse the Trust for, the full amount of any costs, expenses or liabilities of the Trust (other than obligations of the Trust to pay the Holders of 23 any Trust Preferred Securities or other similar interests in the Trust the amounts due such Holders pursuant to the terms of the Trust Preferred Securities or such other similar interests, as the case may be), including, without limitation, any taxes, duties or other governmental charges of whatever nature (other than withholding taxes) imposed on the Trust by the United States or any other taxing authority. Such payment obligation includes any such costs, expenses or liabilities of the Trust that are required by applicable law to be satisfied in connection with a dissolution of the Trust. SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions. Any amount payable hereunder to any Holder of Trust Preferred Securities (or any Owner with respect thereto) shall be reduced by the amount of any corresponding payment such Holder (or Owner) has directly received pursuant to Section 6.3 of the Supplemental Indenture or Section 5.14 of this Trust Agreement. ARTICLE V TRUST SECURITIES CERTIFICATES SECTION 5.1. Initial Ownership. Upon the formation of the Trust and the contribution by the Sponsor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust Securities are outstanding, the Sponsor shall be the sole beneficial owner of the Trust. SECTION 5.2. The Trust Securities Certificates. The Trust Preferred Securities Certificates shall be issued in minimum denominations of $1,000 Initial Liquidation Amount and integral multiples of $1,000 in excess thereof, and the Common Securities Certificates shall be issued in denominations of $1,000 Initial Liquidation Amount and integral multiples thereof. The Trust Securities Certificates shall be executed on behalf of the Trust by manual signature of at least one Administrative Trustee. Trust Securities Certificates bearing the manual signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust or the Property Trustee shall be validly issued, fully paid and nonassessable undivided beneficial interests in the assets of the Trust, and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities Certificate shall become a Holder, and shall be entitled to the rights and subject to the obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11 or 5.13. SECTION 5.3. Execution, Authentication and Delivery of Trust Securities Certificates. At the Time of Delivery, at least one of the Administrative Trustees shall cause Trust Securities Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or upon the written order of the Sponsor, 24 such written order executed by one Authorized Officer thereof, without further corporate action by the Sponsor, in authorized denominations. No Trust Securities Certificate shall be entitled to any benefit under this Trust Agreement or be valid or obligatory for any purpose unless there appears on such Trust Securities Certificate a certificate of authentication substantially in the form provided for herein executed by an authorized officer of the Property Trustee by manual signature, and such certificate upon any Trust Securities Certificate shall be conclusive evidence, and the only evidence, that such Trust Securities Certificate has been duly authenticated and delivered hereunder. SECTION 5.4. Registration of Transfer and Exchange of Trust Preferred Securities Certificates. The Sponsor shall keep or cause to be kept, at the office or agency maintained pursuant to Section 5.8, a register or registers for the purpose of registering Trust Securities Certificates and transfers and exchanges of Trust Preferred Securities Certificates (the "Securities Register") in which the registrar designated by the Sponsor (the "Securities Registrar"), subject to such reasonable regulations as it may prescribe, shall provide for the registration of Trust Preferred Securities Certificates and Common Securities Certificates (subject to Section 5.10 in the case of the Common Securities Certificates) and registration of transfers and exchanges of Trust Preferred Securities Certificates as herein provided. J.P. Morgan Trust Company, National Association shall be the initial Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property Trustee also in its role as Securities Registrar, for so long as the Property Trustee shall act as Securities Registrar. Upon surrender for registration of transfer of any Trust Preferred Securities Certificate at the office or agency maintained pursuant to Section 5.8, the Administrative Trustees or any one of them shall execute on behalf of the Trust and deliver, in the name of the designated transferee or transferees, one or more new Trust Preferred Securities Certificates in authorized denominations of a like aggregate Initial Liquidation Amount dated the date of execution by such Administrative Trustee or Trustees. The Securities Registrar shall not be required to register the transfer of any Trust Preferred Securities that have been called for redemption during a period beginning at the opening of business 15 days before the day of selection for such redemption. At the option of a Holder, Trust Preferred Securities Certificates may be exchanged for other Trust Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate Initial Liquidation Amount upon surrender of the Trust Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 5.8. Every Trust Preferred Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to an Administrative Trustee and the Securities Registrar duly executed by the Holder or his attorney duly authorized in writing. Each Trust Preferred Securities Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently disposed of by an Administrative Trustee in accordance with such Person's customary practice. No service charge shall be made for any registration of transfer or exchange of Trust Preferred Securities Certificates, but the Securities Registrar may require payment of a sum 25 sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Trust Preferred Securities Certificates. SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates. If (a) any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Trust Securities Certificate, and (b) there shall be delivered to the Securities Registrar and the Administrative Trustees such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Securities Certificate shall have been acquired by a bona fide purchaser, the Administrative Trustees, or any one of them, on behalf of the Trust shall execute and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust Securities Certificate under this Section 5.5, the Administrative Trustees or the Securities Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Securities Certificate issued pursuant to this Section shall constitute conclusive evidence of an undivided beneficial interest in the assets of the Trust corresponding to that evidenced by the lost, stolen or destroyed Trust Securities Certificate, as if originally issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at any time. SECTION 5.6. Persons Deemed Holders. The Trustees and the Securities Registrar shall each treat the Person in whose name any Trust Securities Certificate shall be registered in the Securities Register as the owner of such Trust Securities Certificate for the purpose of receiving Distributions and for all other purposes whatsoever, and none of the Trustees, the Administrative Trustees and the Securities Registrar shall be bound by any notice to the contrary. SECTION 5.7. Access to List of Holders' Names and Addresses. Each Holder and each Owner shall be deemed to have agreed not to hold the Sponsor, the Property Trustee, the Delaware Trustee or the Administrative Trustees accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived. SECTION 5.8. Maintenance of Office Agency. The Administrative Trustees shall designate an office or offices or agency or agencies where Trust Preferred Securities Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trustees in respect of the Trust Securities Certificates may be served. The Administrative Trustees initially designate J.P. Morgan Trust Company, National Association, Attention: Worldwide Securities Services, as their office and agency for such purposes. An Administrative Trustee shall give prompt written notice to the Sponsor, the Property Trustees and to the Holders of any change in the location of the Securities Register or any such office or agency. 26 SECTION 5.9. Appointment of Paying Agent. The Paying Agent shall make Distributions to Holders from the Payment Account and shall report the amounts of such Distributions to the Property Trustee and the Administrative Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account solely for the purpose of making the Distributions referred to above. The Property Trustee may revoke such power and remove the Paying Agent in its sole discretion. The Paying Agent shall initially be J.P. Morgan Trust Company, National Association. Any Person acting as Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Administrative Trustees and the Property Trustee. If the Property Trustee shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company) that is reasonably acceptable to the Sponsor to act as Paying Agent. Such successor Paying Agent or any additional Paying Agent shall execute and deliver to the Trustees an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Trustees that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property Trustee also in its role as Paying Agent, for so long as the Property Trustee shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. SECTION 5.10. Ownership of Common Securities by Sponsor. At the Time of Delivery, the Sponsor shall acquire beneficial and record ownership of the Common Securities. To the fullest extent permitted by law, other than a transfer in connection with a consolidation or merger of the Sponsor into another Person, or any conveyance, transfer or lease by the Sponsor of its properties and assets substantially as an entirety to any Person pursuant to Section 10.01 of the Base Indenture, any attempted transfer of the Common Securities other than to a direct or indirect subsidiary of the Sponsor shall be void. The Administrative Trustees shall cause each Common Securities Certificate issued to the Sponsor to contain a legend consistent with this Section 5.10. SECTION 5.11. Book-Entry Trust Preferred Securities Certificates; Common Securities Certificate. (a) Trust Preferred Securities Certificates that are no longer a component of Normal Common Equity Units and are released from the Collateral Account (as defined in the Pledge Agreement), will be issued in the form of a typewritten Trust Preferred Securities Certificate or Certificates representing Book-Entry Trust Preferred Securities Certificates, to be delivered to, or on behalf of, DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Such Trust Preferred Securities Certificate or Certificates shall initially be registered on the Securities Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner will receive a Definitive Trust Preferred 27 Securities Certificate representing such Owner's interest in such Trust Preferred Securities, except as provided in Section 5.13. Except where Definitive Trust Preferred Securities Certificates have been issued to the Securities Intermediary or to Owners pursuant to Section 5.13: (i) the provisions of this Section 5.11(a) shall be in full force and effect; (ii) the Securities Registrar and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Trust Agreement relating to the Book-Entry Trust Preferred Securities Certificates (including the payment of the Liquidation Amount of and Distributions on the Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates and the giving of instructions or directions to Owners of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates) as the sole Holder of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates and shall have no obligations to the Owners thereof; (iii) to the extent that the provisions of this Section 5.11 conflict with any other provisions of this Trust Agreement, the provisions of this Section 5.11 shall control; and (iv) the rights of the Owners of the Book-Entry Trust Preferred Securities Certificate shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive Trust Preferred Securities Certificates are issued pursuant to Section 5.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments on the Trust Preferred Securities to such Clearing Agency Participants. (b) A single Common Securities Certificate representing the Common Securities shall be issued to the Sponsor in the form of a definitive Common Securities Certificate. SECTION 5.12. Notices to Clearing Agency. To the extent that a notice or other communication to the Holders is required under this Trust Agreement, for so long as Trust Preferred Securities are represented by a Book-Entry Trust Preferred Securities Certificates, the Trustee shall give all such notices and communications specified herein to be given to the Clearing Agency, and shall have no obligations to the Owners. SECTION 5.13. Definitive Trust Preferred Securities Certificates. The Trust Preferred Securities Certificates issued at the Time of Delivery and upon the underwriters' exercise of their over-allotment option, as contemplated by Section 2.4, shall be issued as Definitive Trust Preferred Securities Certificates in accordance with Section 2.4. 28 Additionally, if (a) the Sponsor advises the Trustees in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Trust Preferred Securities Certificates, and the Sponsor is unable to locate a qualified successor, (b) the Sponsor at its option advises the Trustees in writing that it elects to terminate the book-entry system through the Clearing Agency or (c) after the occurrence of a Debenture Event of Default, Owners of Trust Preferred Securities Certificates representing beneficial interests aggregating at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities advise the Administrative Trustees in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interest of the Owners of Trust Preferred Securities Certificates, then the Administrative Trustees shall notify the other Trustees and the Clearing Agency, and the Clearing Agency, in accordance with its customary rules and procedures, shall notify all Clearing Agency Participants for whom it holds Trust Preferred Securities of the occurrence of any such event and of the availability of the Definitive Trust Preferred Securities Certificates to Owners of such class or classes, as applicable, requesting the same. Upon surrender to the Administrative Trustees of the typewritten Trust Preferred Securities Certificate or Certificates representing the Book-Entry Trust Preferred Securities Certificates by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one of them, shall execute the Definitive Trust Preferred Securities Certificates in accordance with the instructions of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Trust Preferred Securities Certificates, the Trustees shall recognize the Holders of the Definitive Trust Preferred Securities Certificates as holders of Trust Securities. The Definitive Trust Preferred Securities Certificates shall be typewritten, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees that meets the requirements of any stock exchange or automated quotation system on which the Trust Preferred Securities are then listed or approved for trading, as evidenced by the execution thereof by the Administrative Trustees or any one of them. SECTION 5.14. Rights of Holders; Waivers of Past Defaults. (a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in its capacity as such) in accordance with Section 2.9, and the Holders shall not have any right or title therein other than the undivided beneficial interest in the assets of the Trust conferred by their Trust Securities and they shall have no right to call for any partition or division of property, profits or rights of the Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Trust Agreement. The Trust Preferred Securities shall have no preemptive or similar rights and when issued and delivered to Holders against payment of the purchase price therefor will be fully paid and nonassessable undivided beneficial interests in the assets of the Trust. The Holders of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. (b) For so long as any Trust Preferred Securities remain Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails or the holders of not less than 29 25% in aggregate principal amount of the outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due and payable, the Property Trustee or the Holders of at least 25% in Accreted Liquidation Amount of the Trust Preferred Securities then Outstanding shall have the right to make such declaration by a notice in writing to the Sponsor, the Debenture Trustee and the Property Trustee, in the case of notice by the Holders of the Trust Preferred Securities, or to the Sponsor, the Debenture Trustee and the Holders of the Trust Preferred Securities, in the case of notice by the Property Trustee, and upon any such declaration such principal amount of and the accrued interest on all of the Debentures shall become immediately due and payable, provided that the payment of principal and interest on such Debentures shall remain subordinated to the extent provided in the Indenture. At any time after a declaration of acceleration with respect to the Debentures has been made and before a judgment or decree for payment of the money due has been obtained by the Debenture Trustee as in the Indenture provided, the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, by written notice to the Property Trustee, the Sponsor and the Debenture Trustee, may rescind and annul such declaration and its consequences if: (i) the Sponsor has paid or deposited with the Debenture Trustee a sum sufficient to pay (A) all overdue installments of interest on all of the Debentures, (B) any accrued Additional Interest (as defined in the Indenture) on all of the Debentures, (C) the principal of (and premium, if any, on) any Debentures that have become due otherwise than by such declaration of acceleration and interest and Additional Interest (as defined in the Indenture) thereon at the rate borne by the Debentures, and (D) all sums paid or advanced by the Debenture Trustee under the Indenture and all amounts due to the Debenture Trustee under Section 7.06 of the Base Indenture and to the Property Trustee under Section 8.6 hereof; and (ii) all Events of Default with respect to the Debentures, other than the non-payment of the principal of the Debentures that has become due solely by such acceleration, have been cured or waived as provided in Section 6.08 of the Base Indenture. The Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default under the Indenture, except a default in the payment of principal or interest (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Debenture Trustee) or a default in respect of a covenant or provision that under the Indenture cannot be modified or 30 amended without the consent of the holder of each outstanding Debenture. No such rescission shall affect any subsequent default or impair any right consequent thereon. Upon receipt by the Property Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, by Holders of any part of the Trust Preferred Securities a record date shall be established for determining Holders of Outstanding Trust Preferred Securities entitled to join in such notice, which record date shall be at the close of business on the day the Property Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided that, unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day that is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice that has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.14(b). (c) For so long as any Trust Preferred Securities remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Debenture Event of Default specified in Section 6.1(a)(1) or 6.1(a)(2) of the Supplemental Indenture, any Holder of Trust Preferred Securities shall have the right to institute a proceeding directly against the Sponsor, pursuant to Section 6.02 of the Base Indenture, for enforcement of payment to such Holder of any amounts payable in respect of a Like Amount of Debentures (a "Direct Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the Holders of Trust Preferred Securities shall have no right to exercise directly any right or remedy available to the holders of, or in respect of, the Debentures. (d) Except as otherwise provided in paragraphs (a), (b) and (c) of this Section 5.14, the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising there from shall be deemed to have been cured, for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. SECTION 5.15. CUSIP Numbers. The Administrative Trustees in issuing the Trust Preferred Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Property Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Trust Preferred Securities or as contained in any notice of a redemption and that reliance may be 31 placed only on the other identification numbers printed on the Trust Preferred Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Administrative Trustees will promptly notify the Property Trustee of any change in the CUSIP numbers. SECTION 5.16. Cancellation. All Certificates surrendered upon the transfer of Trust Preferred Securities or for delivery of Trust Preferred Securities or Treasury Securities, as the case may be, after the occurrence of a Termination Event or pursuant to a Cash Settlement, an Early Settlement or a Cash Merger Early Settlement, or upon the registration of transfer or exchange of a Common Equity Unit, or a Collateral Substitution or the recreation of a Normal Common Equity Unit shall, if surrendered to any Person other than the Stock Purchase Contract Agent, be delivered to the Stock Purchase Contract Agent along with appropriate written instructions regarding the cancellation thereof and, if not already cancelled, shall be promptly cancelled by it. No Certificates shall be authenticated, executed and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section, except as expressly permitted by this Agreement. All cancelled Certificates held by the Property Trustee shall be disposed of in accordance with its customary practices. ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING SECTION 6.1. Limitations on Voting Rights. (a) Except as expressly provided in this Trust Agreement and in the Indenture and as otherwise required by law, no Holder of Trust Preferred Securities shall have any right to vote or in any manner otherwise control the administration, operation and management of the Trust or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Trust Securities Certificates, be construed so as to constitute the Holders from time to time as partners or members of an association. (b) So long as any Debentures are held by the Property Trustee on behalf of the Trust, the Trustees shall not (i) direct the time, method and place of conducting any proceeding for any remedy available to the Debenture Trustee, or execute any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waive any past default that may be waived under Section 6.08 of the Base Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Debentures, where such consent shall be required, without, in each case, obtaining the prior approval of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities; provided, however, that where a consent under the Indenture would require the consent of each holder of Debentures affected thereby, no such consent shall be given by the Property Trustee without the prior written consent of each Holder of Trust Preferred Securities. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Trust Preferred Securities, except by a subsequent vote of the Holders of the Trust Preferred Securities. 32 The Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of default received with respect to the Debentures. In addition to obtaining the foregoing approvals of the Holders of the Trust Preferred Securities, prior to taking any of the foregoing actions, the Trustees shall, at the expense of the Sponsor, obtain an Opinion of Counsel experienced in such matters to the effect that such action shall not cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes. SECTION 6.2. Notice of Meetings. Notice of all meetings of the Holders of the Trust Preferred Securities, stating the time, place and purpose of the meeting, shall be given by the Property Trustee pursuant to Section 12.8 to each Holder of Trust Preferred Securities, at such Holder's registered address, at least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice. SECTION 6.3. Meetings of Holders of the Trust Preferred Securities. No annual meeting of Holders is required to be held. The Property Trustee, however, shall call a meeting of the Holders of the Trust Preferred Securities to vote on any matter upon the written request of the Holders of at least 25% in aggregate Accreted Liquidation Amount of the Outstanding Trust Preferred Securities and the Administrative Trustees or the Property Trustee may, at any time in their discretion, call a meeting of the Holders of the Trust Preferred Securities to vote on any matters as to which such Holders are entitled to vote. The Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, present in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Trust Preferred Securities. If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or by proxy, holding Trust Preferred Securities representing at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities held by the Holders present, either in person or by proxy, at such meeting shall constitute the action of the Holders of the Trust Preferred Securities, unless this Trust Agreement requires a greater number of affirmative votes. SECTION 6.4. Voting Rights. Holders shall be entitled to one vote for each $1,000 of Initial Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled to vote. SECTION 6.5. Proxies. At any meeting of Holders, any Holder entitled to vote there at may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall have been placed on file with the Administrative Trustees, or with such other officer or agent of the Trust as the Administrative Trustees may direct, for verification prior to the time at which such vote shall be taken. Pursuant 33 to a resolution of the Administrative Trustees, proxies may be solicited in the name of the Administrative Trustees or one or more officers of the Administrative Trustees. Only Holders of record shall be entitled to vote. When Trust Securities are held jointly by several persons, any one of them may vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received in respect of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. No proxy shall be valid more than three years after its date of execution. SECTION 6.6. Holder Action by Written Consent. Any action that may be taken by Holders at a meeting may be taken without a meeting if Holders holding at least a Majority in Accreted Liquidation Amount of all Trust Preferred Securities entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any other provision of this Trust Agreement) shall consent to the action in writing. SECTION 6.7. Record Date for Voting and Other Purposes. For the purposes of determining the Holders who are entitled to notice of and to vote at any meeting or by written consent, or to participate in any Distribution on the Trust Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrative Trustees may from time to time fix a date, not more than 90 days prior to the date of any meeting of Holders or the payment of a Distribution or other action, as the case may be, as a record date for the determination of the identity of the Holders of record for such purposes. SECTION 6.8. Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to the Property Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor of the Trustees, if made in the manner provided in this Section. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or 34 affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that any Trustee receiving the same deems sufficient. The ownership of Trust Securities shall be proved by the Securities Register. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Trust Security shall bind every future Holder of the same Trust Security and the Holder of every Trust Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustees, or the Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security. Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of the Accreted Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such Accreted Liquidation Amount. If any dispute shall arise between the Holders and the Trustees or among the Holders or the Trustees with respect to the authenticity, validity or binding nature of any request, demand, authorization, direction, consent, waiver or other Act of such Holder or Trustee under this Article VI, then the determination of such matter by the Property Trustee shall be conclusive with respect to such matter. A Holder may institute a legal proceeding directly against the Sponsor under the Guarantee to enforce its rights under the Guarantee without first instituting a legal proceeding against the Guarantee Trustee (as defined in the Guarantee), the Trust, any Trustee, or any Person or entity. SECTION 6.9. Inspection of Records. Upon reasonable notice to the Administrative Trustees and the Property Trustee, the records of the Trust shall be open to inspection by Holders during normal business hours for any purpose reasonably related to such Holder's interest as a Holder. SECTION 6.10. Action With Respect to the Debenture. So long as the Debentures are held by the Property Trustee on behalf of the Trust, with respect to any waiver, amendment or similar action that requires the consent of the Holders of the Debentures under the Indenture, the Property Trustee shall act at the written direction of the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities (unless a different percentage of Holders shall be specified in the Indenture with respect to such action). 35 ARTICLE VII REPRESENTATIONS AND WARRANTIES SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Sponsor and the Holders that: (a) the Property Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America; (b) the Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) the Delaware Trustee is a national banking association, duly organized, validly existing and in good standing under the federal laws of the United States of America. (d) the Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (e) this Trust Agreement has been duly authorized, executed and delivered by the Property Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of each of the Property Trustee and the Delaware Trustee enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (f) the execution, delivery and performance of this Trust Agreement have been duly authorized by all necessary corporate or other action on the part of the Property Trustee and the Delaware Trustee and do not require any approval of stockholders of the Property Trustee and the Delaware Trustee and such execution, delivery and performance will not (i) violate the articles of association or by-laws of the Property Trustee or the Delaware Trustee, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Property Trustee or the Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the State of New York or the State of Delaware, as the case may be, governing the banking, trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware Trustee; 36 (g) neither the authorization, execution or delivery by the Property Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property Trustee or the Delaware Trustee (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing law of the State of New York or the State of Delaware, governing the [banking], trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context), other than the filing of the Certificate of Trust with the Delaware Secretary of State; and (h) to the best of each of the Property Trustee's and the Delaware Trustee's knowledge, there are no proceedings pending or threatened against or affecting the Property Trustee or the Delaware Trustee in any court or before any governmental authority, agency or arbitration board or tribunal that, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Trustees under this Trust Agreement. SECTION 7.2. Representations and Warranties of Sponsor. The Sponsor hereby represents and warrants for the benefit of the Holders that: (a) the Trust Securities Certificates issued at the Time of Delivery on behalf of the Trust have been duly authorized and will have been duly and validly executed, issued and delivered by the Administrative Trustees pursuant to the terms and provisions of, and in accordance with the requirements of, this Trust Agreement, and the Holders will be, as of such date, entitled to the benefits of this Trust Agreement; and (b) there are no taxes, fees or other governmental charges payable by the Trust (or the Trustees on behalf of the Trust) under the laws of the State of Delaware or any political subdivision thereof in connection with the execution, delivery and performance by any Trustee of this Trust Agreement. ARTICLE VIII THE TRUSTEES SECTION 8.1. Certain Duties and Responsibilities. (a) The duties and responsibilities of the Trustees shall be as provided by this Trust Agreement, subject to Section 12.10 hereof with respect to the Property Trustee. Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the Trustees to expend or risk its or their own funds or otherwise incur any financial liability in the performance of any of its or their duties hereunder, or in the exercise of any of its or their rights or powers, if it or they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of this Section 37 8.1. To the extent that, at law or in equity, an Administrative Trustee or the Delaware Trustee has duties and liabilities relating to the Trust or to the Holders, such Administrative Trustee or the Delaware Trustee shall not be liable to the Trust or to any Holder for such Administrative Trustee's or Delaware Trustee's good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Administrative Trustees or the Delaware Trustee otherwise existing at law or in equity, are agreed by the Sponsor and the Holders to replace such other duties and liabilities of the Administrative Trustees or the Delaware Trustee. (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property and only to the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that the Trustees are not personally liable to such Holder for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 8.1(b) does not limit the liability of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture Act. (c) If an Event of Default has occurred and is continuing, the Property Trustee shall enforce this Trust Agreement for the benefit of the Holders. (d) The Property Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Trust Agreement (including pursuant to Section 12.10), and no implied covenants shall be read into this Trust Agreement against the Property Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 5.14), the Property Trustee shall exercise such of the rights and powers vested in it by this Trust Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (e) No provision of this Trust Agreement shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Trust Agreement (including pursuant to Section 12.10), and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Trust Agreement (including pursuant to Section 12.10); and 38 (B) in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Trust Agreement; but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Trust Agreement; (ii) the Property Trustee shall not be liable for any error of judgment made in good faith by an authorized officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement; (iv) the Property Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Debentures and the Payment Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the Trust Indenture Act; (v) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor; and money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except to the extent otherwise required by law; (vi) the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for the default or misconduct of any other Trustee, the Administrative Trustees or the Sponsor; and (vii) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it. 39 (f) The Administrative Trustees shall not be responsible for monitoring the compliance by the other Trustees or the Sponsor with their respective duties under this Trust Agreement, nor shall either Administrative Trustee be liable for the default or misconduct of any other Trustee or the Sponsor. (g) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and liabilities of the Property Trustee or the Administrative Trustees set forth herein. The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the Delaware Statutory Trust Act. The Delaware Trustee shall be entitled to all of the same rights, protections indemnities and immunities under the Trust Agreement and with respect to the Trust as the Property Trustee. SECTION 8.2. Certain Notices. Within thirty days after the occurrence of any Event of Default actually known to the Property Trustee, the Property Trustee shall transmit, in the manner and to the extent provided in Section 12.8, notice of such Event of Default to the Holders and the Administrative Trustees, unless such Event of Default shall have been cured or waived. Within five Business Days after the receipt of notice of the Sponsor's exercise of its right to defer the payment of interest on the Debentures pursuant to the Indenture, the Property Trustee shall transmit, in the manner and to the extent provided in Section 12.8, notice of such exercise to the Holders and the Administrative Trustees, unless such exercise shall have been revoked. The Property Trustee shall not be deemed to have knowledge of any Event of Default unless the Property Trustee shall have received written notice or a Responsible Officer of the Property Trustee charged with the administration of this Trust Agreement shall have obtained actual knowledge of such Event of Default. SECTION 8.3. Certain Rights of Property Trustee. Subject to the provisions of Section 8.1: (a) the Property Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any 40 matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Sponsor requesting the Sponsor's opinion as to the course of action to be taken; provided, however, that if the Sponsor fails to deliver such opinion within 10 Business Days, the Property Trustee may take such action, or refrain from taking such action, as the Property Trustee shall determine in the interests of the Holders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct; (c) any direction or act of the Sponsor or the Sponsor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or re-registration thereof; (f) the Property Trustee may consult with counsel of its own selection (which counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; provided that, nothing contained herein shall, however, relieve the Property Trustee of the obligation, upon the occurrence of an Event of Default (that has not been cured or waived) to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Sponsor and shall incur no liability of any kind by reason of such inquiry or investigation; 41 (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, provided that the Property Trustee shall be responsible for its own negligence or misconduct with respect to selection of any agent or attorney appointed by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Trustee shall be construed to be a duty. SECTION 8.4. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Trust Securities Certificates shall be taken as the statements of the Trust and the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees shall not be accountable for the use or application by the Sponsor of the proceeds of the Debentures. The Property Trustee makes no representation as to the title to, or value or condition of, the Trust Property or any part thereof, including the Debentures, nor as to the validity or sufficiency of the Trust Agreement, the Debentures or the Trust Securities. The Property Trustee makes no representation as to the validity or the qualification of the Trust as a Delaware statutory trust or a grantor trust or as to the sale of the Trust Preferred Securities by the Trust, including without limitation, any registration exemptions applicable to the Trust Securities. SECTION 8.5. May Hold Securities. Any Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as provided in the definition of the term "Outstanding" in Article I, may otherwise deal with the Trust with the same rights it would have if it were not Trustee or such other agent. 42 SECTION 8.6. Compensation; Indemnity; Fees. The Sponsor agrees: (a) to pay to the Trustees from time to time such reasonable compensation for all services rendered by them hereunder as may be separately agreed by the Sponsor and the Trustees from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of their agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by their own negligence, bad faith or willful misconduct; and (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any officer, director, shareholder, employee, representative or agent of any Trustee, and (iv) any employee or agent of the Trust (referred to herein as an "Indemnified Person") from and against any loss, damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by reason of the creation, operation or dissolution of the Trust or any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Trust Agreement, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of negligence, bad faith or willful misconduct with respect to such acts or omissions. The provisions of this Section 8.6 shall survive the termination of this Trust Agreement and the removal or resignation of any Trustee. No Trustee may claim any Lien on any Trust Property as a result of any amount due pursuant to this Section 8.6. Subject to Section 8.8, The Sponsor and any Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Trust Securities shall have no rights by virtue of this Trust Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. Neither the Sponsor nor any Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and the Sponsor and any Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depository for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. 43 SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrative Trustees. (a) There shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that is a national or state chartered bank or trust company and eligible pursuant to the Trust Indenture Act to act as such and that has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 8.7 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the provisions of this Section 8.7(a), it shall resign immediately in the manner and with the effect hereinafter specified in this Article VIII. At the time of appointment, the Property Trustee must have securities rated in one of the three highest rating categories by a nationally recognized statistical rating organization. (b) There shall at all times be one or more Administrative Trustees hereunder with respect to the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity. (c) There shall at all times be a Delaware Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware, or (ii) a legal entity with its principal place of business in the State of Delaware and that otherwise meets the requirements of applicable Delaware law and that shall act through one or more persons authorized to bind such entity. SECTION 8.8. Conflicting Interests. (a) If the Property Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Trust Agreement. (b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described in this Trust Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. SECTION 8.9. Co-Trustees and Separate Trustee. Unless and until a Debenture Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Holder of Common Securities and the Administrative Trustees shall have the power to appoint one or more Persons either to act as co-trustee, jointly with the Property Trustee, of all or any part of 44 such Trust Property, or to the extent required by law to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. If a Debenture Event of Default shall have occurred and be continuing, the Property Trustee shall have the sole power to so appoint such a co-trustee or separate trustee, and upon the written request of the Property Trustee, the Sponsor and the Administrative Trustees shall for such purpose join with the Property Trustee in the execution, delivery, and performance of all instruments and agreements necessary or proper to appoint such co-trustee or separate trustee. Any co-trustee or separate trustee appointed pursuant to this Section shall either be (i) a natural person who is at least 21 years of age and a resident of the United States, or (ii) a legal entity with its principal place of business in the United States that shall act through one or more persons authorized to bind such entity. Should any written instrument from the Sponsor be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Sponsor. Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Trust Securities shall be executed by one or more Administrative Trustees, and the Trust Securities shall be delivered by the Property Trustee, and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Property Trustee specified hereunder shall be exercised solely by the Property Trustee and not by such co-trustee or separate trustee. (b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or separate trustee. (c) The Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Sponsor, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section 8.9, and, in case a Debenture Event of Default has occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Sponsor. Upon the written request of the Property Trustee, the Sponsor shall join with the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such 45 resignation or removal. A successor to any co-trustee or separate trustee so resigning or removed may be appointed in the manner provided in this Section 8.9. No co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee or any other trustee hereunder. (d) The Property Trustee shall not be liable by reason of any act or omission of a co-trustee or separate trustee. (e) Any Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee. SECTION 8.10. Resignation and Removal; Appointment of Successor. No resignation or removal of any Trustee (the "Relevant Trustee") and no appointment of a successor Trustee pursuant to this Article VIII shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 8.11. Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by giving written notice thereof to the Sponsor and by appointing a successor Relevant Trustee, which successor shall be acceptable to the Sponsor. The Relevant Trustee shall appoint a successor by requesting from at least three Persons meeting the eligibility requirements its expenses and charges to serve as the Relevant Trustee on a form provided by the Administrative Trustees, and selecting the Person who agrees to the lowest expenses and charges. If the instrument of acceptance by the successor Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 60 days after the giving of such notice of resignation, the Relevant Trustee may petition, at the expense of the Sponsor, in the case of the Property Trustee, any court of competent jurisdiction for the appointment of a successor Relevant Trustee. The Administrative Trustees, or any of them, may be removed at any time by Act of the Holders of Common Securities delivered to the Relevant Trustee. The Property Trustee or the Delaware Trustee, or both of them, may be removed by Act of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, delivered to the Relevant Trustee (in its individual capacity and, in the case of the Property Trustee, on behalf of the Trust) (i) for cause (including upon the occurrence of an Event of Default described in subparagraph (d) of the definition thereof with respect to the Relevant Trustee), or (ii) at any time if a Debenture Event of Default shall have occurred and be continuing. Unless and until a Debenture Event of Default shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at any time by Act of the Holders of the Common Securities. If a resigning Property Trustee or Delaware Trustee shall fail to appoint a successor, or if the Property Trustee or the Delaware Trustee shall be removed or become incapable of acting as Trustee, or if a vacancy shall occur in the office of the Property Trustee or the Delaware Trustee for any cause, the Holders of the Common Securities by Act of such Holders delivered to the Relevant Trustee or, if a Debenture Event of Default shall have occurred and be continuing, the 46 Holders of the Trust Preferred Securities, by Act of the Holders of not less than 25% in aggregate Accreted Liquidation Amount of the Trust Preferred Securities then Outstanding delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or Trustees, and such successor Trustee shall comply with the applicable requirements of Section 8.11. If no successor Relevant Trustee shall have been so appointed by the Holders of the Common Securities or Trust Preferred Securities, as the case may be, and accepted appointment in the manner required by Section 8.11, any Holder, on behalf of such Holder and all others similarly situated, or any other Trustee, may petition any court of competent jurisdiction for the appointment of a successor Relevant Trustee. The resigning Trustee shall give notice of each resignation or each removal of an Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 12.8 and shall give notice to the Sponsor and to the other Trustees. Each notice shall include the name of the successor Relevant Trustee and the address of its Corporate Trust Office if it is the Property Trustee. Notwithstanding the foregoing or any other provision of this Trust Agreement, if any Delaware Trustee who is a natural person dies or becomes, in the opinion of the Holders of the Common Securities, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the Property Trustee following the procedures regarding expenses and charges set forth above (with the successor being a Person who satisfies the eligibility requirement for the Delaware Trustee set forth in Section 8.7). SECTION 8.11. Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor to a Relevant Trustee, the Sponsor, the retiring Relevant Trustee and each successor Trustee with respect to the Trust Securities shall execute and deliver an amendment hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Trust Securities and the Trust, and (b) shall add to or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the Trust by more than one party hereto, it being understood that nothing herein or in such amendment shall constitute such parties co-trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee, other than the filing of an amendment to the Certificate of Trust to the extent required under the Delaware Statutory Trust Act; but, on request of the Trust or any successor Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the Trust Securities and the Trust. Upon request of any such successor party, the Trust shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor party all such rights, powers and trusts referred to in the preceding paragraph. 47 No successor party shall accept its appointment unless at the time of such acceptance such successor party shall be qualified and eligible under this Article VIII. SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Relevant Trustee shall be a party, or any Person, succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this Article VIII, without the execution or filing of any paper or any further act on the part of any of the parties hereto, other than the filing of an amendment to the Certificate of Trust to the extent required under the Delaware Statutory Trust Act. SECTION 8.13. Preferential Collection of Claims Against Sponsor or Trust. If and when the Property Trustee shall be or become a creditor of the Sponsor or the Trust (or any other obligor upon the Trust Preferred Securities), the Property Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Sponsor or the Trust (or any such other obligor). SECTION 8.14. Trustee May File Proofs of Claim. In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Trust or any other obligor upon the Trust Securities or the property of the Trust (including the Debentures) or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Trust Securities shall then be due and payable and irrespective of whether the Property Trustee shall have made any demand on the Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee under Section 8.6, and 48 (c) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expense of administration under any Bankruptcy Law or law relating to creditors' rights generally. Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 8.15. Reports by Property Trustee. (a) Within 60 days after May 15 of each year commencing with May 15, 2006, the Property Trustee shall transmit to all Holders in accordance with Section 12.8, and to the Sponsor, a brief report dated as of the immediately preceding May 15 with respect to: (i) its eligibility under Section 8.7 or, in lieu thereof, if to the best of its knowledge it has continued to be eligible under said Section, a written statement to such effect; (ii) a statement that the Property Trustee has complied with all of its obligations under this Trust Agreement during the twelve-month period (or, in the case of the initial report, the period since the Closing Date) ending with such May 15 or, if the Property Trustee has not complied in any material respect with such obligations, a description of such noncompliance; and (iii) any change in the property and funds in its possession as Property Trustee since the date of its last report and any action taken by the Property Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Trust Securities. (b) In addition, the Property Trustee shall transmit to Holders such reports concerning the Property Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each national stock exchange, the Nasdaq National Market or such other interdealer quotation system or self-regulatory organization upon which the Trust Preferred Securities are listed or quoted, if any, and with the Commission and the Sponsor. 49 SECTION 8.16. Reports to the Property Trustee. Each of the Sponsor and the Administrative Trustees shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. The Sponsor and the Administrative Trustees shall annually file with the Property Trustee a certificate specifying whether such Person is in compliance with all of the terms and covenants (if any) applicable to such Person hereunder. SECTION 8.17. Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Administrative Trustees shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers' Certificate. SECTION 8.18. Number of Trustees. (a) The number of Trustees shall be five, unless the Property Trustee also acts as the Delaware Trustee, in which case the number of Trustees may be three. (b) If an Trustee ceases to hold office for any reason, a vacancy shall occur. The vacancy shall be filled with an Trustee appointed in accordance with Section 8.10. (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of an Trustee shall not operate to annul or dissolve the Trust. SECTION 8.19. Delegation of Power. (a) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 2.7(a) or making any governmental filing; and (b) The Administrative Trustees shall have power to delegate from time to time to such of their number the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of this Trust Agreement. 50 SECTION 8.20. Trust Liabilities. All liabilities of the Trust will be liabilities of the Trust as an entity, and will be paid or satisfied from the Trust Property and the other assets of the Trust. No liability of the Trust will be payable in whole or in part by the Property Trustee in its individual capacity or in its capacity as Property Trustee or by any member, partner, shareholder, director, officer, employee, agent or attorney of the Property Trustee. ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER SECTION 9.1. Dissolution Upon Expiration Date. Unless earlier dissolved, the Trust shall automatically dissolve, and its affairs be wound up, on May 17, 2056 (the "Expiration Date"), following the distribution of the Trust Property in accordance with Section 9.4. SECTION 9.2. Early Dissolution. The first to occur of any of the following events is an "Early Dissolution Event": (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Sponsor, unless the Common Securities shall be transferred as provided by Section 5.10, in which case this provision shall refer instead to any such successor Holder of the Common Securities; (b) the written direction to the Property Trustee from all of the Holders of the Common Securities at any time to dissolve the Trust and, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to distribute the Debentures to Holders in exchange for the Trust Preferred Securities (which direction is optional and wholly within the discretion of the Holders of the Common Securities); (c) the redemption of all of the Trust Preferred Securities in connection with the redemption or repayment of all the Debentures; and (d) the entry of an order for dissolution of the Trust by a court of competent jurisdiction. SECTION 9.3. Dissolution. The respective obligations and responsibilities of the Trustees and the Trust shall terminate upon the latest to occur of the following: (a) the distribution by the Property Trustee to Holders of all amounts required to be distributed hereunder upon the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b) the payment of any and all expenses owed by the Trust; (c) the discharge of all administrative duties of the Administrative Trustees, including the performance of any tax reporting obligations with respect to the Trust or the Holders; and (d) the filing of a certificate of 51 cancellation, at the direction and expense of the Sponsor, by the Trustees with the Delaware Secretary of State pursuant to Section 3810 of the Delaware Statutory Trust Act. SECTION 9.4. Liquidation. (a) If an Early Dissolution Event specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by the Property Trustee as expeditiously as the Property Trustee determines to be possible by distributing, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to each Holder a Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Securities at such Holder's address appearing in the Securities Register. All such notices of liquidation shall: (i) state the CUSIP Number of the Trust Securities; (ii) state the Liquidation Date; (iii) state that from and after the Liquidation Date, the Trust Securities will no longer be deemed to be Outstanding and any Trust Securities Certificates not surrendered for exchange will be deemed to represent a Like Amount of Debentures, or if Section 9.4(d) applies, a right to receive a Liquidating Distribution; and (iv) provide such information with respect to the mechanics by which Holders may exchange Trust Securities Certificates for Debentures, or if Section 9.4(d) applies, receive a Liquidation Distribution, as the Property Trustee (after consultation with the Administrative Trustees) shall determine. (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the Trust and distribution of the Debentures to Holders, the Property Trustee, either itself acting as exchange agent or through the appointment of a separate exchange agent, shall establish a record date for such distribution (which shall be not more than 30 days prior to the Liquidation Date) and, establish such procedures as it shall deem appropriate to effect the distribution of Debentures in exchange for the Outstanding Trust Securities Certificates. (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of such Certificates to the exchange agent for exchange, (iii) any Trust Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Debentures bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid Distributions on such Trust Securities Certificates until such certificates are so surrendered (and until such certificates are so surrendered, no payments of interest or principal will be made to Holders of Trust Securities Certificates with respect to such Debentures) and (iv) all rights of Holders holding Trust 52 Securities will cease, except the right of such Holders to receive Debentures upon surrender of Trust Securities Certificates. (d) If, notwithstanding the other provisions of this Section 9.4, whether because of an order for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the Debentures in the manner provided herein is determined by the Property Trustee not to be practical, or if an Early Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust Property shall be liquidated, and the Trust shall be dissolved and its affairs wound-up, by the Property Trustee in such manner as the Property Trustee determines. In such event, the Holders, if any, will be entitled to receive out of the assets of the Trust available for distribution to Holders, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the Accreted Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Accreted Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holders of the Common Securities will be entitled to receive Liquidation Distributions pro rata (determined as aforesaid) with Holders of Trust Preferred Securities, except that, if a Debenture Event of Default specified in Section 6.1(a)(1) or 6.1(a)(2) of the Supplemental Indenture has occurred and is continuing, the Trust Preferred Securities shall have a priority over the Common Securities as provided in Section 4.3. SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust. The Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any Person or other body, except pursuant to this Section 9.5 or Section 9.4. At the request of the Holders of the Common Securities, with the consent of the Administrative Trustees, but without the consent of the Holders of the Trust Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized as such under the laws of any state; provided, that (i) such successor entity either (a) expressly assumes all of the obligations of the Trust with respect to the Trust Preferred Securities, or (b) substitutes for the Trust Preferred Securities other securities having substantially the same terms as the Trust Preferred Securities (the "Successor Securities") so long as the Successor Securities have the same priority as the Trust Preferred Securities with respect to distributions and payments upon liquidation, redemption and otherwise, (ii) a trustee of such successor entity possessing substantially the same powers and duties as the Property Trustee is appointed to hold the Debentures, (iii) the Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or other organization on which the Trust Preferred Securities are listed, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Trust Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization, (v) such merger, consolidation, amalgamation, replacement, conveyance, 53 transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Trust Preferred Securities (including any Successor Securities) in any material respect, (vi) such successor entity has a purpose substantially identical to that of the Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Property Trustee has received an Opinion of Counsel to the effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Trust Preferred Securities (including any Successor Securities) in any material respect, and (b) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor entity will be required to register as an "investment company" under the Investment Company Act, and (viii) the Sponsor or its permitted transferee owns all of the common securities of such successor entity and the Sponsor guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the Guarantee Agreement. Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of all of the Trust Preferred Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other Person or permit any other Person to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or the successor entity to be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes. ARTICLE X REMARKETING AND RESET RATE MECHANICS SECTION 10.1. Obligation to Conduct Remarketing and Related Requirements. (a) The Sponsor and the Trust shall appoint a nationally recognized investment banking firm as Remarketing Agent and enter into a Remarketing Agreement at least 30 days prior to each Remarketing Date. The Sponsor and the Trust may appoint different Remarketing Agents for Remarketings on and in connection with different Remarketing Dates, provided that they shall have appointed a Remarketing Agent and caused the related Remarketing Agreement to be in effect for the period commencing not less than 30 days prior to the related Remarketing Date and continuing through such Remarketing Date and the determination in accordance with this Article X that the related Remarketing is a Successful Remarketing or Failed Remarketing. Each Remarketing Agreement shall include such terms, conditions and other provisions as the Sponsor, the Trust and the Remarketing Agent may agree among themselves but shall in any event include provisions to substantially the following effect: (i) provide that the Remarketing Agent will use its commercially reasonable efforts to obtain a price for the Trust Preferred Securities to be remarketed in the Remarketing which results in proceeds, net of the Remarketing Agent's Fee, equal to at least 100% of their aggregate Accreted Liquidation Amount, plus accrued and unpaid Distributions, if any, to the Remarketing Settlement Date (including the Additional Interest, if any, that remains accrued and unpaid on the Remarketing Settlement Date because the Sponsor has exercised its right to defer interest on the Debentures in accordance with Section 4.01 of the Base Indenture); 54 (ii) provide that the Remarketing Agent will in its sole discretion reset the Distribution Rate on the Trust Preferred Securities (as a yield to the Scheduled Redemption Date unless the Sponsor elects, pursuant to Section 2.13 of the First Supplemental Indenture and Section 10.2 of this Trust Agreement, to cause interest on the Debentures to be paid in cash, and then as a rate per annum for payment of interest in cash on each applicable Distribution Date) in order to give effect to clause (i) above for Distribution Periods commencing on or after such Remarketing Settlement Date, subject to Section 10.3; (iii) provide that the Remarketing Agent will deduct the Remarketing Agent's Fee from the proceeds of the Remarketing and remit any proceeds remaining after such deduction to or at the direction of the Property Trustee, who either will apply such proceeds (or will have given the Remarketing Agent instructions to remit such proceeds in a manner that will result in their application) as follows (allocated to the Trust Preferred Securities that participated in the Remarketing on a pro rata basis in proportion to their Accreted Liquidation Amounts): (iv) to the extent such proceeds relate to Trust Preferred Securities that are a part of Normal Common Equity Units, to pay such proceeds up to the aggregate Par Proceeds Remarketing Amount to the Stock Purchase Contract Agent for application in accordance with the Stock Purchase Contract Agreement and to pay the Excess Proceeds Remarketing Amount, if any, to the applicable selling Holders; and (b) to the extent the proceeds relate to Separate Trust Preferred Securities, to pay such proceeds to the applicable selling Holders; and (i) provide that the Remarketing Agent's Fee for the Remarketing will be as agreed among the Sponsor, the Trust and the Remarketing Agent and set forth in the Remarketing Agreement. (c) The Sponsor and the Trust shall use their commercially reasonable efforts to effect remarketing of the Trust Preferred Securities as described in this Article X. If in the judgment of counsel to the Sponsor or to the Remarketing Agent it is necessary for a registration statement covering the Trust Preferred Securities to have been filed and have become effective under the Securities Act in order to effect the Remarketing, then the Sponsor and the Trust shall use their commercially reasonable efforts (i) to ensure that a registration statement covering the full Accreted Liquidation Amount of Trust Preferred Securities to be remarketed shall have become effective in a form that will enable the Remarketing Agent to rely on it in connection with the Remarketing or (ii) effect such Remarketing pursuant to Rule 144A under the Securities Act or another available exemption from the registration requirements under the Securities Act. SECTION 10.2. Sponsor Decisions in Connection With Remarketing. In connection with Remarketings, the Sponsor shall have the right hereunder to change certain terms of the Trust Preferred Securities (and under Section 2.10 of the Supplement Indenture, the Sponsor has the right to make corresponding changes in certain terms of the 55 Debentures) as provided below in this Section 10.2. By not later than the 30th day prior to each Remarketing Date, the Sponsor will specify the following information or decisions in a notice to the Remarketing Agent, the Property Trustee, the Debenture Trustee and the Stock Purchase Contract Agent (paragraphs (a) through (e) applying only if the Remarketing is Successful and paragraph (f) applying only if the related Remarketing Settlement Date is February 15, 2009 and the Remarketing is a Failed Remarketing): (a) whether from and after the Remarketing Settlement Date the Debentures will pay interest (and, accordingly, the Trust Preferred Securities will pay Distributions) in cash (it being understood and agreed that, unless the Sponsor affirmatively elects to cause the Debentures to pay interest (and the Trust Preferred Securities to pay Distributions) in cash from and after the Remarketing Settlement Date, interest will not be paid or Distributions made in cash but, instead, will accrete in accordance with Section 4.1(a) of this Agreement and Section 2.10 of the Supplemental Indenture, as applicable); (b) whether the Debenture Stated Maturity Date (and, accordingly, the Scheduled Redemption Date) will remain at February 15, 2039 or will be changed to an earlier date (specifying such date if applicable); provided, however, that the Debenture Stated Maturity Date may not be changed to a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (c) whether the Debentures (and, accordingly, the Trust Preferred Securities) will be redeemable at the Sponsor's option on a day prior to the Debenture Stated Maturity Date and, if so, the date on and after which the Debentures may be so redeemed and the redemption price or prices; provided, however, that an early redemption date for the Debentures and related early Redemption Date hereunder may not be a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (d) whether the Sponsor elects, in connection with the Remarketing, to add any additional financial covenants to the Indenture applicable to the Debentures, including the form of supplemental indenture proposed to be entered into in order to give effect to such additional financial covenants if the Sponsor is choosing to add any financial covenants; (e) whether in connection with such Remarketing the Sponsor is exercising its right under Section 6.1 of the Supplemental Indenture and Section 6.3 of the Guarantee Agreement to cause the subordination provisions in the Indenture applicable to the Debentures and in the Guarantee Agreement to no longer be of force and effect from and after the then current Remarketing Settlement Date; and (f) if the Remarketing Settlement Date is February 15, 2009 and if the related Remarketing is a Failed Remarketing: 56 (i) whether the Debenture Stated Maturity Date (and, accordingly, the Scheduled Redemption Date) will remain at February 15, 2039 or will be changed to an earlier date (specifying such date if applicable); and (ii) whether the Debentures (and, accordingly, the Trust Preferred Securities) will be redeemable at the Sponsor's option on a date prior to the Debenture Stated Maturity Date and, if so, the date on and after which the Debentures may be so redeemed; provided, however, any changed Debenture Stated Maturity Date and Scheduled Redemption Date determined pursuant to clause (i) or early redemption date determined pursuant to clause (ii) may not be a date earlier than August 15, 2010 or, if February 15, 2009 occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. SECTION 10.3. Reset of Distribution Rate in Connection with Remarketings and Related Changes in Terms. (a) As part of and in connection with each Remarketing, the Remarketing Agent shall reset the Distribution Rate, as contemplated by Section 10.1(a)(ii) and in accordance with the other provisions of this Article X, to a new rate (the "Reset Rate"), rounded to the nearest one-thousandth (0.001) of one percent per annum, that will apply to all Trust Preferred Securities (whether or not the Holders thereof participated in the Remarketing) if such Remarketing is Successful for each Distribution Period commencing on or after such Remarketing Settlement Date, subject to the following provisions and limitations: (i) the Reset Rate in connection with a Remarketing for settlement on the Remarketing Settlement Date, if such date is on or prior to November 15, 2008, may not be reset to a rate per annum that exceeds the Reset Cap; and (ii) the Reset Rate may not be less than 0% per annum in connection with any Remarketing. (b) If the Remarketing has been determined to be Successful in accordance with Section 10.4(e), by approximately 4:30 P.M., New York City time, on any Remarketing Date, the Remarketing Agent shall notify the Sponsor, the Property Trustee, the Debenture Trustee and the Stock Purchase Contract Agent that the Remarketing was Successful and the Reset Rate determined as part of such Remarketing in accordance with this Article X. (c) If a Remarketing is Successful, then commencing with the related Remarketing Settlement Date the Distribution Rate shall be reset to the Reset Rate determined in accordance with this Article X pursuant to such Remarketing and the other changes, if any, in the terms of the Debentures and the Trust Preferred Securities, as applicable, as notified by the Sponsor pursuant to Section 10.2, shall become effective (in accordance with the Indenture in the case of the Debentures). 57 (d) If a Remarketing for a settlement on a Remarketing Settlement Date prior to February 15, 2009 is not Successful: (i) no Trust Preferred Securities will be sold in such Remarketing; (ii) the Distribution Rate will remain unchanged unless and until it is reset pursuant to a subsequent Remarketing in accordance with this Article X; (iii) the other changes, if any, in the terms of the Debentures and the Trust Preferred Securities, as applicable, as notified by the Sponsor pursuant to Section 10.2, shall not become effective (whether pursuant to this Agreement in the case of the Trust Preferred Securities or pursuant to the Indenture in the case of the Debentures); and (iv) the Sponsor, the Trust and the applicable Remarketing Agent shall attempt another Remarketing on the next succeeding date that is a Remarketing Settlement Date. (e) If a Remarketing for a settlement on the February 15, 2009 Remarketing Settlement Date is not Successful: (i) no Trust Preferred Securities will be sold in such Remarketing and no further attempts at Remarketing shall be made; (ii) the Distribution Rate will remain unchanged and, in accordance with the Supplemental Indenture, the Debentures will continue to bear cash interest (and under this Trust Agreement the Trust Preferred Securities will continue to bear cash Distributions) at the Distribution Rate otherwise in effect, payable semi-annually on each February 15 and August 15 thereafter; (iii) the other changes, if any, in the terms of the Debentures and the Trust Preferred Securities, as applicable, as notified by the Sponsor pursuant to clauses (a) through (e) of the second sentence in Section 10.2, shall not become effective (whether pursuant to this Trust Agreement in the case of the Trust Preferred Securities or pursuant to the Indenture in the case of the Debentures); (iv) the Debenture Stated Maturity Date, Scheduled Redemption Date, and early redemption date for the Debentures and Trust Preferred Securities, will change in accordance with paragraph (f) of the second sentence of Section 10.2, as applicable; (v) in the case of Trust Preferred Securities that are included in Normal Common Equity Units, such Trust Preferred Securities will be applied in satisfaction of the Holders' obligations under Stock Purchase Contracts in accordance with the Pledge Agreement; and (vi) in the case of Separate Trust Preferred Securities, such Trust Preferred Securities will be returned to the related Holders in accordance with the 58 Pledge Agreement and Holders of Separate Trust Preferred Securities will have the rights provided for in Section 10.5. SECTION 10.4. Remarketing Procedures. (a) The Property Trustee will give Holders hereunder, the Stock Purchase Contract Agreement provides the Stock Purchase Agent will give Holders (as defined therein) of Common Equity Units, and the Sponsor will request that DTC give to its participants holding Common Equity Units or Trust Preferred Securities, notice of a Remarketing at least 21 Business Days prior to the related Remarketing Date. Such notice will set forth: (i) whether for Distribution Periods commencing on or after the Remarketing Settlement Date the Debentures will pay interest (and, accordingly, the Trust Preferred Securities will pay Distributions) in cash or instead will accrete interest and Distributions, as applicable, together with the applicable Distribution Dates and related record dates; (ii) any change in the Debenture Stated Maturity Date and Scheduled Redemption Date and, if applicable, the date on and after which the Sponsor will have the right to redeem the Debentures (resulting in a redemption by the Trust of the Trust Preferred Securities); (iii) whether the Sponsor's obligations under the Debentures and the Guarantee Agreement will remain subordinated after the Remarketing Settlement Date; (iv) any other changes in the terms of the Debentures or the Trust Preferred Securities notified by the Sponsor in connection with such Remarketing pursuant to Section 10.2 (including, if the Remarketing Settlement Date is February 15, 2009 and the Remarketing is a Failed Remarketing, any change in the Debenture Stated Maturity Date and Scheduled Redemption Date and, if applicable, the date on or after which the Sponsor will have the right to redeem the Debentures (resulting in a redemption by the Sponsor of the Common Equity Units)); (v) the procedures a beneficial owner must follow if it holds its Trust Preferred Securities as a component of Normal Common Equity Units to elect not to participate in the Remarketing and the date by which such election must be made; (vi) the procedures a beneficial owner must follow if it holds Separate Trust Preferred Securities to elect to participate in the Remarketing; and (vii) in the case of a Remarketing for settlement on the February 15, 2009 Remarketing Settlement Date, the procedures an Owner must follow in the event such Remarketing is a Failed Remarketing if such Owner holds Separate Trust Preferred Securities to exercise its Put Right. 59 (b) On any Remarketing Date, all outstanding Trust Preferred Securities included in Normal Common Equity Units will be tendered or deemed tendered to the Remarketing Agent for Remarketing unless the Holder thereof elects not to participate in the Remarketing. Each Holder of Trust Preferred Securities included in Normal Common Equity Units, by purchasing such Trust Preferred Securities, agrees to have such Trust Preferred Securities remarketed on any Remarketing Date (unless such Holder elects not to participate in the Remarketing as provided herein) and authorizes the Remarketing Agent to take any and all action on its behalf necessary to effect the Remarketing. On any Remarketing Date, each Holder of Trust Preferred Securities included in Normal Common Equity Units will have the right to elect not to have its Trust Preferred Securities remarketed by giving notice and taking the other actions provided for in Section 5.05 of the Pledge Agreement. (c) Each Holder of Separate Trust Preferred Securities may elect to have such Holder's Separate Trust Preferred Securities remarketed in any Remarketing. A Holder making such an election must, pursuant to the Pledge Agreement, notify the Custodial Agent and deliver such Separate Trust Preferred Securities to the Custodial Agent on or prior to 5:00 P.M., New York City time, on or prior to the fifth Business Day immediately preceding the applicable Remarketing Date (but no earlier than the Distribution Date immediately preceding the applicable Remarketing Date). Any such notice and delivery may not be conditioned upon the level at which the Reset Rate is established in the Remarketing or any other condition. Any such notice and delivery may be withdrawn on or prior to 5:00 P.M., New York City time, on the fifth Business Day immediately preceding the applicable Remarketing Date in accordance with the provisions set forth in the Pledge Agreement. Any such notice and delivery not withdrawn by such time will be irrevocable with respect to such Remarketing. Pursuant to Section 5.07(c) of the Pledge Agreement, promptly after 11:00 A.M., New York City time, on the Business Day immediately preceding the applicable Remarketing Date, the Custodial Agent, based on the notices and deliveries received by it prior to such time, shall notify the Remarketing Agent of the Initial Liquidation Amount of Separate Trust Preferred Securities to be tendered for Remarketing and shall cause such Separate Trust Preferred Securities to be presented to the Remarketing Agent. (d) If the Remarketing on a Remarketing Date is Successful, then the Remarketing Agent shall deduct the Remarketing Agent's Fee to which it is entitled as provided in Section 10.1 and the related Remarketing Agreement from the proceeds of such Remarketing and remit the remaining proceeds to the Property Trustee in accordance with Section 10.1(a)(iii) for application as provided therein. (e) If by 4:00 P.M., New York City time, on any Remarketing Date the Remarketing Agent has found buyers for all of the Trust Preferred Securities offered in the Remarketing in accordance with this Article X, a Successful Remarketing shall be deemed to have occurred. In the event of a Successful Remarketing, the Sponsor shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing was successful and specifying the Reset Rate and shall post such information on its website on the World Wide Web. 60 (f) If, by 4:00 P.M., New York City time, on any Remarketing Date the Remarketing Agent is unable to find buyers for all of the Trust Preferred Securities offered in the Remarketing in accordance with this Article X, a Failed Remarketing shall be deemed to have occurred. In the event of a Failed Remarketing, the Sponsor shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing was a Failed Remarketing and, if such Failed Remarketing was for settlement on February 15, 2009, stating the aggregate principal amount of Debentures that the Sponsor will be required to repurchase as required pursuant to Section 2.7 of the Supplemental Indenture, and the related aggregate Accreted Liquidation Amount of Trust Preferred Securities that the Trust will be required to purchase pursuant to Section 10.5, and publish such information on its website on the World Wide Web. (g) The right of each Holder (whether of Separate Trust Preferred Securities or of Trust Preferred Securities included in Normal Common Equity Units) to have its Trust Preferred Securities remarketed and sold in connection with any Remarketing shall be limited to the extent that (i) the Remarketing Agent conducts a Remarketing pursuant to the terms of the Remarketing Agreement, (ii) the Remarketing Agent is able to find a purchaser or purchasers for the Trust Preferred Securities offered in the Remarketing in accordance with this Article X and the Remarketing Agreement, and (iii) the purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required. (h) Neither the Property Trustee, the Sponsor nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon tender of Trust Preferred Securities for remarketing. SECTION 10.5. Put Right. (a) Subject to Section 10.5(b), if there has been a Final Failed Remarketing, Holders of Trust Preferred Securities will, subject to this Section 10.5, have the right (the "Put Right") to require: (i) the Property Trustee, as Holder (as defined in the Indenture) of Debentures, to exercise its right under Section 2.7 of the Supplemental Indenture to require the Sponsor to purchase thereunder a Like Amount of Debentures; and (ii) as a consequence, to require the Sponsor to purchase on February 15, 2009 under and in accordance with such Section 2.7 of the Supplemental Indenture a Like Amount of Debentures for consideration per Debenture (the "Put Consideration") of cash in an amount equal to 100% of their Accreted Principal Amount as of such date plus a junior subordinated note of the Sponsor, bearing interest at the rate of 4.82% per annum, in the amount of the accrued and unpaid interest (including Additional Interest) to but excluding such date on such Debentures and payable on August 15, 2010 or, if February 15, 2009 is during a Deferral Period and such Deferral Period ends after August 15, 2010, the fifth anniversary of the first day of such Deferral Period. 61 The Property Trustee will remit to each Holder of Separate Trust Preferred Securities making such election the Put Consideration upon receipt of the Put Consideration from the Sponsor. (b) The Put Right of a Holder of Separate Trust Preferred Securities will only be exercisable upon delivery of a notice to the Property Trustee by such Holder on or prior to 11:00 A.M., New York City time, on the second Business Day prior to the February 15, 2009 Remarketing Settlement Date. A Holder may give such notice by, when it makes its election under Section 10.4(c) to cause its Trust Preferred Securities to be offered in the Remarketing, stating in such notice that, in the event such Remarketing is in connection with the February 15, 2009 Remarketing Settlement Date and if such Remarketing is a Failed Remarketing, then such Holder makes the election provided for under this Section 10.5. (c) The rights of Holders of Trust Preferred Securities included in Normal Common Equity Units, including their Put Rights, will be subject to the security interest in favor of the Sponsor provided for in the Pledge Agreement. SECTION 10.6. Common Securities. The terms of the Common Securities shall automatically be modified as and when the terms of Trust Preferred Securities change pursuant to this Article, with the consequence that the terms of the Trust Preferred Securities shall at all times be identical to the terms of the Common Securities, except (i) for the subordination of the Common Securities pursuant to Section 4.3 and (ii) that Section 10.5 shall apply only to the Trust Preferred Securities. ARTICLE XI OTHER COMMON EQUITY UNIT RELATED PROVISIONS SECTION 11.1. Tax Treatment. Each Holder of Trust Preferred Securities agrees, by acceptance of Trust Preferred Securities, and each Owner agrees, by acceptance of a beneficial interest in Trust Preferred Securities, to treat for all United States federal income tax purposes (i) the Trust as a grantor trust, (ii) itself as the owner of the Stock Purchase Contracts and the related ownership interest in the Trust Preferred Securities or treasury securities pledged under the Pledge Agreement, as the case may be, (iii) the Debentures as indebtedness of the Sponsor, and (iv) the fair market value of each undivided beneficial interest in each ownership interest in the Trust Preferred Securities included in each Normal Common Equity Unit as $12.50 and the fair market value of each Stock Purchase Contract as $0. ARTICLE XII MISCELLANEOUS PROVISIONS SECTION 12.1. Limitation of Rights of Holders. Except as set forth in Section 9.2, the death or incapacity of any person having an interest, beneficial or otherwise, in Trust Securities shall not operate to terminate this Trust 62 Agreement, nor dissolve or annul the Trust, nor entitle the legal representatives or heirs of such Person or any Holder for such person, to claim an accounting, take any action or bring any proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. SECTION 12.2. Amendment. (a) This Trust Agreement may be amended from time to time by the Administrative Trustees and the Holders of all of the Common Securities, without the consent of any Holder of the Trust Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Trust will not be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes at all times that any Trust Securities are outstanding, to ensure that the Trust will not be required to register as an "investment company" under the Investment Company Act or to ensure the treatment of the Trust Preferred Securities as Tier 1 regulatory capital under the prevailing Federal Reserve rules and regulations; provided, however, that in the case of either clause (i) or (ii), such action shall not adversely affect in any material respect the interests of any Holder. Any such amendment shall become effective when notice is given to the Holders of the Trust Preferred Securities. (b) Except as provided in Section 12.2(c), any provision of this Trust Agreement may be amended by the Administrative Trustees, the Property Trustee, and the Holders of all of the Common Securities and with (i) the consent of Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that such amendment or the exercise of any power granted to the Trustees or the Administrative Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust or cause the Trust to be taxable as a corporation or as other than a grantor trust for United States Federal income tax purposes or affect the Trust's exemption from status as an "investment company" under the Investment Company Act. (c) In addition to and notwithstanding any other provision in this Trust Agreement, without the consent of each affected Holder (such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date, or (ii) restrict the right of a Holder to institute suit for the enforcement of any such payment on or after such date; and notwithstanding any other provision herein, without the unanimous consent of the Holders (such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of this Section 12.2 may not be amended. 63 (d) If any proposed amendment to the Trust Agreement provides for, or the Trustees otherwise propose to effect, (i) any action that would adversely affect in any material respect the powers, preferences or special rights of the Trust Preferred Securities, whether by way of amendment to the Trust Agreement or otherwise, or (ii) the dissolution and winding-up of the Trust, other than pursuant to the terms of this Trust Agreement, then the Holders of Outstanding Trust Preferred Securities as a class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities. Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result of such amendment, it would cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes. (e) Notwithstanding any other provisions of this Trust Agreement, no Trustee shall enter into or consent to any amendment to this Trust Agreement that would cause the Trust to fail or cease to qualify for the exemption from status as an "investment company" under the Investment Company Act or to be taxable as a corporation or to be classified as other than a grantor trust for United States Federal income tax purposes. (f) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Sponsor and the Administrative Trustees, this Trust Agreement may not be amended in a manner that imposes any additional obligation on the Sponsor or the Administrative Trustees. (g) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Property Trustee, this Trust Agreement may not be amended in a manner that imposes any additional obligation on, or adversely affects any rights, immunities or indemnities of, the Property Trustee. (h) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Delaware Trustee, this Trust Agreement may not be amended in a manner that imposes any additional obligation on, or adversely affects any rights, immunities or indemnities of, the Delaware Trustee. (i) In the event that any amendment to this Trust Agreement is made, the Administrative Trustees shall promptly provide to the Sponsor and the Property Trustee a copy of such amendment. (j) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into any amendment to this Trust Agreement that affects its own rights, duties or immunities under this Trust Agreement. The Property Trustee shall be entitled to receive an Opinion of Counsel and an Officers' Certificate stating that any amendment to this Trust Agreement is in compliance with this Trust Agreement. 64 SECTION 12.3. Separability. In case any provision in this Trust Agreement or in the Trust Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 12.4. Governing Law. This Trust Agreement and the rights and obligations of each of the Holders, the Trust, the Sponsor and the Trustees with respect to this Trust Agreement and the Trust Securities shall be construed in accordance with and governed by the laws of the State of Delaware without reference to its conflicts of laws provisions. SECTION 12.5. Payments Due on Non-Business Day. If the date fixed for any payment on any Trust Security shall be a day that is not a Business Day, then such payment need not be made on such date but may be made on the next succeeding day that is a Business Day, with the same force and effect as though made on the date fixed for such payment, and no Distributions shall accumulate on such unpaid amount for the period after such date. SECTION 12.6. Successors. This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to the Sponsor, the Trust and any Trustee, including any successor by operation of law. Except in connection with a consolidation, merger or sale involving the Sponsor that is permitted under Article X of the Base Indenture and pursuant to which the assignee agrees in writing to perform the Sponsor's obligations hereunder, the Sponsor shall not assign its obligations hereunder. SECTION 12.7. Headings. The Article and Section headings are for convenience only and shall not affect the construction of this Trust Agreement. SECTION 12.8. Reports, Notices and Demands. Any report, notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Holder, the Sponsor or the Sponsor may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in the case of a Holder of Trust Preferred Securities, to such Holder as such Holder's name and address may appear on the Securities Register and (b) in the case of the Holder of the Common Securities or the Sponsor, to MetLife, Inc., 27-01 Queens Plaza North, Long Island City, New York 11101, facsimile 212-578-0266, Attention: Treasurer, or to such other address as may be specified in a written notice by the Sponsor to the Property Trustee. Such notice, demand or 65 other communication to or upon a Holder shall be deemed to have been sufficiently given or made, for all purposes, upon hand delivery, mailing or transmission. Such notice, demand or other communication to or upon the Sponsor or the Holder of the Common Securities shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Sponsor or the Holder of the Common Securities, as the case may be. Any notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Trust, the Property Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall be given in writing addressed to such Person as follows: (a) with respect to the Property Trustee, to J.P. Morgan Trust Company, National Association, Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, New York 10004, Attention: Worldwide Securities Services, Telephone: (212) 623-5233, Facsimile: (212) 623-6215; (b) with respect to the Delaware Trustee, to Chase Bank USA, National Association, c/o JPMorgan Chase Bank, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, DE 19713, Attention: Worldwide Securities Services; (c) with respect to the Administrative Trustees, to them at c/o Chase Bank USA, National Association, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, Delaware 19713, Attention: Institutional Trust Services, facsimile: (302) 552-6280; and (d) with respect to the Trust, to its principal office specified in Section 2.2, with a copy to the Property Trustee. Such notice, demand or other communication to or upon the Trust, the Delaware Trustee, the Property Trustee or the Administrative Trustees shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Trust, the Property Trustee or such Administrative Trustee. SECTION 12.9. Agreement Not to Petition. Each of the Trustees and the Sponsor agree for the benefit of the Holders that, until at least one year and one day after the Trust has been dissolved in accordance with Article IX, they shall not file, or join in the filing of, a petition against the Trust under any bankruptcy, insolvency, reorganization or other similar law (including the United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of any proceeding against the Trust under any Bankruptcy Law. If the Sponsor takes action in violation of this Section 12.9, the Property Trustee agrees, for the benefit of Holders, that at the expense of the Sponsor, it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such petition by the Sponsor against the Trust or the commencement of such action and raise the defense that the Sponsor has agreed in writing not to take such action and should be stopped and precluded therefrom and such other defenses, if any, as counsel for the Trustee or the Trust may assert. SECTION 12.10. Trust Indenture Act; Conflict with Trust Indenture Act. (a) Except as otherwise expressly provided herein, the Trust Indenture Act shall apply as a matter of contract to this Trust Agreement for purposes of interpretation, construction and defining the rights and obligations hereunder, and this Trust Agreement, the Sponsor and the Property Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Trust Agreement were qualified under that Act on the date hereof. Except as otherwise expressly provided herein, if and to the extent that any provision of this Trust Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. 66 (b) The Property Trustee shall be the only Trustee that is a trustee for the purposes of the Trust Indenture Act. (c) The application of the Trust Indenture Act to this Trust Agreement shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial interests in the assets of the Trust. SECTION 12.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS. SECTION 12.12. Counterparts. This Trust Agreement may contain more than one counterpart of the signature page and this Trust Agreement may be executed by the affixing of the signature of each of the parties to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 67 IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Declaration of Trust. METLIFE, INC., as Sponsor By: __________________________________ Name: Title: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: __________________________________ Name: Title: CHASE BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee By: __________________________________ Name: Title: ANTHONY J. WILLIAMSON as Administrative Trustee By: __________________________________ Name: Title: PHILIP SALMON, as Administrative Trustee By: __________________________________ Name: Title: 68 THOMAS CURRAN, as Administrative Trustee By: __________________________________ Name: Title: 69 STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the________________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the________________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: 70 (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the________________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the________________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: 71 (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the________________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the________________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) 72 CERTIFICATE OF AMENDMENT TO CERTIFICATE OF TRUST OF METLIFE CAPITAL TRUST II THIS Certificate of Amendment of Certificate of Trust of MetLife Capital Trust II (the "Trust"), is being duly executed and filed by the undersigned trustee to amend the Certificate of Trust of the Trust, dated May 17, 2001 (the "Certificate of Trust"), pursuant to the Delaware Statutory Trust Act (12 Del. C. Sections 3801, et seq.) (the "Act"). 1. Name. The name of the statutory trust is MetLife Capital Trust II. 2. Amendment to Certificate of Trust. The Certificate of Trust is hereby amended by amending and restating Section 2 thereof in its entirety as follows: "2. Delaware Trustee. The name and business address of the trustee of the Trust with a principal place of business in the State of Delaware is: Chase Manhattan Bank USA, National Association 500 Stanton Christiana Road OPS4/3rd Floor Newark, Delaware 19713 Attn: Institutional Trust Services" 3. Effective Date. This Certificate of Amendment shall be effective upon filing. IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed this Certificate of Amendment in accordance with Section 3811 (a)(2) of the Act. CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee By: /s/ John J. Cashin ------------------------------------------------- Name: JOHN J. CASHIN Title: VICE-PRESIDENT A-1 Leland C. Launer, Jr., as Administrative Trustee By: /s/ Leland C. Launer, Jr. ------------------------------------- Name: Leland C. Launer, Jr. Ronald D. Nirenberg, Jr., as Administrative Trustee By: /s/ Ronald D. Nirenberg, Jr. ------------------------------------- Ronald D. Nirenberg, Jr. William H. Nugent, as Administrative Trustee By: /s/ William H. Nugent ------------------------------------- William H. Nugent A-2 EXHIBIT B [FORM OF COMMON SECURITIES CERTIFICATE] THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.10 OF THE TRUST AGREEMENT Certificate Number _______________ Number of Common Securities _________ Certificate Evidencing Common Securities of MetLife Capital Trust II 6.375% Common Securities (Initial Liquidation Amount $1,000 per Common Security) MetLife Capital Trust II, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that ________________ (the "Holder") is the registered owner of _________________ (___________) Common Securities of the Trust representing undivided common beneficial interests in the assets of the Trust and designated the 6.375% Common Securities (Initial Liquidation Amount $1,000 per Common Security) (the "Common Securities"). Except in accordance with the Trust Agreement (as defined below), the Common Securities are not transferable and, to the fullest extent permitted by law, any attempted transfer hereof other than in accordance therewith shall be void. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities are set forth in, and this certificate and the Common Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Declaration of Trust of the Trust, dated as of June 21, 2005, as the same may be amended from time to time (the "Trust Agreement"), among MetLife, Inc., as Sponsor, J.P. Morgan Trust Company, National Association, as Property Trustee, Chase Bank USA, National Association, as Delaware Trustee, the Administrative Trustees named therein, and the Holders of Trust Securities, including the designation of the terms of the Common Securities as set forth therein. The Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. Terms used but not defined herein have the meanings set forth in the Trust Agreement. B-1 IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed this certificate this _______ day of ____________, 20__. METLIFE CAPITAL TRUST II By: _____________________________________ Name: Title: Administrative Trustee B-2 PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Common Securities referred to in the above mentioned Trust Agreement. Dated: _______________ _________________________________________ As Property Trustee By: _____________________________________ Name: Title: Administrative Trustee B-3 EXHIBIT C [FORM OF TRUST PREFERRED SECURITIES CERTIFICATE] [This Trust Preferred Securities Certificate is a Book-Entry Trust Preferred Securities Certificate within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of a Clearing Agency or a nominee of a Clearing Agency. This Trust Preferred Securities Certificate is exchangeable for Trust Preferred Securities Certificates registered in the name of a person other than the Clearing Agency or its nominee only in the limited circumstances described in the Trust Agreement and may not be transferred except as a whole by the Clearing Agency to a nominee of the Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or another nominee of the Clearing Agency, except in the limited circumstances described in the Trust Agreement. Unless this Trust Preferred Securities Certificate is presented by an authorized representative of The Depository Trust Company, a New York Corporation ("DTC"), to MetLife Capital Trust II or its agent for registration of transfer, exchange or payment, and any Trust Preferred Securities Certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]1 NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH ACQUISITION OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER ERISA SECTION 406 OR CODE SECTION 4975, OR SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING AND, IN THE CASE OF ANY PURCHASER OR HOLDER RELYING ON ANY EXEMPTION OTHER THAN PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR U.S. DEPARTMENT OF LABOR REGULATION SECTION 2550.401c-1, HAS COMPLIED WITH ANY REQUEST BY THE SPONSOR OR THE TRUST FOR AN OPINION OF COUNSEL OR OTHER EVIDENCE WITH RESPECT TO THE AVAILABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT (A) IT IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, (B) ITS C-1 PURCHASE AND HOLDING OF SUCH SECURITIES WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER ERISA SECTION 406 OR CODE SECTION 4975, OR (C) IT IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING. - ------------------------------ (1) Insert on Global Certificates only. C-2 Certificate Number __________ Number of Trust Preferred Securities_______ CUSIP NO. [-] Certificate Evidencing Series A Trust Preferred Securities of MetLife Capital Trust II 4.82% Series A Trust Preferred Securities (Initial Liquidation Amount $1,000 per Trust Preferred Securities) MetLife Capital Trust II, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that (the "Holder") is the registered owner of ________________ Trust Preferred Securities of the Trust representing an undivided preferred beneficial interest in the assets of the Trust and designated the MetLife Capital Trust II 4.82% Series A Trust Preferred Securities (Initial Liquidation Amount $1,000 per Trust Preferred Securities) (the "Trust Preferred Securities"). The Trust Preferred Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Trust Preferred Securities are set forth in, and this certificate and the Trust Preferred Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Declaration of Trust of the Trust, dated as of June 21, 2005, as the same may be amended from time to time (the "Trust Agreement"), among MetLife, Inc., as Sponsor, J.P. Morgan Trust Company, National Association, as Property Trustee, Chase Bank USA, National Association, as Delaware Trustee, the Administrative Trustees named therein, and the Holders of Trust Securities, including the designation of the terms of the Trust Preferred Securities as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement, dated as of June 21, 2005, as the same may be amended from time to time (the "Guarantee Agreement"), by and between MetLife, Inc., as Guarantor, and J.P. Morgan Trust Company, National Association, as Guarantee Trustee, to the extent provided therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed this certificate this day of METLIFE CAPITAL TRUST II By: _____________________________________ Name: Title: Administrative Trustee C-3 PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Capital Securities referred to in the above mentioned Trust Agreement. Dated: _______________ _________________________________________ As Property Trustee By: _____________________________________ Name: Title: Administrative Trustee C-4 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred Security to: ________________ (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints ____________________ agent to transfer this Trust Preferred Securities Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: Signature: _____________________________ (Sign exactly as your name appears on the other side of this Trust Preferred Securities Certificate) The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. C-5 EX-4.17 7 y10123exv4w17.txt FORM OF AMENDED AND RESTATED DECLARATION OF TRUST Exhibit 4.17 - -------------------------------------------------------------------------------- AMENDED AND RESTATED DECLARATION OF TRUST OF METLIFE CAPITAL TRUST III among METLIFE, INC., as Sponsor, J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee, CHASE BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee, the Administrative Trustees (as named herein), and the several Holders of the Trust Securities Dated as of June 21, 2005 - -------------------------------------------------------------------------------- METLIFE, INC. Reconciliation and tie between Trust Indenture Act of 1939 and Amended and Restated Declaration of Trust dated as of June 21, 2005
TRUST INDENTURE ACT SECTION TRUST AGREEMENT SECTION - -------------------- ----------------------- Section 310(a)(1) 8.7 (a)(2) 8.7 (a)(3) 8.9 (a)(4) 2.7 (a)(ii) (b) 8.8 (c) Not applicable Section 311(a) 8.13 (b) 8.13 Section 312(a) 12.10 (b) 12.10 (c) 5.7 Section 313(a) 8.15(a), 8.15(b) (b) 8.15(b) (c) 12.8 (d) 8.15(c) Section 314(a) 8.16 (b) Not applicable (c)(1) 8.17 (c)(2) 8.17 (c)(3) Not applicable (d) Not applicable (e) 1.1, "Officers' Certificates," 8.17 Section 315(a) 8.1(d), (e), 8.3(a) (b) 8.2,12.8 (c) 8.1(c) (d) 8.1, 8.3 (e) 12.10 Section 316(a) Not applicable (a)(1)(A) Not applicable (a)(1)(B) 5.14 (a)(2) Not applicable (b) 5.14 (c) 6.7 Section 317(a)(1) 12.10 (a)(2) 12.10 (b) 5.9, 12.10 Section 318(a) 12.10 (b) 12.10 (c) 12.10
Note: This reconciliation and tie shall not, for any purpose be deemed to be part of the Amended and Restated Declaration of Trust. i TABLE OF CONTENTS
PAGE ARTICLE I DEFINED TERMS...................................................................... 1 Section 1.1. Definitions................................................................... 1 ARTICLE II CONTINUATION OF THE TRUST.............................................................. 13 Section 2.1. Name.......................................................................... 13 Section 2.2. Office of the Delaware Trustee; Principal Place of Business................... 13 Section 2.3. Initial Contribution of Trust Property; Organizational Expenses............... 13 Section 2.4. Issuance of the Trust Preferred Securities.................................... 13 Section 2.5. Issuance of the Common Securities; Subscription and Purchase Debentures....... 13 Section 2.6. Trust Agreement............................................................... 14 Section 2.7. Authorization to Enter into Certain Transactions.............................. 14 Section 2.8. Assets of Trust............................................................... 18 Section 2.9. Title to Trust Property....................................................... 18 ARTICLE III PAYMENT ACCOUNT........................................................................ 18 Section 3.1. Payment Account............................................................... 18 ARTICLE IV DISTRIBUTIONS; REDEMPTION.............................................................. 19 Section 4.1. Distributions................................................................. 19 Section 4.2. Redemption.................................................................... 20 Section 4.3. Subordination of Common Securities............................................ 22 Section 4.4. Payment Procedures............................................................ 23 Section 4.5. Tax Returns and Reports....................................................... 23 Section 4.6. Payment of Expenses of the Trust.............................................. 23 Section 4.7. Payments under Indenture or Pursuant to Direct Actions........................ 24 ARTICLE V TRUST SECURITIES CERTIFICATES.......................................................... 24 Section 5.1. Initial Ownership............................................................. 24 Section 5.2. The Trust Securities Certificates............................................. 24 Section 5.3. Execution, Authentication and Delivery of Trust Securities Certificates....... 24 Section 5.4. Registration of Transfer and Exchange of Trust Preferred Securities Certificates.................................................................. 25 Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............ 26 Section 5.6. Persons Deemed Holders........................................................ 26 Section 5.7. Access to List of Holders' Names and Addresses................................ 26 Section 5.8. Maintenance of Office Agency.................................................. 26 Section 5.9. Appointment of Paying Agent................................................... 27 Section 5.10. Ownership of Common Securities by Sponsor..................................... 27
ii TABLE OF CONTENTS (continued)
PAGE Section 5.11. Book-Entry Trust Preferred Securities Certificates; Common Securities Certificate................................................................... 27 Section 5.12. Notices to Clearing Agency.................................................... 28 Section 5.13. Definitive Trust Preferred Securities Certificates............................ 28 Section 5.14. Rights of Holders; Waivers of Past Defaults................................... 29 Section 5.15. CUSIP Numbers................................................................. 31 Section 5.16. Cancellation.................................................................. 32 ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING...................................................... 32 Section 6.1. Limitations on Voting Rights.................................................. 32 Section 6.2. Notice of Meetings............................................................ 33 Section 6.3. Meetings of Holders of the Trust Preferred Securities......................... 33 Section 6.4. Voting Rights................................................................. 33 Section 6.5. Proxies....................................................................... 33 Section 6.6. Holder Action by Written Consent.............................................. 34 Section 6.7. Record Date for Voting and Other Purposes..................................... 34 Section 6.8. Acts of Holders............................................................... 34 Section 6.9. Inspection of Records......................................................... 35 Section 6.10. Action With Respect to the Debenture.......................................... 35 ARTICLE VII REPRESENTATIONS AND WARRANTIES......................................................... 36 Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee....................................................................... 36 Section 7.2. Representations and Warranties of Sponsor..................................... 37 ARTICLE VIII THE TRUSTEES........................................................................... 37 Section 8.1. Certain Duties and Responsibilities........................................... 37 Section 8.2. Certain Notices............................................................... 40 Section 8.3. Certain Rights of Property Trustee............................................ 40 Section 8.4. Not Responsible for Recitals or Issuance of Securities........................ 42 Section 8.5. May Hold Securities........................................................... 42 Section 8.6. Compensation; Indemnity; Fees................................................. 43 Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrative Trustees....................................................... 44 Section 8.8. Conflicting Interests......................................................... 44 Section 8.9. Co-Trustees and Separate Trustee.............................................. 44 Section 8.10. Resignation and Removal; Appointment of Successor............................. 46 Section 8.11. Acceptance of Appointment by Successor........................................ 47 Section 8.12. Merger, Conversion, Consolidation or Succession to Business................... 48 Section 8.13. Preferential Collection of Claims Against Sponsor or Trust.................... 48 Section 8.14. Trustee May File Proofs of Claim.............................................. 48 Section 8.15. Reports by Property Trustee................................................... 49
iii TABLE OF CONTENTS (continued)
PAGE Section 8.16. Reports to the Property Trustee............................................... 50 Section 8.17. Evidence of Compliance with Conditions Precedent.............................. 50 Section 8.18. Number of Trustees............................................................ 50 Section 8.19. Delegation of Power........................................................... 50 Section 8.20. Trust Liabilities............................................................. 51 ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER.................................................... 51 Section 9.1. Dissolution Upon Expiration Date.............................................. 51 Section 9.2. Early Dissolution............................................................. 51 Section 9.3. Dissolution................................................................... 51 Section 9.4. Liquidation................................................................... 52 Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust............... 53 ARTICLE X REMARKETING AND RESET RATE MECHANICS................................................... 54 Section 10.1. Obligation to Conduct Remarketing and Related Requirements.................... 54 Section 10.2. Sponsor Decisions in Connection With Remarketing.............................. 55 Section 10.3. Reset of Distribution Rate in Connection with Remarketings and Related Changes in Terms.............................................................. 57 Section 10.4. Remarketing Procedures........................................................ 59 Section 10.5. Put Right..................................................................... 61 Section 10.6. Common Securities............................................................. 62 ARTICLE XI OTHER COMMON EQUITY UNIT RELATED PROVISIONS............................................ 62 Section 11.1. Tax Treatment................................................................. 62 ARTICLE XII MISCELLANEOUS PROVISIONS............................................................... 62 Section 12.1. Limitation of Rights of Holders............................................... 62 Section 12.2. Amendment..................................................................... 63 Section 12.3. Separability.................................................................. 65 Section 12.4. Governing Law................................................................. 65 Section 12.5. Payments Due on Non-Business Day.............................................. 65 Section 12.6. Successors.................................................................... 65 Section 12.7. Headings...................................................................... 65 Section 12.8. Reports, Notices and Demands.................................................. 65 Section 12.9. Agreement Not to Petition..................................................... 66 Section 12.10. Trust Indenture Act; Conflict with Trust Indenture Act........................ 66 Section 12.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture..... 67 Section 12.12. Counterparts.................................................................. 67
iv EXHIBITS: Exhibit A - Certificate of Amendment to Certificate of Trust Exhibit B - Form of Common Securities Certificate Exhibit C - Form of Trust Preferred Securities Certificate v AMENDED AND RESTATED DECLARATION OF TRUST (the "Trust Agreement"), dated as of June 21, 2005 among (i) MetLife, Inc., a Delaware corporation (including any successors or assigns, the "Sponsor"), (ii) J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as property trustee (in such capacity, the "Property Trustee"), (iii) Chase Bank USA, National Association, a national banking association, as Delaware trustee (in such capacity, the "Delaware Trustee"), and (iv) Anthony J. Williamson, an individual, Philip Salmon, an individual and Thomas Curran, an individual, each of whose address is c/o MetLife, Inc., 27-01 Queens Plaza North, Long Island City, New York 11101 (each, an "Administrative Trustee," and collectively, the "Administrative Trustees") (the Property Trustee, the Delaware Trustee, and the Administrative Trustees being referred to collectively as the "Trustees"), and (v) the several Holders, as hereinafter defined. WITNESSETH WHEREAS, the Sponsor and certain of the Trustees have heretofore duly declared and established a statutory trust (the "Trust") pursuant to the Delaware Statutory Trust Act (as hereinafter defined) by entering into that certain Declaration of Trust, dated as of May 17, 2001 (the "Original Declaration of Trust"), and by the execution and filing with the Secretary of State of the State of Delaware the Certificate of Trust, filed on May 17, 2001, as amended, attached as Exhibit A hereto (the "Certificate of Trust"); WHEREAS, certain of the Trustees of the Trust were removed and new trustees were appointed pursuant to that certain Removal and Appointment of Trustees of the Trust, dated as of January 16, 2004; WHEREAS, certain of the Trustees of the Trust were removed and appointed pursuant to that certain Removal and Appointment of Trustees of the Trust, dated as of June 15, 2005; and WHEREAS, the Sponsor and the Trustees desire to amend and restate the Original Declaration of Trust in its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common Securities by the Trust to the Sponsor, (ii) the issuance of the Trust Preferred Securities by the Trust as a component of Normal Common Equity Units and their issuance and sale pursuant to the Underwriting Agreement, and (iii) the acquisition by the Trust from the Sponsor of all of the right, title and interest in the Debentures; NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Original Declaration of Trust in its entirety and agrees as follows: ARTICLE I DEFINED TERMS SECTION 1.1 Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: 1 The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular; All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; All accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; Unless the context otherwise requires, any reference to an "Article," a "Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the case may be, of or to this Trust Agreement; and The words "hereby," "herein," "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision. "Accreted Liquidation Amount" means per Trust Security (i) through the Reset Date, $1,000 (which is also the Initial Liquidation Amount per Trust Security) and (ii) thereafter, an amount equal to the Accreted Principal Amount of a Like Amount of Debentures as determined pursuant to the Indenture (changing as and when such Accreted Principal Amount shall change). "Accreted Principal Amount" has the meaning specified in the Supplemental Indenture. "Act" has the meaning specified in Section 6.8. "Additional Amount" means, with respect to Trust Securities of a given Initial Liquidation Amount and/or a given period, the amount of Additional Interest (as defined in the Indenture) paid by the Sponsor on a Like Amount of Debentures for such period. "Additional Interest" has the meaning specified in the Supplemental Indenture. "Administrative Trustee" means each of the individuals identified as an "Administrative Trustee" in the preamble to this Trust Agreement solely in such individual's capacity as Administrative Trustee of the Trust and not in such individual's individual capacity, or such Administrative Trustee's successor in interest in such capacity, or any successor trustee appointed as herein provided. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. 2 "Agreement as to Expenses and Liabilities" means the Agreement as to Expenses and Liabilities, dated as of June 21, 2005 between the Trust and the Sponsor. "Authorized Officer" of any Person means any executive officer of such Person or any Person authorized by or pursuant to a resolution of the Board of Directors of such Person. "Bankruptcy Event" means, with respect to any Person: (a) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (b) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of any such action. "Bankruptcy Laws" has the meaning specified in Section 12.9. "Base Indenture" means the Indenture, dated as of June 21, 2005, between the Sponsor and the Debenture Trustee. "Board of Directors" of any Person means the board of directors (or equivalent body) of such Person, or, in the case of a limited liability company issuer of Debentures, the sole member, or a committee designated by the board of directors (or equivalent body) of such Person (or any such committee), comprised of one or more members of the board of directors (or equivalent body) of such Person or officers of such Person, or both. "Book-Entry Trust Preferred Securities" means Trust Preferred Securities, the ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.11. "Book-Entry Trust Preferred Securities Certificate" means a Trust Preferred Securities Certificate evidencing ownership of Book-Entry Trust Preferred Securities. 3 "Business Day" means any day other than a Saturday, Sunday, or any other day on which banking institutions and trust companies in New York City are permitted or required by any applicable law to close. "Certificate of Trust" has the meaning specified in the recitals hereof, as amended from time to time. "Certificate Depository Agreement" means the agreement among the Trust, the Paying Agent and DTC, as the initial Clearing Agency, dated as of the Closing Date. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing Agency. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" means the "Closing Date" under the Underwriting Agreement. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this Trust Agreement such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Equity Unit" has the meaning specified in the Stock Purchase Contract Agreement. "Common Securities Certificate" means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit B. "Common Security" means an undivided beneficial interest in the assets of the Trust, having an Initial Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. "Common Stock" has the meaning specified in the Stock Purchase Contract Agreement. "Corporate Trust Office" means (i) when used with respect to the Property Trustee, the office of the Property Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the date hereof is located at Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, New York 10004, and (ii) when used with respect to the Debenture Trustee, the office of the Debenture Trustee located at Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, New York 10004. 4 "Debenture Event of Default" means any "Event of Default" specified in Section 6.1 of the Supplemental Indenture. "Debenture Redemption Date" means, with respect to any Debentures to be redeemed under the Indenture, the date fixed for redemption of such Debentures under the Indenture. "Debentures" means the $927.8 million initial aggregate principal amount of the Sponsor's Series B junior subordinated debt securities, due 2040 issued pursuant to the Indenture (which amount may be increased to $1,067.0 million in connection with the exercise under the Underwriting Agreement by the underwriters named therein of their option to buy additional Common Equity Units). "Debenture Stated Date" means February 15, 2040, unless such date is changed to an earlier date pursuant to Article X. "Debenture Trustee" means J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as trustee under the Indenture, or its successor in interest in such capacity, or any successor trustee appointed as provided in the Indenture. "Deferral Period" has the meaning specified in the Indenture. "Definitive Trust Preferred Securities Certificates" means either or both (as the context requires) of (i) Trust Preferred Securities Certificates issued as Book-Entry Trust Preferred Securities Certificates as provided in Section 5.11, and (ii) Trust Preferred Securities Certificates issued in certificated, fully registered form as provided in Section 5.13. "Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq., as it may be amended from time to time. "Delaware Trustee" means the Person identified as the "Delaware Trustee" in the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware trustee appointed as herein provided. "Distribution Date" has the meaning specified in Section 4.1(a)(iii). "Distribution Period" means each period of time beginning on a Distribution Date (or the Closing Date in the case of the initial Distribution Period) and continuing to but not including the next succeeding Distribution Date. "Distribution Rate" means (i) from the Closing Date to but not including the earlier of (A) the Reset Date and (B) the Scheduled Redemption Date, 4.91% per annum and (ii) for each Distribution Period commencing on or after the Reset Date, the Reset Rate as determined in accordance with Article X. "Distributions" means amounts payable in respect of the Trust Securities as provided in Section 4.1. 5 "DTC" means The Depository Trust Company. "Early Dissolution Event" has the meaning specified in Section 9.2. "Event of Default" means any one of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) the occurrence of a Debenture Event of Default; or (b) default by the Trust in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or (c) default by the Trust in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or (d) default in the performance, or breach, in any material respect, of any covenant or warranty of the Trustees in this Trust Agreement (other than those specified in clause (b) or (c) above) and continuation of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Trustees and to the Sponsor by the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Trust Preferred Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) the occurrence of a Bankruptcy Event with respect to the Property Trustee if a successor Property Trustee has not been appointed within 90 days thereof. "Excess Proceeds Remarketing Amount" means, in connection with a Remarketing, for each Trust Preferred Security being remarketed an amount equal to the amount, if any, by which the proceeds of the Remarketing, net of the Remarketing Agent's Fee, exceed the Par Proceeds Remarketing Amount. "Exchange Act" means the Securities Exchange Act of 1934, and any successor statute thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 9.1. "Failed Remarketing" means a Remarketing that is not Successful. "Federal Reserve" means the Board of Governors of the Federal Reserve System, as from time to time constituted, or if at any time after the execution of this Trust Agreement the Federal Reserve is not existing and performing the duties now assigned to it, then the body performing such duties at such time. "Final Failed Remarketing" means the Remarketing on the Third Remarketing Settlement Date in respect of the Series B Trust Preferred Securities, if such Remarketing is a Failed Remarketing. 6 "Guarantee" means the Guarantee Agreement executed and delivered by the Sponsor and J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as guarantee trustee, contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the holders of the Trust Preferred Securities, as amended from time to time. "Holder" means a Person in whose name a Trust Security or Trust Securities are registered in the Securities Register; any such Person shall be deemed to be a beneficial owner within the meaning of the Delaware Statutory Trust Act. "Indenture" means the Base Indenture and the Supplemental Indenture, taken together. "Initial Liquidation Amount" means the stated amount of $1,000 per Trust Security. "Investment Company Act" means the Investment Company Act of 1940, or any successor statute thereto, in each case as amended from time to time. "Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever. "Like Amount" means (a) with respect to a redemption of any Trust Securities, Trust Securities having an Accreted Liquidation Amount equal to the Accreted Principal Amount of Debentures to be contemporaneously redeemed in accordance with the Indenture, the proceeds of which will be used to pay the Redemption Price of such Trust Securities, (b) with respect to a distribution of Debentures to Holders of Trust Securities in connection with a dissolution or liquidation of the Trust, Debentures having an Accreted Principal Amount equal to the Accreted Liquidation Amount of the Trust Securities of the Holder to whom such Debentures are distributed, and (c) with respect to any distribution of Additional Amounts to Holders of Trust Securities, Debentures having an Accreted Principal Amount equal to the Accreted Liquidation Amount of the Trust Securities in respect of which such distribution is made. "Liquidation Date" means the date of the dissolution, winding-up or dissolution of the Trust pursuant to Section 9.4. "Liquidation Distribution" has the meaning specified in Section 9.4(d). "Majority in Accreted Liquidation Amount of the Trust Preferred Securities" or "Majority in Accreted Liquidation Amount of the Common Securities" means, except as provided by the Trust Indenture Act, Trust Preferred Securities or Common Securities, as the case may be, representing more than 50% of the aggregate Accreted Liquidation Amount of all then Outstanding Trust Preferred Securities or Common Securities, as the case may be. "Normal Common Equity Unit" has the meaning specified in the Stock Purchase Contract Agreement. "Normal Common Equity Unit Certificate" has the meaning specified in the Stock Purchase Contract Agreement. 7 "Officers' Certificate" means, with respect to any Person, a certificate signed by any two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include: (a) a statement by each officer signing the Officers' Certificate that such officer has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers' Certificate; (c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Sponsor or any Affiliate of the Sponsor, who shall be reasonably satisfactory to the Relevant Trustee. "Original Declaration of Trust" has the meaning specified in the recitals to this Trust Agreement. "Outstanding," when used with respect to Trust Securities, means, as of the date of determination, all Trust Securities theretofore executed and delivered under this Trust Agreement, except: (a) Trust Securities theretofore canceled by the Property Trustee or delivered to the Property Trustee for cancellation; (b) Trust Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent; provided that, if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and (c) Trust Securities that have been paid or in exchange for or in lieu of which other Trust Preferred Securities have been executed and delivered pursuant to Sections 5.4, 5.5 and 5.11; provided, however, that in determining whether the Holders of the requisite Accreted Liquidation Amount of the Outstanding Trust Preferred Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Trust Preferred Securities owned by the Sponsor, any Trustee, or any Affiliate of the Sponsor or any Trustee shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Trust Preferred Securities that such Trustee actually knows to be so owned shall be so disregarded, and (b) the foregoing shall not apply at any time when all of the outstanding Trust Preferred Securities are owned by the Sponsor, one or more of the Trustees, and/or any such Affiliate. Trust Preferred Securities so owned that have been pledged 8 in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrative Trustees the pledgee's right so to act with respect to such Trust Preferred Securities and that the pledgee is not the Sponsor or any Affiliate of the Sponsor. Notwithstanding the foregoing, Trust Preferred Securities that are a component of Normal Common Equity Units and pledged pursuant to the Pledge Agreement shall not be deemed to be not Outstanding only by reason of such pledge. "Owner" means each Person who is the beneficial owner of Book-Entry Trust Preferred Securities as reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly or indirectly, in accordance with the rules of such Clearing Agency). "Par Proceeds Remarketing Amount" means, in connection with a Remarketing, an amount for each Trust Preferred Securities being remarketed equal to 100% of its Accreted Liquidation Amount. "Paying Agent" means any paying agent or co-paying agent appointed pursuant to Section 5.9 and shall initially be J.P. Morgan Trust Company, National Association. "Payment Account" means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee (in its corporate capacity and not as Property Trustee) in its trust department for the benefit of the Holders in which all amounts paid in respect of the Debentures will be held and from which the Property Trustee, through the Paying Agent, shall make payments to the Holders in accordance with Sections 4.1 and 4.2. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Pledge Agreement" means the Pledge Agreement, dated as of the date hereof, among the Sponsor, JPMorgan Chase Bank, National Association, as Collateral Agent, Custodial Agent and Securities Intermediary, and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent and attorney-in-fact for the Holders (as defined in the Stock Purchase Contract Agreement) of the Stock Purchase Contracts, as amended or supplemented from time to time. "Property Trustee" means the Person identified as the "Property Trustee" in the preamble to this Trust Agreement, solely in its capacity as Property Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as herein provided. "Put Consideration" has the meaning specified in Section 10.5(a). "Put Right" has the meaning specified in Section 10.05(a). "Redemption Date" means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided that each Debenture 9 Redemption Date and the stated maturity of the Debentures shall be a Redemption Date for a Like Amount of Trust Securities. "Redemption Price" means, with respect to any Trust Security, the Accreted Liquidation Amount of such Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the related amount of the premium, if any, paid by the Sponsor upon the concurrent redemption of a Like Amount of Debentures. "Relevant Trustee" shall have the meaning specified in Section 8.10. "Remarketing" means a remarketing of Trust Preferred Securities pursuant to Article X and the related Remarketing Agreement. "Remarketing Agent" means, as to a Remarketing and related Remarketing Agreement, the remarketing agent and any successor or replacement remarketing agent appointed by the Sponsor and the Trust pursuant to Section 10.1. "Remarketing Agent's Fee" means, as to the Remarketing Agent and a Remarketing, the fee provided for in the related Remarketing Agreement. "Remarketing Agreement" means, with respect to a Remarketing, the remarketing agreement entered into among the Sponsor, the Trust and the Remarketing Agent pursuant to Section 10.1 with respect to such Remarketing of Trust Preferred Securities. "Remarketing Date" means, as to a Remarketing Settlement Date, the third Business Day immediately preceding such Remarketing Settlement Date. "Remarketing Purchase Date" means a Reset Date on which the Trust is required to purchase the Trust Preferred Securities, subject to and in accordance with Section 10.5. "Remarketing Settlement Date" means each of the First Remarketing Settlement Date, the Second Remarketing Settlement Date, the Third Remarketing Settlement Date in respect to the Series B Trust Preferred Securities as specified in the Stock Purchase Contract Agreement. "Reset Cap", as of any Remarketing Settlement Date, means the prevailing market yield, as determined by the Remarketing Agent, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from such date until the Scheduled Redemption Date (after giving effect to any change in the Scheduled Redemption Date being made pursuant to Article X on the Remarketing Settlement Date if the Remarketing is Successful), plus 350 basis points per annum. "Reset Date" means the first date that is a Remarketing Settlement Date on which a Successful Remarketing occurs. "Reset Rate" has the meaning set forth in Section 10.3(a). "Responsible Officer" means, with respect to any Trustee, the President, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary, any Assistant 10 Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust Officer of such Trustee or any other officer of such Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of or familiarity with the particular subject. "Scheduled Redemption Date" means August 15, 2040 or, if such date is changed to an earlier date in accordance with Article X, such earlier date. "Securities Act" means the Securities Act of 1933, and any successor statute thereto, in each case as amended from time to time. "Securities Intermediary" has the meaning specified in the Stock Purchase Agreement. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 5.4. "Separate Trust Preferred Securities" means Trust Preferred Securities that are no longer a component of Normal Common Equity Units. "Sponsor" has the meaning specified in the preamble to this Trust Agreement. "Stock Purchase Contract" has the meaning specified in the Stock Purchase Contract Agreement. "Stock Purchase Contract Agent" means J.P. Morgan Trust Company, National Association, not in its individual capacity but solely as stock purchase contract agent and any successor thereto as stock purchase contract agent, under the Stock Purchase Contract Agreement. "Stock Purchase Contract Agreement" means the Stock Purchase Contract Agreement, dated as of the date hereof, between the Sponsor and the Stock Purchase Contract Agent, as amended or supplemented from time to time. "Stock Purchase Date" has the meaning specified in the Stock Purchase Contract Agreement. "Stripped Common Equity Unit" has the meaning specified in the Stock Purchase Contract Agreement. "Successful" means, as to a Remarketing, that the Remarketing is conducted in accordance with Article X and the Remarketing Agent finds buyers for all of the Trust Preferred Securities offered in the Remarketing by 4:00 P.M., New York City time, on the Remarketing Date. "Supplemental Indenture" means the Second Supplemental Indenture to the Base Indenture, dated as of June 21, 2005, between the Sponsor and the Debenture Trustee. 11 "Time of Delivery" means June 21, 2005. "Trust" means the Delaware statutory trust known as "MetLife Capital Trust III" which was created under the Delaware Statutory Trust Act pursuant to the Original Declaration of Trust and the filing of the Certificate of Trust, and continued pursuant to this Trust Agreement. "Trust Agreement" means this Amended and Restated Declaration of Trust, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including (i) all exhibits, and (ii) for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively. "Trustees" means, collectively, the Property Trustee, the Delaware Trustee, and the Administrative Trustees. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Trust Agreement was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended. "Trust Preferred Securities" means the series of securities known as the "Series B Trust Preferred Securities" of the Trust. "Trust Preferred Securities Certificate" means a certificate evidencing ownership of Trust Preferred Securities, substantially in the form attached as Exhibit C. "Trust Property" means (a) the Debentures, (b) any cash on deposit in, or owing to, the Payment Account, and (c) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Property Trustee pursuant to the trusts of this Trust Agreement. "Trust Security" means any one of the Common Securities or the Trust Preferred Securities. "Trust Securities Certificate" means any one of the Common Securities Certificates or the Trust Preferred Securities Certificates. "Underwriting Agreement" means the Underwriting Agreement dated June 15, 2005, among the Company, the Trust, MetLife Capital Trust II and certain underwriters specified therein, including the Pricing Agreement dated June 15, 2005 entered into in connection therewith. "Vice President," when used with respect to the Sponsor, means any duly appointed vice president, whether or not designated by a number or a word or words added before or after the title "vice president." 12 ARTICLE II CONTINUATION OF THE TRUST SECTION 2.1. Name. The trust continued hereby shall be known as "MetLife Capital Trust III" as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders and the other Trustees, in which name the Administrative Trustees and the other Trustees may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued on behalf of the Trust. SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business. The address of the Delaware Trustee in the State of Delaware is c/o JPMorgan Chase Bank, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, DE 19713, Attention: Worldwide Securities Services, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Sponsor, the Property Trustee and the Administrative Trustees. The principal executive office of the Trust is c/o Chase Bank USA, National Association, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, Delaware 19713, Attention: Institutional Trust Services. SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses. The Trustees acknowledge receipt from the Sponsor in connection with the Original Declaration of Trust of the sum of $10, which constituted the initial Trust Property. The Sponsor shall pay organizational expenses of the Trust as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee for any such expenses paid by such Trustee. The Sponsor shall not make any claim upon the Trust Property for the payment of such expenses. SECTION 2.4. Issuance of the Trust Preferred Securities. On June 15, 2005, the Sponsor, on behalf of the Trust, executed and delivered the Underwriting Agreement. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Trust, in connection with the execution and delivery on such date of 82,800,000 Normal Common Equity Units to the underwriters named in the Underwriting Agreement, shall execute in accordance with Section 5.3 and deliver to the Securities Intermediary a Trust Preferred Securities Certificate, registered in the name of the Stock Purchase Contract Agent with the form of assignment attached thereto executed in blank, in an aggregate Initial Liquidation Amount of $1,035,000,000, against payment of $1,035,000,000 as the purchase price therefor in immediately available funds, which funds such Administrative Trustee shall promptly deliver to the Property Trustee or its designee. SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase Debentures. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in accordance with Section 5.3 and deliver to the Sponsor a Common Securities Certificate, registered in the name of the Sponsor, 13 evidencing 27,800 Common Securities having an aggregate Initial Liquidation Amount of $27,800,000 against payment by the Sponsor of the purchase price therefor in immediately available funds, which amount such Administrative Trustee shall promptly deliver to the Property Trustee or its designee. Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase from the Sponsor the Debentures registered in the name of the Trust and having an aggregate initial principal amount equal to $1,067,000,000 and shall deliver to the Sponsor the purchase price therefor (being the sum of the amounts delivered to the Property Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence of this Section 2.5). SECTION 2.6. Trust Agreement. The exclusive purposes and functions of the Trust are (a) to issue and sell Trust Securities, (b) to use the proceeds from such sale to acquire the Debentures, and (c) to engage in those activities necessary or incidental thereto. The Sponsor hereby appoints the Trustees as trustees of the Trust, to have all the rights, powers and duties to the extent set forth herein, and the Trustees hereby accept such appointment. The Property Trustee hereby declares that it will hold the Trust Property upon and subject to the conditions set forth herein for the benefit of the Trust and the Holders. The Administrative Trustees shall have all rights, powers and duties set forth herein and in accordance with applicable law with respect to accomplishing the purposes of the Trust. The Delaware Trustee shall be one of the trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Delaware Statutory Trust Act and for taking such actions as are required to be taken by a Delaware trustee under the Delaware Statutory Trust Act. SECTION 2.7. Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, and in accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including the following: (i) As among the Trustees, the Administrative Trustees, and each of them, shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (A) the issuance and sale of the Trust Securities; (B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust the common securities purchase agreement the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust; 14 (C) to cause the Trust to execute, deliver and perform its obligations under Remarketing Agreements entered into pursuant to Article X and, except as otherwise expressly provided in Article X, cause the Trust to take such actions with respect to Remarketings as are provided for in Article X or as may be necessary or, as determined by the Administrative Trustees, useful in connection with Remarketings; (D) to cause the Trust to execute, deliver and perform its obligations under the Agreement as to Expenses and Liabilities; (E) assisting in the registration of the Trust Preferred Securities under the Securities Act and under state securities or blue sky laws, and the qualification of this Trust Agreement under the Trust Indenture Act; (F) assisting in the listing of the Trust Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Sponsor, with the registration of the Trust Preferred Securities under the Exchange Act, if required, and with the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (G) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement; (H) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement; (I) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; (J) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; (K) execution and delivery of closing certificates, if any, pursuant to the Underwriting Agreement and any Remarketing Agreement and application for a taxpayer identification number for the Trust; (L) unless otherwise required by the Delaware Statutory Trust Act, the Trust Indenture Act or other applicable law, to execute on behalf of the Trust (either acting alone or together with any or all of the Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; (M) the taking of any action incidental to the foregoing as the Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; and (N) the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware. 15 (ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (A) the establishment of the Payment Account; (B) the receipt of the Debentures; (C) to authenticate the Trust Securities Certificates; (D) the collection of interest, principal and any other payments or instruments (including due bills or promissory notes of the Sponsor issuable under or with respect to the Debentures) made in respect of the Debentures and the holding of such amounts in the Payment Account; (E) the distribution through the Paying Agent of amounts or property or instruments (including due bills or promissory notes of the Sponsor issuable under or with respect to the Debentures) distributable to the Holders in respect of the Trust Securities; (F) the exercise of all of the rights, powers and privileges of a holder of the Debentures; (G) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement; (H) the distribution of the Trust Property in accordance with the terms of this Trust Agreement; (I) acting as Paying Agent to the extent appointed under this Trust Agreement; (J) acting as Security Registrar to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust; and (K) after an Event of Default (other than under paragraph (b),(c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), and subject to the provisions of Article VIII, the taking of any action incidental to the foregoing as is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder). Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i). (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust, solely in their respective capacities as Trustees) shall not undertake any business, activities or transactions except as expressly provided 16 herein or contemplated hereby. In particular, the Trustees (acting on behalf of the Trust, solely in their respective capacities as Trustees) shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would reasonably be expected to cause the Trust to become taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any proceeds received by the Trust from holding the Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Holders in their capacity as Holders. (c) In connection with the issuance and sale of the Trust Preferred Securities, the Sponsor shall have the right and, if the Sponsor shall desire that the actions be taken, the responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Sponsor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): (i) the preparation and filing by the Trust with the Commission of and the execution on behalf of the Trust of a registration statement on the appropriate form in relation to the Trust Preferred Securities, including any amendments thereto; (ii) the determination of the states in which to take appropriate action to qualify or register for sale all or part of the Trust Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Trust, and the advice to the Trust of actions they must take on behalf of the Trust, and the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states; (iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Trust Preferred Securities and filing with such exchange or self-regulatory organization such notification and documents as may be necessary from time to time to maintain such listing; 17 (iv) the negotiation of the terms of, and the execution and delivery of, the Underwriting Agreement providing for the sale of the Trust Preferred Securities; and (v) the taking of any other actions necessary or desirable to carryout any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes and so that the Debentures will be treated as indebtedness of the Sponsor for United States Federal income tax purposes. In this connection, the Sponsor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that they determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Trust Preferred Securities. In no event shall the Sponsor or the Trustees be liable to the Trust or the Holders for any failure to comply with this Section that results from a change in law or regulation or in the interpretation thereof. SECTION 2.8. Assets of Trust. The assets of the Trust shall consist solely of the Trust Property. SECTION 2.9. Title to Trust Property. Legal title to all Trust Property shall be vested at all times in the Property Trustee (in its capacity as such) and shall be held and administered by the Property Trustee in trust for the benefit of the Trust and the Holders in accordance with this Trust Agreement. ARTICLE III PAYMENT ACCOUNT SECTION 3.1. Payment Account. (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account. The Property Trustee and its agents shall have exclusive control and sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as herein provided, including (and subject to) any priority of payments provided for herein. (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all payments of principal of or interest on, and any other payments or 18 proceeds with respect to, the Debentures. Amounts held in the Payment Account shall not be invested by the Property Trustee pending distribution thereof. ARTICLE IV DISTRIBUTIONS; REDEMPTION SECTION 4.1. Distributions. (a) The Trust Securities represent undivided beneficial interests in the Trust Property, and Distributions (including of Additional Amounts) will be made on the Trust Securities at the rate and on the dates that payments of interest (including Additional Interest, as defined in the Indenture) are made on the Debentures. Accordingly: (i) Distributions on the Trust Securities shall be cumulative and will accumulate from the Time of Delivery as and when interest accrues on the Debentures. (ii) Distributions shall accumulate on the Trust Securities for each Distribution Period at the Distribution Rate for such Distribution Period. (iii) Distributions payable in cash will be payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, commencing August 15, 2005, to and including the Stock Purchase Date, and on and after the Stock Purchase Date, Distributions payable in cash, if any, will be payable semi-annually on each February 15 and August 15 or May 15 and November 15, as applicable, with the first such semi-annual distribution date, if any, occurring on a date that is six months after the Stock Purchase Date (each such date a "Distribution Date"), in each case subject to the Trust having funds available for such Distributions. (iv) For Distribution Periods commencing on or after the Stock Purchase Date, Distributions will accrete at the Distribution Rate instead of being paid in cash (with the amount of accretion on any date for each Trust Security being equal to the amount of accretion on a Like Amount of Debentures), unless the Sponsor elects to pay interest on the Debentures in cash pursuant to Section 10.2 or the Stock Purchase Date is August 15, 2010 and the Remarketing for settlement on such date is a Failed Remarketing. (v) If any date which is otherwise a Distribution Date pursuant to paragraph (iii) above is not a Business Day, then the payment of cash Distributions on such Distribution Date, if applicable, shall be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on the date on which such payment was originally payable; provided, however, that if the next succeeding Business Day is in the next succeeding calendar year, then the payment of cash distributions shall be made on the immediately preceding Business Day. (vi) Distributions shall be payable in cash on each Distribution Date on which the Sponsor is obligated to pay interest on the Debentures in cash, and the amount of such cash Distribution (net of any withholding tax required by law to be withheld on such payments which shall be remitted to the appropriate taxing jurisdiction) on the Accreted Liquidation Amount of each Trust Security shall equal the amount of interest payable in cash on such Distribution Date on a Like Amount of Debentures. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 19 (vii) The amount of Distributions payable for any Distribution Period shall include the Additional Amounts, if any. (viii) Distributions on the Trust Securities shall be made by the Property Trustee from the Payment Account and shall be payable on each Distribution Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Distributions. (b) Distributions in cash on the Trust Securities with respect to a Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register for the Trust Securities at the close of business on the relevant record date for such Distribution Date, which shall be the first date of the month in which the relevant Distribution Date falls. Distributions payable on any Trust Securities that are not punctually paid on any Distribution Date will cease to be payable to the Person in whose name such Trust Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Trust Securities are registered on the special record date or other specified date for determining Holders entitled to such defaulted interest established in accordance with the Indenture. SECTION 4.2. Redemption. (a) On each Debenture Redemption Date and on the Debenture Stated Maturity Date, the Trust will be required to redeem a Like Amount of Trust Securities at the Redemption Price. (b) Upon receipt of notice of a Debenture Redemption Date, notice of redemption of a Like Amount of Trust Securities shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date to each Holder of Trust Securities to be redeemed, at such Holder's address appearing in the Security Register. All notices of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the third Business Day prior to the Redemption Date (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (iii) the CUSIP number or CUSIP numbers of the Trust Preferred Securities affected; 20 (iv) if less than all the Outstanding Trust Securities are to be redeemed, the identification and/or the aggregate Liquidation Amount of the particular Trust Securities to be redeemed; (v) that on the Redemption Date the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that Distributions thereon will cease to accumulate on and after said date, except as provided in Section 4.2(d) below; and (vi) if the Trust Preferred Securities are not in book-entry-only form, the place or places where the Trust Preferred Securities Certificates are to be surrendered for the payment of the Redemption Price. (c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption or payment at the Debenture Stated Maturity Date of the Debentures. Redemptions of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Redemption Price. (d) If the Property Trustee gives a notice of redemption in respect of any Trust Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with respect to Book-Entry Trust Preferred Securities, irrevocably deposit with the Clearing Agency for such Book-Entry Trust Preferred Securities, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities. With respect to Trust Preferred Securities that are not Book-Entry Trust Preferred Securities, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities upon surrender of their Trust Preferred Securities Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as they appear on the Securities Register for the Trust Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the date of such deposit, all rights of Holders holding Trust Securities so called for redemption will cease, except the right of such Holders to receive the Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to the Redemption Date, but without interest, and such Trust Securities will cease to be outstanding. In the event that any date on which any Redemption Price is payable is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (without any interest or other payment in respect of any such delay), with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption is improperly withheld or 21 refused and not paid either by the Trust or by the Sponsor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accumulate, as set forth in Section 4.1, from the Redemption Date originally established by the Trust for such Trust Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price. (e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are to be redeemed on a Redemption Date, then the aggregate Accreted Liquidation Amount of Trust Securities to be redeemed shall be allocated pro rata to the Common Securities and the Trust Preferred Securities based upon the relative Accreted Liquidation Amounts of such classes. The particular Trust Preferred Securities to be redeemed shall be selected on a pro rata basis based upon their respective Accreted Liquidation Amounts not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Trust Preferred Securities not previously called for redemption by any method the Property Trustee deems fair and appropriate, provided that so long as the Trust Preferred Securities are in book-entry-only form, such selection shall be made in accordance with the customary procedures for the Clearing Agency for the Trust Preferred Securities. The Property Trustee shall promptly notify the Securities Registrar in writing of the Trust Preferred Securities selected for redemption and, in the case of any Trust Preferred Securities selected for partial redemption, the Accreted Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Trust Preferred Securities shall relate, in the case of any Trust Preferred Securities redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Trust Preferred Securities that has been or is to be redeemed. SECTION 4.3. Subordination of Common Securities. (a) Payment of Distributions (including any Additional Amounts) on, the Redemption Price of, and the Liquidation Distribution in respect of, the Trust Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata among the Common Securities and the Trust Preferred Securities based on the Accreted Liquidation Amount of the Trust Securities; provided, however, that if on any Distribution Date, Redemption Date or Liquidation Date any Event of Default resulting from a Debenture Event of Default specified in Section 6.1(a)(1) or 6.1(a)(2) of the Supplemental Indenture shall have occurred and be continuing, no payment of any Distribution (including any Additional Amounts) on, Redemption Price of, or Liquidation Distribution in respect of, any Common Security, and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions (including any Additional Amounts) on all Outstanding Trust Preferred Securities for all Distribution Periods terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all Outstanding Trust Preferred Securities then called for redemption, or in the case of payment of the Liquidation Distribution the full amount of such Liquidation Distribution on all Outstanding Trust Preferred Securities, shall have been made or provided for, and all funds immediately available to the Property Trustee 22 shall first be applied to the payment in full in cash of all Distributions (including any Additional Amounts) on, or the Redemption Price of, the Trust Preferred Securities then due and payable. (b) In the case of the occurrence of any Event of Default resulting from any Debenture Event of Default, the Holders of the Common Securities shall have no right to act with respect to any such Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated. Until all such Events of Default under this Trust Agreement with respect to the Trust Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Trust Preferred Securities and not on behalf of the Holders of the Common Securities, and only the Holders of the Trust Preferred Securities will have the right to direct the Property Trustee to act on their behalf. SECTION 4.4. Payment Procedures. Payments of cash Distributions (including any Additional Amounts) in respect of the Trust Preferred Securities shall, subject to the next succeeding sentence, be made by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register or, if the Trust Preferred Securities are held by a Clearing Agency, such Distributions shall be made to the Clearing Agency by wire transfer of immediately available funds. A Holder of $1,000,000 or more in aggregate Initial Liquidation Amount of Trust Preferred Securities may receive payments of cash Distributions (including any Additional Amounts) by wire transfer of immediately available funds upon written request to the Property Trustee not later than the 15th calendar day, whether or not a Business Day, before the relevant Distribution Date. Payments in respect of the Common Securities shall be made in such manner as shall be mutually agreed between the Property Trustee and the Holders of the Common Securities. SECTION 4.5. Tax Returns and Reports. The Administrative Trustees shall prepare (or cause to be prepared), at the Sponsor's expense, and file all United States Federal, state and local tax and information returns and reports required to be filed by or in respect of the Trust. In this regard, the Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed) all Internal Revenue Service forms required to be filed in respect of the Trust in each taxable year of the Trust, and (b) prepare and furnish (or cause to be prepared and furnished) to each Holder all Internal Revenue Service forms required to be provided by the Trust. The Administrative Trustees shall provide the Sponsor and the Property Trustee with a copy of all such returns and reports promptly after such filing or furnishing. The Trustees shall comply with United States Federal withholding and backup withholding tax laws and information reporting requirements with respect to any payments to Holders under the Trust Securities. SECTION 4.6. Payment of Expenses of the Trust. The Sponsor shall pay to the Trust, and reimburse the Trust for, the full amount of any costs, expenses or liabilities of the Trust (other than obligations of the Trust to pay the Holders 23 any Trust Preferred Securities or other similar interests in the Trust the amounts due such Holders pursuant to the terms of the Trust Preferred Securities or such other similar interests, as the case may be), including, without limitation, any taxes, duties or other governmental charges of whatever nature (other than withholding taxes) imposed on the Trust by the United States or any other taxing authority. Such payment obligation includes any such costs, expenses or liabilities of the Trust that are required by applicable law to be satisfied in connection with a dissolution of the Trust. SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions. Any amount payable hereunder to any Holder of Trust Preferred Securities (or any Owner with respect thereto) shall be reduced by the amount of any corresponding payment such Holder (or Owner) has directly received pursuant to Section 6.3 of the Supplemental Indenture or Section 5.14 of this Trust Agreement. ARTICLE V TRUST SECURITIES CERTIFICATES SECTION 5.1. Initial Ownership. Upon the formation of the Trust and the contribution by the Sponsor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust Securities are outstanding, the Sponsor shall be the sole beneficial owner of the Trust. SECTION 5.2. The Trust Securities Certificates. The Trust Preferred Securities Certificates shall be issued in minimum denominations of $1,000 Initial Liquidation Amount and integral multiples of $1,000 in excess thereof, and the Common Securities Certificates shall be issued in denominations of $1,000 Initial Liquidation Amount and integral multiples thereof. The Trust Securities Certificates shall be executed on behalf of the Trust by manual signature of at least one Administrative Trustee. Trust Securities Certificates bearing the manual signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust or the Property Trustee shall be validly issued, fully paid and nonassessable undivided beneficial interests in the assets of the Trust, and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities Certificate shall become a Holder, and shall be entitled to the rights and subject to the obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11 or 5.13. SECTION 5.3. Execution, Authentication and Delivery of Trust Securities Certificates. At the Time of Delivery, at least one of the Administrative Trustees shall cause Trust Securities Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or upon the written order of the Sponsor, 24 such written order executed by one Authorized Officer thereof, without further corporate action by the Sponsor, in authorized denominations. No Trust Securities Certificate shall be entitled to any benefit under this Trust Agreement or be valid or obligatory for any purpose unless there appears on such Trust Securities Certificate a certificate of authentication substantially in the form provided for herein executed by an authorized officer of the Property Trustee by manual signature, and such certificate upon any Trust Securities Certificate shall be conclusive evidence, and the only evidence, that such Trust Securities Certificate has been duly authenticated and delivered hereunder. SECTION 5.4. Registration of Transfer and Exchange of Trust Preferred Securities Certificates. The Sponsor shall keep or cause to be kept, at the office or agency maintained pursuant to Section 5.8, a register or registers for the purpose of registering Trust Securities Certificates and transfers and exchanges of Trust Preferred Securities Certificates (the "Securities Register") in which the registrar designated by the Sponsor (the "Securities Registrar"), subject to such reasonable regulations as it may prescribe, shall provide for the registration of Trust Preferred Securities Certificates and Common Securities Certificates (subject to Section 5.10 in the case of the Common Securities Certificates) and registration of transfers and exchanges of Trust Preferred Securities Certificates as herein provided. J.P. Morgan Trust Company, National Association shall be the initial Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property Trustee also in its role as Securities Registrar, for so long as the Property Trustee shall act as Securities Registrar. Upon surrender for registration of transfer of any Trust Preferred Securities Certificate at the office or agency maintained pursuant to Section 5.8, the Administrative Trustees or any one of them shall execute on behalf of the Trust and deliver, in the name of the designated transferee or transferees, one or more new Trust Preferred Securities Certificates in authorized denominations of a like aggregate Initial Liquidation Amount dated the date of execution by such Administrative Trustee or Trustees. The Securities Registrar shall not be required to register the transfer of any Trust Preferred Securities that have been called for redemption during a period beginning at the opening of business 15 days before the day of selection for such redemption. At the option of a Holder, Trust Preferred Securities Certificates may be exchanged for other Trust Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate Initial Liquidation Amount upon surrender of the Trust Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 5.8. Every Trust Preferred Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to an Administrative Trustee and the Securities Registrar duly executed by the Holder or his attorney duly authorized in writing. Each Trust Preferred Securities Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently disposed of by an Administrative Trustee in accordance with such Person's customary practice. No service charge shall be made for any registration of transfer or exchange of Trust Preferred Securities Certificates, but the Securities Registrar may require payment of a sum 25 sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Trust Preferred Securities Certificates. SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates. If (a) any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Trust Securities Certificate, and (b) there shall be delivered to the Securities Registrar and the Administrative Trustees such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Securities Certificate shall have been acquired by a bona fide purchaser, the Administrative Trustees, or any one of them, on behalf of the Trust shall execute and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust Securities Certificate under this Section 5.5, the Administrative Trustees or the Securities Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Securities Certificate issued pursuant to this Section shall constitute conclusive evidence of an undivided beneficial interest in the assets of the Trust corresponding to that evidenced by the lost, stolen or destroyed Trust Securities Certificate, as if originally issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at any time. SECTION 5.6. Persons Deemed Holders. The Trustees and the Securities Registrar shall each treat the Person in whose name any Trust Securities Certificate shall be registered in the Securities Register as the owner of such Trust Securities Certificate for the purpose of receiving Distributions and for all other purposes whatsoever, and none of the Trustees, the Administrative Trustees and the Securities Registrar shall be bound by any notice to the contrary. SECTION 5.7. Access to List of Holders' Names and Addresses. Each Holder and each Owner shall be deemed to have agreed not to hold the Sponsor, the Property Trustee, the Delaware Trustee or the Administrative Trustees accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived. SECTION 5.8. Maintenance of Office Agency. The Administrative Trustees shall designate an office or offices or agency or agencies where Trust Preferred Securities Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trustees in respect of the Trust Securities Certificates may be served. The Administrative Trustees initially designate J.P. Morgan Trust Company, National Association, Attention: Worldwide Securities Services, as their office and agency for such purposes. An Administrative Trustee shall give prompt written notice to the Sponsor, the Property Trustees and to the Holders of any change in the location of the Securities Register or any such office or agency. 26 SECTION 5.9. Appointment of Paying Agent. The Paying Agent shall make Distributions to Holders from the Payment Account and shall report the amounts of such Distributions to the Property Trustee and the Administrative Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account solely for the purpose of making the Distributions referred to above. The Property Trustee may revoke such power and remove the Paying Agent in its sole discretion. The Paying Agent shall initially be J.P. Morgan Trust Company, National Association. Any Person acting as Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Administrative Trustees and the Property Trustee. If the Property Trustee shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company) that is reasonably acceptable to the Sponsor to act as Paying Agent. Such successor Paying Agent or any additional Paying Agent shall execute and deliver to the Trustees an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Trustees that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property Trustee also in its role as Paying Agent, for so long as the Property Trustee shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise SECTION 5.10. Ownership of Common Securities by Sponsor. At the Time of Delivery, the Sponsor shall acquire beneficial and record ownership of the Common Securities. To the fullest extent permitted by law, other than a transfer in connection with a consolidation or merger of the Sponsor into another Person, or any conveyance, transfer or lease by the Sponsor of its properties and assets substantially as an entirety to any Person pursuant to Section 10.01 of the Base Indenture, any attempted transfer of the Common Securities other than to a direct or indirect subsidiary of the Sponsor shall be void. The Administrative Trustees shall cause each Common Securities Certificate issued to the Sponsor to contain a legend consistent with this Section 5.10. SECTION 5.11. Book-Entry Trust Preferred Securities Certificates; Common Securities Certificate. (a) Trust Preferred Securities Certificates that are no longer a component of Normal Common Equity Units and are released from the Collateral Account (as defined in the Pledge Agreement), will be issued in the form of a typewritten Trust Preferred Securities Certificate or Certificates representing Book-Entry Trust Preferred Securities Certificates, to be delivered to, or on behalf of, DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Such Trust Preferred Securities Certificate or Certificates shall initially be registered on the Securities Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner will receive a Definitive Trust Preferred 27 Securities Certificate representing such Owner's interest in such Trust Preferred Securities, except as provided in Section 5.13. Except where Definitive Trust Preferred Securities Certificates have been issued to the Securities Intermediary or to Owners pursuant to Section 5.13: (i) the provisions of this Section 5.11(a) shall be in full force and effect; (ii) the Securities Registrar and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Trust Agreement relating to the Book-Entry Trust Preferred Securities Certificates (including the payment of the Liquidation Amount of and Distributions on the Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates and the giving of instructions or directions to Owners of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates) as the sole Holder of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates and shall have no obligations to the Owners thereof; (iii) to the extent that the provisions of this Section 5.11 conflict with any other provisions of this Trust Agreement, the provisions of this Section 5.11 shall control; and (iv) the rights of the Owners of the Book-Entry Trust Preferred Securities Certificate shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive Trust Preferred Securities Certificates are issued pursuant to Section 5.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments on the Trust Preferred Securities to such Clearing Agency Participants. (b) A single Common Securities Certificate representing the Common Securities shall be issued to the Sponsor in the form of a definitive Common Securities Certificate. SECTION 5.12. Notices to Clearing Agency. To the extent that a notice or other communication to the Holders is required under this Trust Agreement, for so long as Trust Preferred Securities are represented by a Book-Entry Trust Preferred Securities Certificates, the Trustee shall give all such notices and communications specified herein to be given to the Clearing Agency, and shall have no obligations to the Owners. SECTION 5.13. Definitive Trust Preferred Securities Certificates. The Trust Preferred Securities Certificates issued at the Time of Delivery and upon the underwriters' exercise of their over-allotment option, as contemplated by Section 2.4, shall be issued as Definitive Trust Preferred Securities Certificates in accordance with Section 2.4. 28 Additionally, if (a) the Sponsor advises the Trustees in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Trust Preferred Securities Certificates, and the Sponsor is unable to locate a qualified successor, (b) the Sponsor at its option advises the Trustees in writing that it elects to terminate the book-entry system through the Clearing Agency or (c) after the occurrence of a Debenture Event of Default, Owners of Trust Preferred Securities Certificates representing beneficial interests aggregating at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities advise the Administrative Trustees in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interest of the Owners of Trust Preferred Securities Certificates, then the Administrative Trustees shall notify the other Trustees and the Clearing Agency, and the Clearing Agency, in accordance with its customary rules and procedures, shall notify all Clearing Agency Participants for whom it holds Trust Preferred Securities of the occurrence of any such event and of the availability of the Definitive Trust Preferred Securities Certificates to Owners of such class or classes, as applicable, requesting the same. Upon surrender to the Administrative Trustees of the typewritten Trust Preferred Securities Certificate or Certificates representing the Book-Entry Trust Preferred Securities Certificates by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one of them, shall execute the Definitive Trust Preferred Securities Certificates in accordance with the instructions of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Trust Preferred Securities Certificates, the Trustees shall recognize the Holders of the Definitive Trust Preferred Securities Certificates as holders of Trust Securities. The Definitive Trust Preferred Securities Certificates shall be typewritten, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees that meets the requirements of any stock exchange or automated quotation system on which the Trust Preferred Securities are then listed or approved for trading, as evidenced by the execution thereof by the Administrative Trustees or any one of them. SECTION 5.14. Rights of Holders; Waivers of Past Defaults. (a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in its capacity as such) in accordance with Section 2.9, and the Holders shall not have any right or title therein other than the undivided beneficial interest in the assets of the Trust conferred by their Trust Securities and they shall have no right to call for any partition or division of property, profits or rights of the Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Trust Agreement. The Trust Preferred Securities shall have no preemptive or similar rights and when issued and delivered to Holders against payment of the purchase price therefor will be fully paid and nonassessable undivided beneficial interests in the assets of the Trust. The Holders of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. (b) For so long as any Trust Preferred Securities remain Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails or the holders of not less than 29 25% in aggregate principal amount of the outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due and payable, the Property Trustee or the Holders of at least 25% in Accreted Liquidation Amount of the Trust Preferred Securities then Outstanding shall have the right to make such declaration by a notice in writing to the Sponsor, the Debenture Trustee and the Property Trustee, in the case of notice by the Holders of the Trust Preferred Securities, or to the Sponsor, the Debenture Trustee and the Holders of the Trust Preferred Securities, in the case of notice by the Property Trustee, and upon any such declaration such principal amount of and the accrued interest on all of the Debentures shall become immediately due and payable, provided that the payment of principal and interest on such Debentures shall remain subordinated to the extent provided in the Indenture. At any time after a declaration of acceleration with respect to the Debentures has been made and before a judgment or decree for payment of the money due has been obtained by the Debenture Trustee as in the Indenture provided, the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, by written notice to the Property Trustee, the Sponsor and the Debenture Trustee, may rescind and annul such declaration and its consequences if: (i) the Sponsor has paid or deposited with the Debenture Trustee a sum sufficient to pay (A) all overdue installments of interest on all of the Debentures, (B) any accrued Additional Interest (as defined in the Indenture) on all of the Debentures, (C) the principal of (and premium, if any, on) any Debentures that have become due otherwise than by such declaration of acceleration and interest and Additional Interest (as defined in the Indenture) thereon at the rate borne by the Debentures, and (D) all sums paid or advanced by the Debenture Trustee under the Indenture and all amounts due to the Debenture Trustee under Section 7.06 of the Base Indenture and to the Property Trustee under Section 8.6 hereof; and (ii) all Events of Default with respect to the Debentures, other than the non-payment of the principal of the Debentures that has become due solely by such acceleration, have been cured or waived as provided in Section 6.08 of the Base Indenture. The Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default under the Indenture, except a default in the payment of principal or interest (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Debenture Trustee) or a default in respect of a covenant or provision that under the Indenture cannot be modified or 30 amended without the consent of the holder of each outstanding Debenture. No such rescission shall affect any subsequent default or impair any right consequent thereon. Upon receipt by the Property Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, by Holders of any part of the Trust Preferred Securities a record date shall be established for determining Holders of Outstanding Trust Preferred Securities entitled to join in such notice, which record date shall be at the close of business on the day the Property Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided that, unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day that is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice that has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.14(b). (c) For so long as any Trust Preferred Securities remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Debenture Event of Default specified in Section 6.1(a)(1) or 6.1(a)(2) of the Supplemental Indenture, any Holder of Trust Preferred Securities shall have the right to institute a proceeding directly against the Sponsor, pursuant to Section 6.02 of the Base Indenture, for enforcement of payment to such Holder of any amounts payable in respect of a Like Amount of Debentures (a "Direct Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the Holders of Trust Preferred Securities shall have no right to exercise directly any right or remedy available to the holders of, or in respect of, the Debentures. (d) Except as otherwise provided in paragraphs (a), (b) and (c) of this Section 5.14, the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising there from shall be deemed to have been cured, for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. SECTION 5.15. CUSIP Numbers. The Administrative Trustees in issuing the Trust Preferred Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Property Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Trust Preferred Securities or as contained in any notice of a redemption and that reliance may be 31 placed only on the other identification numbers printed on the Trust Preferred Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Administrative Trustees will promptly notify the Property Trustee of any change in the CUSIP numbers. SECTION 5.16. Cancellation. All Certificates surrendered upon the transfer of Trust Preferred Securities or for delivery of Trust Preferred Securities or Treasury Securities, as the case may be, after the occurrence of a Termination Event or pursuant to a Cash Settlement, an Early Settlement or a Cash Merger Early Settlement, or upon the registration of transfer or exchange of a Common Equity Unit, or a Collateral Substitution or the recreation of a Normal Common Equity Unit shall, if surrendered to any Person other than the Stock Purchase Contract Agent, be delivered to the Stock Purchase Contract Agent along with appropriate written instructions regarding the cancellation thereof and, if not already cancelled, shall be promptly cancelled by it. No Certificates shall be authenticated, executed and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section, except as expressly permitted by this Agreement. All cancelled Certificates held by the Property Trustee shall be disposed of in accordance with its customary practices. ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING SECTION 6.1. Limitations on Voting Rights. (a) Except as expressly provided in this Trust Agreement and in the Indenture and as otherwise required by law, no Holder of Trust Preferred Securities shall have any right to vote or in any manner otherwise control the administration, operation and management of the Trust or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Trust Securities Certificates, be construed so as to constitute the Holders from time to time as partners or members of an association. (b) So long as any Debentures are held by the Property Trustee on behalf of the Trust, the Trustees shall not (i) direct the time, method and place of conducting any proceeding for any remedy available to the Debenture Trustee, or execute any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waive any past default that may be waived under Section 6.08 of the Base Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Debentures, where such consent shall be required, without, in each case, obtaining the prior approval of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities; provided, however, that where a consent under the Indenture would require the consent of each holder of Debentures affected thereby, no such consent shall be given by the Property Trustee without the prior written consent of each Holder of Trust Preferred Securities. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Trust Preferred Securities, except by a subsequent vote of the Holders of the Trust Preferred Securities. 32 The Property Trustee shall notify all Holders of the Trust Preferred Securities of any notice of default received with respect to the Debentures. In addition to obtaining the foregoing approvals of the Holders of the Trust Preferred Securities, prior to taking any of the foregoing actions, the Trustees shall, at the expense of the Sponsor, obtain an Opinion of Counsel experienced in such matters to the effect that such action shall not cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes. SECTION 6.2. Notice of Meetings. Notice of all meetings of the Holders of the Trust Preferred Securities, stating the time, place and purpose of the meeting, shall be given by the Property Trustee pursuant to Section 12.8 to each Holder of Trust Preferred Securities, at such Holder's registered address, at least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice. SECTION 6.3. Meetings of Holders of the Trust Preferred Securities. No annual meeting of Holders is required to be held. The Property Trustee, however, shall call a meeting of the Holders of the Trust Preferred Securities to vote on any matter upon the written request of the Holders of at least 25% in aggregate Accreted Liquidation Amount of the Outstanding Trust Preferred Securities and the Administrative Trustees or the Property Trustee may, at any time in their discretion, call a meeting of the Holders of the Trust Preferred Securities to vote on any matters as to which such Holders are entitled to vote. The Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, present in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Trust Preferred Securities. If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or by proxy, holding Trust Preferred Securities representing at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities held by the Holders present, either in person or by proxy, at such meeting shall constitute the action of the Holders of the Trust Preferred Securities, unless this Trust Agreement requires a greater number of affirmative votes. SECTION 6.4. Voting Rights. Holders shall be entitled to one vote for each $1,000 of Initial Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled to vote. SECTION 6.5. Proxies. At any meeting of Holders, any Holder entitled to vote there at may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall have been placed on file with the Administrative Trustees, or with such other officer or agent of the Trust as the Administrative Trustees may direct, for verification prior to the time at which such vote shall be taken. Pursuant 33 to a resolution of the Administrative Trustees, proxies may be solicited in the name of the Administrative Trustees or one or more officers of the Administrative Trustees. Only Holders of record shall be entitled to vote. When Trust Securities are held jointly by several persons, any one of them may vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received in respect of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. No proxy shall be valid more than three years after its date of execution. SECTION 6.6. Holder Action by Written Consent. Any action that may be taken by Holders at a meeting may be taken without a meeting if Holders holding at least a Majority in Accreted Liquidation Amount of all Trust Preferred Securities entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any other provision of this Trust Agreement) shall consent to the action in writing. SECTION 6.7. Record Date for Voting and Other Purposes. For the purposes of determining the Holders who are entitled to notice of and to vote at any meeting or by written consent, or to participate in any Distribution on the Trust Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrative Trustees may from time to time fix a date, not more than 90 days prior to the date of any meeting of Holders or the payment of a Distribution or other action, as the case may be, as a record date for the determination of the identity of the Holders of record for such purposes. SECTION 6.8. Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to the Property Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor of the Trustees, if made in the manner provided in this Section. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or 34 affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that any Trustee receiving the same deems sufficient. The ownership of Trust Securities shall be proved by the Securities Register. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Trust Security shall bind every future Holder of the same Trust Security and the Holder of every Trust Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustees, or the Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security. Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of the Accreted Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such Accreted Liquidation Amount. If any dispute shall arise between the Holders and the Trustees or among the Holders or the Trustees with respect to the authenticity, validity or binding nature of any request, demand, authorization, direction, consent, waiver or other Act of such Holder or Trustee under this Article VI, then the determination of such matter by the Property Trustee shall be conclusive with respect to such matter. A Holder may institute a legal proceeding directly against the Sponsor under the Guarantee to enforce its rights under the Guarantee without first instituting a legal proceeding against the Guarantee Trustee (as defined in the Guarantee), the Trust, any Trustee, or any Person or entity. SECTION 6.9. Inspection of Records. Upon reasonable notice to the Administrative Trustees and the Property Trustee, the records of the Trust shall be open to inspection by Holders during normal business hours for any purpose reasonably related to such Holder's interest as a Holder. SECTION 6.10. Action With Respect to the Debenture. So long as the Debentures are held by the Property Trustee on behalf of the Trust, with respect to any waiver, amendment or similar action that requires the consent of the Holders of the Debentures under the Indenture, the Property Trustee shall act at the written direction of the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities (unless a different percentage of Holders shall be specified in the Indenture with respect to such action). 35 ARTICLE VII REPRESENTATIONS AND WARRANTIES SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Sponsor and the Holders that: (a) the Property Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America; (b) the Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) the Delaware Trustee is a national banking association, duly organized, validly existing and in good standing under the federal laws of the United States of America. (d) the Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (e) this Trust Agreement has been duly authorized, executed and delivered by the Property Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of each of the Property Trustee and the Delaware Trustee enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (f) the execution, delivery and performance of this Trust Agreement have been duly authorized by all necessary corporate or other action on the part of the Property Trustee and the Delaware Trustee and do not require any approval of stockholders of the Property Trustee and the Delaware Trustee and such execution, delivery and performance will not (i) violate the articles of association or by-laws of the Property Trustee or the Delaware Trustee, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Property Trustee or the Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the State of New York or the State of Delaware, as the case may be, governing the banking, trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware Trustee; 36 (g) neither the authorization, execution or delivery by the Property Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property Trustee or the Delaware Trustee (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing law of the State of New York or the State of Delaware, governing the [banking], trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context), other than the filing of the Certificate of Trust with the Delaware Secretary of State; and (h) to the best of each of the Property Trustee's and the Delaware Trustee's knowledge, there are no proceedings pending or threatened against or affecting the Property Trustee or the Delaware Trustee in any court or before any governmental authority, agency or arbitration board or tribunal that, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Trustees under this Trust Agreement. SECTION 7.2. Representations and Warranties of Sponsor. The Sponsor hereby represents and warrants for the benefit of the Holders that: (a) the Trust Securities Certificates issued at the Time of Delivery on behalf of the Trust have been duly authorized and will have been duly and validly executed, issued and delivered by the Administrative Trustees pursuant to the terms and provisions of, and in accordance with the requirements of, this Trust Agreement, and the Holders will be, as of such date, entitled to the benefits of this Trust Agreement; and (b) there are no taxes, fees or other governmental charges payable by the Trust (or the Trustees on behalf of the Trust) under the laws of the State of Delaware or any political subdivision thereof in connection with the execution, delivery and performance by any Trustee of this Trust Agreement. ARTICLE VIII THE TRUSTEES SECTION 8.1. Certain Duties and Responsibilities. (a) The duties and responsibilities of the Trustees shall be as provided by this Trust Agreement, subject to Section 12.10 hereof with respect to the Property Trustee. Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the Trustees to expend or risk its or their own funds or otherwise incur any financial liability in the performance of any of its or their duties hereunder, or in the exercise of any of its or their rights or powers, if it or they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of this Section 37 8.1. To the extent that, at law or in equity, an Administrative Trustee or the Delaware Trustee has duties and liabilities relating to the Trust or to the Holders, such Administrative Trustee or the Delaware Trustee shall not be liable to the Trust or to any Holder for such Administrative Trustee's or Delaware Trustee's good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Administrative Trustees or the Delaware Trustee otherwise existing at law or in equity, are agreed by the Sponsor and the Holders to replace such other duties and liabilities of the Administrative Trustees or the Delaware Trustee. (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property and only to the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that the Trustees are not personally liable to such Holder for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 8.1(b) does not limit the liability of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture Act. (c) If an Event of Default has occurred and is continuing, the Property Trustee shall enforce this Trust Agreement for the benefit of the Holders. (d) The Property Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Trust Agreement (including pursuant to Section 12.10), and no implied covenants shall be read into this Trust Agreement against the Property Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 5.14), the Property Trustee shall exercise such of the rights and powers vested in it by this Trust Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (e) No provision of this Trust Agreement shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Trust Agreement (including pursuant to Section 12.10), and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Trust Agreement (including pursuant to Section 12.10); and 38 (B) in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Trust Agreement; but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Trust Agreement; (ii) the Property Trustee shall not be liable for any error of judgment made in good faith by an authorized officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement; (iv) the Property Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Debentures and the Payment Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the Trust Indenture Act; (v) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor; and money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except to the extent otherwise required by law; (vi) the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for the default or misconduct of any other Trustee, the Administrative Trustees or the Sponsor; and (vii) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it. 39 (f) The Administrative Trustees shall not be responsible for monitoring the compliance by the other Trustees or the Sponsor with their respective duties under this Trust Agreement, nor shall either Administrative Trustee be liable for the default or misconduct of any other Trustee or the Sponsor. (g) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and liabilities of the Property Trustee or the Administrative Trustees set forth herein. The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of the Delaware Statutory Trust Act. The Delaware Trustee shall be entitled to all of the same rights, protections indemnities and immunities under the Trust Agreement and with respect to the Trust as the Property Trustee. SECTION 8.2. Certain Notices. Within thirty days after the occurrence of any Event of Default actually known to the Property Trustee, the Property Trustee shall transmit, in the manner and to the extent provided in Section 12.8, notice of such Event of Default to the Holders and the Administrative Trustees, unless such Event of Default shall have been cured or waived. Within five Business Days after the receipt of notice of the Sponsor's exercise of its right to defer the payment of interest on the Debentures pursuant to the Indenture, the Property Trustee shall transmit, in the manner and to the extent provided in Section 12.8, notice of such exercise to the Holders and the Administrative Trustees, unless such exercise shall have been revoked. The Property Trustee shall not be deemed to have knowledge of any Event of Default unless the Property Trustee shall have received written notice or a Responsible Officer of the Property Trustee charged with the administration of this Trust Agreement shall have obtained actual knowledge of such Event of Default. SECTION 8.3. Certain Rights of Property Trustee. Subject to the provisions of Section 8.1: (a) the Property Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any 40 matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Sponsor requesting the Sponsor's opinion as to the course of action to be taken; provided, however, that if the Sponsor fails to deliver such opinion within 10 Business Days, the Property Trustee may take such action, or refrain from taking such action, as the Property Trustee shall determine in the interests of the Holders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct; (c) any direction or act of the Sponsor or the Sponsor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or re-registration thereof; (f) the Property Trustee may consult with counsel of its own selection (which counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; provided that, nothing contained herein shall, however, relieve the Property Trustee of the obligation, upon the occurrence of an Event of Default (that has not been cured or waived) to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Sponsor and shall incur no liability of any kind by reason of such inquiry or investigation; 41 (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, provided that the Property Trustee shall be responsible for its own negligence or misconduct with respect to selection of any agent or attorney appointed by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Trustee shall be construed to be a duty. SECTION 8.4. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Trust Securities Certificates shall be taken as the statements of the Trust and the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees shall not be accountable for the use or application by the Sponsor of the proceeds of the Debentures. The Property Trustee makes no representation as to the title to, or value or condition of, the Trust Property or any part thereof, including the Debentures, nor as to the validity or sufficiency of the Trust Agreement, the Debentures or the Trust Securities. The Property Trustee makes no representation as to the validity or the qualification of the Trust as a Delaware statutory trust or a grantor trust or as to the sale of the Trust Preferred Securities by the Trust, including without limitation, any registration exemptions applicable to the Trust Securities. SECTION 8.5. May Hold Securities. Any Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as provided in the definition of the term "Outstanding" in Article I, may otherwise deal with the Trust with the same rights it would have if it were not Trustee or such other agent. 42 SECTION 8.6. Compensation; Indemnity; Fees. The Sponsor agrees: (a) to pay to the Trustees from time to time such reasonable compensation for all services rendered by them hereunder as may be separately agreed by the Sponsor and the Trustees from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of their agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by their own negligence, bad faith or willful misconduct; and (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any officer, director, shareholder, employee, representative or agent of any Trustee, and (iv) any employee or agent of the Trust (referred to herein as an "Indemnified Person") from and against any loss, damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by reason of the creation, operation or dissolution of the Trust or any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Trust Agreement, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of negligence, bad faith or willful misconduct with respect to such acts or omissions. The provisions of this Section 8.6 shall survive the termination of this Trust Agreement and the removal or resignation of any Trustee. No Trustee may claim any Lien on any Trust Property as a result of any amount due pursuant to this Section 8.6. Subject to Section 8.8, The Sponsor and any Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Trust Securities shall have no rights by virtue of this Trust Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. Neither the Sponsor nor any Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and the Sponsor and any Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depository for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. 43 SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrative Trustees. (a) There shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that is a national or state chartered bank or trust company and eligible pursuant to the Trust Indenture Act to act as such and that has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 8.7 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the provisions of this Section 8.7(a), it shall resign immediately in the manner and with the effect hereinafter specified in this Article VIII. At the time of appointment, the Property Trustee must have securities rated in one of the three highest rating categories by a nationally recognized statistical rating organization. (b) There shall at all times be one or more Administrative Trustees hereunder with respect to the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity. (c) There shall at all times be a Delaware Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware, or (ii) a legal entity with its principal place of business in the State of Delaware and that otherwise meets the requirements of applicable Delaware law and that shall act through one or more persons authorized to bind such entity. SECTION 8.8. Conflicting Interests. (a) If the Property Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Trust Agreement. (b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described in this Trust Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. SECTION 8.9. Co-Trustees and Separate Trustee. Unless and until a Debenture Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Holder of Common Securities and the Administrative Trustees shall have the power to appoint one or more Persons either to act as co-trustee, jointly with the Property Trustee, of all or any part of 44 such Trust Property, or to the extent required by law to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. If a Debenture Event of Default shall have occurred and be continuing, the Property Trustee shall have the sole power to so appoint such a co-trustee or separate trustee, and upon the written request of the Property Trustee, the Sponsor and the Administrative Trustees shall for such purpose join with the Property Trustee in the execution, delivery, and performance of all instruments and agreements necessary or proper to appoint such co-trustee or separate trustee. Any co-trustee or separate trustee appointed pursuant to this Section shall either be (i) a natural person who is at least 21 years of age and a resident of the United States, or (ii) a legal entity with its principal place of business in the United States that shall act through one or more persons authorized to bind such entity. Should any written instrument from the Sponsor be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Sponsor. Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Trust Securities shall be executed by one or more Administrative Trustees, and the Trust Securities shall be delivered by the Property Trustee, and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Property Trustee specified hereunder shall be exercised solely by the Property Trustee and not by such co-trustee or separate trustee. (b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or separate trustee. (c) The Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Sponsor, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section 8.9, and, in case a Debenture Event of Default has occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Sponsor. Upon the written request of the Property Trustee, the Sponsor shall join with the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such 45 resignation or removal. A successor to any co-trustee or separate trustee so resigning or removed may be appointed in the manner provided in this Section 8.9. No co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee or any other trustee hereunder. (d) The Property Trustee shall not be liable by reason of any act or omission of a co-trustee or separate trustee. (e) Any Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee. SECTION 8.10. Resignation and Removal; Appointment of Successor. No resignation or removal of any Trustee (the "Relevant Trustee") and no appointment of a successor Trustee pursuant to this Article VIII shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 8.11. Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by giving written notice thereof to the Sponsor and by appointing a successor Relevant Trustee, which successor shall be acceptable to the Sponsor. The Relevant Trustee shall appoint a successor by requesting from at least three Persons meeting the eligibility requirements its expenses and charges to serve as the Relevant Trustee on a form provided by the Administrative Trustees, and selecting the Person who agrees to the lowest expenses and charges. If the instrument of acceptance by the successor Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 60 days after the giving of such notice of resignation, the Relevant Trustee may petition, at the expense of the Sponsor, in the case of the Property Trustee, any court of competent jurisdiction for the appointment of a successor Relevant Trustee. The Administrative Trustees, or any of them, may be removed at any time by Act of the Holders of Common Securities delivered to the Relevant Trustee. The Property Trustee or the Delaware Trustee, or both of them, may be removed by Act of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, delivered to the Relevant Trustee (in its individual capacity and, in the case of the Property Trustee, on behalf of the Trust) (i) for cause (including upon the occurrence of an Event of Default described in subparagraph (d) of the definition thereof with respect to the Relevant Trustee), or (ii) at any time if a Debenture Event of Default shall have occurred and be continuing. Unless and until a Debenture Event of Default shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at any time by Act of the Holders of the Common Securities. If a resigning Property Trustee or Delaware Trustee shall fail to appoint a successor, or if the Property Trustee or the Delaware Trustee shall be removed or become incapable of acting as Trustee, or if a vacancy shall occur in the office of the Property Trustee or the Delaware Trustee for any cause, the Holders of the Common Securities by Act of such Holders delivered to the Relevant Trustee or, if a Debenture Event of Default shall have occurred and be continuing, the 46 Holders of the Trust Preferred Securities, by Act of the Holders of not less than 25% in aggregate Accreted Liquidation Amount of the Trust Preferred Securities then Outstanding delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or Trustees, and such successor Trustee shall comply with the applicable requirements of Section 8.11. If no successor Relevant Trustee shall have been so appointed by the Holders of the Common Securities or Trust Preferred Securities, as the case may be, and accepted appointment in the manner required by Section 8.11, any Holder, on behalf of such Holder and all others similarly situated, or any other Trustee, may petition any court of competent jurisdiction for the appointment of a successor Relevant Trustee. The resigning Trustee shall give notice of each resignation or each removal of an Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 12.8 and shall give notice to the Sponsor and to the other Trustees. Each notice shall include the name of the successor Relevant Trustee and the address of its Corporate Trust Office if it is the Property Trustee. Notwithstanding the foregoing or any other provision of this Trust Agreement, if any Delaware Trustee who is a natural person dies or becomes, in the opinion of the Holders of the Common Securities, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the Property Trustee following the procedures regarding expenses and charges set forth above (with the successor being a Person who satisfies the eligibility requirement for the Delaware Trustee set forth in Section 8.7). SECTION 8.11. Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor to a Relevant Trustee, the Sponsor, the retiring Relevant Trustee and each successor Trustee with respect to the Trust Securities shall execute and deliver an amendment hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Trust Securities and the Trust, and (b) shall add to or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the Trust by more than one party hereto, it being understood that nothing herein or in such amendment shall constitute such parties co-trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee, other than the filing of an amendment to the Certificate of Trust to the extent required under the Delaware Statutory Trust Act; but, on request of the Trust or any successor Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the Trust Securities and the Trust. Upon request of any such successor party, the Trust shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor party all such rights, powers and trusts referred to in the preceding paragraph. 47 No successor party shall accept its appointment unless at the time of such acceptance such successor party shall be qualified and eligible under this Article VIII. SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Relevant Trustee shall be a party, or any Person, succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this Article VIII, without the execution or filing of any paper or any further act on the part of any of the parties hereto, other than the filing of an amendment to the Certificate of Trust to the extent required under the Delaware Statutory Trust Act. SECTION 8.13. Preferential Collection of Claims Against Sponsor or Trust. If and when the Property Trustee shall be or become a creditor of the Sponsor or the Trust (or any other obligor upon the Trust Preferred Securities), the Property Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Sponsor or the Trust (or any such other obligor). SECTION 8.14. Trustee May File Proofs of Claim. In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Trust or any other obligor upon the Trust Securities or the property of the Trust (including the Debentures) or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Trust Securities shall then be due and payable and irrespective of whether the Property Trustee shall have made any demand on the Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee under Section 8.6, and 48 (c) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expense of administration under any Bankruptcy Law or law relating to creditors' rights generally. Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 8.15. Reports by Property Trustee. (a) Within 60 days after May 15 of each year commencing with May 15, 2006, the Property Trustee shall transmit to all Holders in accordance with Section 12.8, and to the Sponsor, a brief report dated as of the immediately preceding May 15 with respect to: (i) its eligibility under Section 8.7 or, in lieu thereof, if to the best of its knowledge it has continued to be eligible under said Section, a written statement to such effect; (ii) a statement that the Property Trustee has complied with all of its obligations under this Trust Agreement during the twelve-month period (or, in the case of the initial report, the period since the Closing Date) ending with such May 15 or, if the Property Trustee has not complied in any material respect with such obligations, a description of such noncompliance; and (iii) any change in the property and funds in its possession as Property Trustee since the date of its last report and any action taken by the Property Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Trust Securities. (b) In addition, the Property Trustee shall transmit to Holders such reports concerning the Property Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each national stock exchange, the Nasdaq National Market or such other interdealer quotation system or self-regulatory organization upon which the Trust Preferred Securities are listed or quoted, if any, and with the Commission and the Sponsor. 49 SECTION 8.16. Reports to the Property Trustee. Each of the Sponsor and the Administrative Trustees shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. The Sponsor and the Administrative Trustees shall annually file with the Property Trustee a certificate specifying whether such Person is in compliance with all of the terms and covenants (if any) applicable to such Person hereunder. SECTION 8.17. Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Administrative Trustees shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers' Certificate. SECTION 8.18. Number of Trustees. (a) The number of Trustees shall be five, unless the Property Trustee also acts as the Delaware Trustee, in which case the number of Trustees may be three. (b) If an Trustee ceases to hold office for any reason, a vacancy shall occur. The vacancy shall be filled with an Trustee appointed in accordance with Section 8.10. (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of an Trustee shall not operate to annul or dissolve the Trust. SECTION 8.19. Delegation of Power. (a) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 2.7(a) or making any governmental filing; and (b) The Administrative Trustees shall have power to delegate from time to time to such of their number the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of this Trust Agreement. 50 SECTION 8.20. Trust Liabilities. All liabilities of the Trust will be liabilities of the Trust as an entity, and will be paid or satisfied from the Trust Property and the other assets of the Trust. No liability of the Trust will be payable in whole or in part by the Property Trustee in its individual capacity or in its capacity as Property Trustee or by any member, partner, shareholder, director, officer, employee, agent or attorney of the Property Trustee. Article IX DISSOLUTION, LIQUIDATION AND MERGER SECTION 9.1. Dissolution Upon Expiration Date. Unless earlier dissolved, the Trust shall automatically dissolve, and its affairs be wound up, on May 17, 2056 (the "Expiration Date"), following the distribution of the Trust Property in accordance with Section 9.4. Section 9.2. Early Dissolution. The first to occur of any of the following events is an "Early Dissolution Event": (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Sponsor, unless the Common Securities shall be transferred as provided by Section 5.10, in which case this provision shall refer instead to any such successor Holder of the Common Securities; (b) the written direction to the Property Trustee from all of the Holders of the Common Securities at any time to dissolve the Trust and, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to distribute the Debentures to Holders in exchange for the Trust Preferred Securities (which direction is optional and wholly within the discretion of the Holders of the Common Securities); (c) the redemption of all of the Trust Preferred Securities in connection with the redemption or repayment of all the Debentures; and (d) the entry of an order for dissolution of the Trust by a court of competent jurisdiction. SECTION 9.3. Dissolution. The respective obligations and responsibilities of the Trustees and the Trust shall terminate upon the latest to occur of the following: (a) the distribution by the Property Trustee to Holders of all amounts required to be distributed hereunder upon the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b) the payment of any and all expenses owed by the Trust; (c) the discharge of all administrative duties of the Administrative Trustees, including the performance of any tax reporting obligations with respect to the Trust or the Holders; and (d) the filing of a certificate of 51 cancellation, at the direction and expense of the Sponsor, by the Trustees with the Delaware Secretary of State pursuant to Section 3810 of the Delaware Statutory Trust Act. SECTION 9.4. Liquidation. (a) If an Early Dissolution Event specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by the Property Trustee as expeditiously as the Property Trustee determines to be possible by distributing, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to each Holder a Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Securities at such Holder's address appearing in the Securities Register. All such notices of liquidation shall: (i) state the CUSIP Number of the Trust Securities; (ii) state the Liquidation Date; (iii) state that from and after the Liquidation Date, the Trust Securities will no longer be deemed to be Outstanding and any Trust Securities Certificates not surrendered for exchange will be deemed to represent a Like Amount of Debentures, or if Section 9.4(d) applies, a right to receive a Liquidating Distribution; and (iv) provide such information with respect to the mechanics by which Holders may exchange Trust Securities Certificates for Debentures, or if Section 9.4(d) applies, receive a Liquidation Distribution, as the Property Trustee (after consultation with the Administrative Trustees) shall determine. (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the Trust and distribution of the Debentures to Holders, the Property Trustee, either itself acting as exchange agent or through the appointment of a separate exchange agent, shall establish a record date for such distribution (which shall be not more than 30 days prior to the Liquidation Date) and, establish such procedures as it shall deem appropriate to effect the distribution of Debentures in exchange for the Outstanding Trust Securities Certificates. (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of such Certificates to the exchange agent for exchange, (iii) any Trust Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Debentures bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid Distributions on such Trust Securities Certificates until such certificates are so surrendered (and until such certificates are so surrendered, no payments of interest or principal will be made to Holders of Trust Securities Certificates with respect to such Debentures) and (iv) all rights of Holders holding Trust 52 Securities will cease, except the right of such Holders to receive Debentures upon surrender of Trust Securities Certificates. (d) If, notwithstanding the other provisions of this Section 9.4, whether because of an order for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the Debentures in the manner provided herein is determined by the Property Trustee not to be practical, or if an Early Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust Property shall be liquidated, and the Trust shall be dissolved and its affairs wound-up, by the Property Trustee in such manner as the Property Trustee determines. In such event, the Holders, if any, will be entitled to receive out of the assets of the Trust available for distribution to Holders, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the Accreted Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Accreted Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holders of the Common Securities will be entitled to receive Liquidation Distributions pro rata (determined as aforesaid) with Holders of Trust Preferred Securities, except that, if a Debenture Event of Default specified in Section 6.1(a)(1) or 6.1(a)(2) of the Supplemental Indenture has occurred and is continuing, the Trust Preferred Securities shall have a priority over the Common Securities as provided in Section 4.3. SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust. The Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any Person or other body, except pursuant to this Section 9.5 or Section 9.4. At the request of the Holders of the Common Securities, with the consent of the Administrative Trustees, but without the consent of the Holders of the Trust Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized as such under the laws of any state; provided, that (i) such successor entity either (a) expressly assumes all of the obligations of the Trust with respect to the Trust Preferred Securities, or (b) substitutes for the Trust Preferred Securities other securities having substantially the same terms as the Trust Preferred Securities (the "Successor Securities") so long as the Successor Securities have the same priority as the Trust Preferred Securities with respect to distributions and payments upon liquidation, redemption and otherwise, (ii) a trustee of such successor entity possessing substantially the same powers and duties as the Property Trustee is appointed to hold the Debentures, (iii) the Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or other organization on which the Trust Preferred Securities are listed, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Trust Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization, (v) such merger, consolidation, amalgamation, replacement, conveyance, 53 transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Trust Preferred Securities (including any Successor Securities) in any material respect, (vi) such successor entity has a purpose substantially identical to that of the Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Property Trustee has received an Opinion of Counsel to the effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Trust Preferred Securities (including any Successor Securities) in any material respect, and (b) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor entity will be required to register as an "investment company" under the Investment Company Act, and (viii) the Sponsor or its permitted transferee owns all of the common securities of such successor entity and the Sponsor guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the Guarantee Agreement. Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of all of the Trust Preferred Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other Person or permit any other Person to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or the successor entity to be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes. ARTICLE X REMARKETING AND RESET RATE MECHANICS SECTION 10.1. Obligation to Conduct Remarketing and Related Requirements. (a) The Sponsor and the Trust shall appoint a nationally recognized investment banking firm as Remarketing Agent and enter into a Remarketing Agreement at least 30 days prior to each Remarketing Date. The Sponsor and the Trust may appoint different Remarketing Agents for Remarketings on and in connection with different Remarketing Dates, provided that they shall have appointed a Remarketing Agent and caused the related Remarketing Agreement to be in effect for the period commencing not less than 30 days prior to the related Remarketing Date and continuing through such Remarketing Date and the determination in accordance with this Article X that the related Remarketing is a Successful Remarketing or Failed Remarketing. Each Remarketing Agreement shall include such terms, conditions and other provisions as the Sponsor, the Trust and the Remarketing Agent may agree among themselves but shall in any event include provisions to substantially the following effect: (i) provide that the Remarketing Agent will use its commercially reasonable efforts to obtain a price for the Trust Preferred Securities to be remarketed in the Remarketing which results in proceeds, net of the Remarketing Agent's Fee, equal to at least 100% of their aggregate Accreted Liquidation Amount, plus accrued and unpaid Distributions, if any, to the Remarketing Settlement Date (including the Additional Interest, if any, that remains accrued and unpaid on the Remarketing Settlement Date because the Sponsor has exercised its right to defer interest on the Debentures in accordance with Section 4.01 of the Base Indenture); 54 (ii) provide that the Remarketing Agent will in its sole discretion reset the Distribution Rate on the Trust Preferred Securities (as a yield to the Scheduled Redemption Date unless the Sponsor elects, pursuant to Section 2.13 of the First Supplemental Indenture and Section 10.2 of this Trust Agreement, to cause interest on the Debentures to be paid in cash, and then as a rate per annum for payment of interest in cash on each applicable Distribution Date) in order to give effect to clause (i) above for Distribution Periods commencing on or after such Remarketing Settlement Date, subject to Section 10.3; (iii) provide that the Remarketing Agent will deduct the Remarketing Agent's Fee from the proceeds of the Remarketing and remit any proceeds remaining after such deduction to or at the direction of the Property Trustee, who either will apply such proceeds (or will have given the Remarketing Agent instructions to remit such proceeds in a manner that will result in their application) as follows (allocated to the Trust Preferred Securities that participated in the Remarketing on a pro rata basis in proportion to their Accreted Liquidation Amounts): (iv) to the extent such proceeds relate to Trust Preferred Securities that are a part of Normal Common Equity Units, to pay such proceeds up to the aggregate Par Proceeds Remarketing Amount to the Stock Purchase Contract Agent for application in accordance with the Stock Purchase Contract Agreement and to pay the Excess Proceeds Remarketing Amount, if any, to the applicable selling Holders; and (b) to the extent the proceeds relate to Separate Trust Preferred Securities, to pay such proceeds to the applicable selling Holders; and (i) provide that the Remarketing Agent's Fee for the Remarketing will be as agreed among the Sponsor, the Trust and the Remarketing Agent and set forth in the Remarketing Agreement. (c) The Sponsor and the Trust shall use their commercially reasonable efforts to effect remarketing of the Trust Preferred Securities as described in this Article X. If in the judgment of counsel to the Sponsor or to the Remarketing Agent it is necessary for a registration statement covering the Trust Preferred Securities to have been filed and have become effective under the Securities Act in order to effect the Remarketing, then the Sponsor and the Trust shall use their commercially reasonable efforts (i) to ensure that a registration statement covering the full Accreted Liquidation Amount of Trust Preferred Securities to be remarketed shall have become effective in a form that will enable the Remarketing Agent to rely on it in connection with the Remarketing or (ii) effect such Remarketing pursuant to Rule 144A under the Securities Act or another available exemption from the registration requirements under the Securities Act. SECTION 10.2. Sponsor Decisions in Connection With Remarketing. In connection with Remarketings, the Sponsor shall have the right hereunder to change certain terms of the Trust Preferred Securities (and under Section 2.10 of the Supplement Indenture, the Sponsor has the right to make corresponding changes in certain terms of the 55 Debentures) as provided below in this Section 10.2. By not later than the 30th day prior to each Remarketing Date, the Sponsor will specify the following information or decisions in a notice to the Remarketing Agent, the Property Trustee, the Debenture Trustee and the Stock Purchase Contract Agent (paragraphs (a) through (e) applying only if the Remarketing is Successful and paragraph (f) applying only if the related Remarketing Settlement Date is February 15, 2009 and the Remarketing is a Failed Remarketing): (a) whether from and after the Remarketing Settlement Date the Debentures will pay interest (and, accordingly, the Trust Preferred Securities will pay Distributions) in cash (it being understood and agreed that, unless the Sponsor affirmatively elects to cause the Debentures to pay interest (and the Trust Preferred Securities to pay Distributions) in cash from and after the Remarketing Settlement Date, interest will not be paid or Distributions made in cash but, instead, will accrete in accordance with Section 4.1(a) of this Agreement and Section 2.10 of the Supplemental Indenture, as applicable); (b) whether the Debenture Stated Maturity Date (and, accordingly, the Scheduled Redemption Date) will remain at February 15, 2040 or will be changed to an earlier date (specifying such date if applicable); provided, however, that the Debenture Stated Maturity Date may not be changed to a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (c) whether the Debentures (and, accordingly, the Trust Preferred Securities) will be redeemable at the Sponsor's option on a day prior to the Debenture Stated Maturity Date and, if so, the date on and after which the Debentures may be so redeemed and the redemption price or prices; provided, however, that an early redemption date for the Debentures and related early Redemption Date hereunder may not be a date earlier than the second anniversary of the Stock Purchase Date or, if the Remarketing Settlement Date occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period; (d) whether the Sponsor elects, in connection with the Remarketing, to add any additional financial covenants to the Indenture applicable to the Debentures, including the form of supplemental indenture proposed to be entered into in order to give effect to such additional financial covenants if the Sponsor is choosing to add any financial covenants; (e) whether in connection with such Remarketing the Sponsor is exercising its right under Section 6.1 of the Supplemental Indenture and Section 6.3 of the Guarantee Agreement to cause the subordination provisions in the Indenture applicable to the Debentures and in the Guarantee Agreement to no longer be of force and effect from and after the then current Remarketing Settlement Date; and (f) if the Remarketing Settlement Date is February 15, 2009 and if the related Remarketing is a Failed Remarketing: 56 (i) whether the Debenture Stated Maturity Date (and, accordingly, the Scheduled Redemption Date) will remain at February 15, 2040 or will be changed to an earlier date (specifying such date if applicable); and (ii) whether the Debentures (and, accordingly, the Trust Preferred Securities) will be redeemable at the Sponsor's option on a date prior to the Debenture Stated Maturity Date and, if so, the date on and after which the Debentures may be so redeemed; provided, however, any changed Debenture Stated Maturity Date and Scheduled Redemption Date determined pursuant to clause (i) or early redemption date determined pursuant to clause (ii) may not be a date earlier than August 15, 2010 or, if February 15, 2009 occurs during a Deferral Period, the fifth anniversary of the first day of such Deferral Period. SECTION 10.3. Reset of Distribution Rate in Connection with Remarketings and Related Changes in Terms. (a) As part of and in connection with each Remarketing, the Remarketing Agent shall reset the Distribution Rate, as contemplated by Section 10.1(a)(ii) and in accordance with the other provisions of this Article X, to a new rate (the "Reset Rate"), rounded to the nearest one-thousandth (0.001) of one percent per annum, that will apply to all Trust Preferred Securities (whether or not the Holders thereof participated in the Remarketing) if such Remarketing is Successful for each Distribution Period commencing on or after such Remarketing Settlement Date, subject to the following provisions and limitations: (i) the Reset Rate in connection with a Remarketing for settlement on the Remarketing Settlement Date, if such date is on or prior to November 15, 2008, may not be reset to a rate per annum that exceeds the Reset Cap; and (ii) the Reset Rate may not be less than 0% per annum in connection with any Remarketing. (b) If the Remarketing has been determined to be Successful in accordance with Section 10.4(e), by approximately 4:30 P.M., New York City time, on any Remarketing Date, the Remarketing Agent shall notify the Sponsor, the Property Trustee, the Debenture Trustee and the Stock Purchase Contract Agent that the Remarketing was Successful and the Reset Rate determined as part of such Remarketing in accordance with this Article X. (c) If a Remarketing is Successful, then commencing with the related Remarketing Settlement Date the Distribution Rate shall be reset to the Reset Rate determined in accordance with this Article X pursuant to such Remarketing and the other changes, if any, in the terms of the Debentures and the Trust Preferred Securities, as applicable, as notified by the Sponsor pursuant to Section 10.2, shall become effective (in accordance with the Indenture in the case of the Debentures). 57 (d) If a Remarketing for a settlement on a Remarketing Settlement Date prior to February 15, 2009 is not Successful: (i) no Trust Preferred Securities will be sold in such Remarketing; (ii) the Distribution Rate will remain unchanged unless and until it is reset pursuant to a subsequent Remarketing in accordance with this Article X; (iii) the other changes, if any, in the terms of the Debentures and the Trust Preferred Securities, as applicable, as notified by the Sponsor pursuant to Section 10.2, shall not become effective (whether pursuant to this Agreement in the case of the Trust Preferred Securities or pursuant to the Indenture in the case of the Debentures); and (iv) the Sponsor, the Trust and the applicable Remarketing Agent shall attempt another Remarketing on the next succeeding date that is a Remarketing Settlement Date. (e) If a Remarketing for a settlement on the February 15, 2009 Remarketing Settlement Date is not Successful: (i) no Trust Preferred Securities will be sold in such Remarketing and no further attempts at Remarketing shall be made; (ii) the Distribution Rate will remain unchanged and, in accordance with the Supplemental Indenture, the Debentures will continue to bear cash interest (and under this Trust Agreement the Trust Preferred Securities will continue to bear cash Distributions) at the Distribution Rate otherwise in effect, payable semi-annually on each February 15 and August 15 thereafter; (iii) the other changes, if any, in the terms of the Debentures and the Trust Preferred Securities, as applicable, as notified by the Sponsor pursuant to clauses (a) through (e) of the second sentence in Section 10.2, shall not become effective (whether pursuant to this Trust Agreement in the case of the Trust Preferred Securities or pursuant to the Indenture in the case of the Debentures); (iv) the Debenture Stated Maturity Date, Scheduled Redemption Date, and early redemption date for the Debentures and Trust Preferred Securities, will change in accordance with paragraph (f) of the second sentence of Section 10.2, as applicable; (v) in the case of Trust Preferred Securities that are included in Normal Common Equity Units, such Trust Preferred Securities will be applied in satisfaction of the Holders' obligations under Stock Purchase Contracts in accordance with the Pledge Agreement; and (vi) in the case of Separate Trust Preferred Securities, such Trust Preferred Securities will be returned to the related Holders in accordance with the 58 Pledge Agreement and Holders of Separate Trust Preferred Securities will have the rights provided for in Section 10.5. SECTION 10.4. Remarketing Procedures. (a) The Property Trustee will give Holders hereunder, the Stock Purchase Contract Agreement provides the Stock Purchase Agent will give Holders (as defined therein) of Common Equity Units, and the Sponsor will request that DTC give to its participants holding Common Equity Units or Trust Preferred Securities, notice of a Remarketing at least 21 Business Days prior to the related Remarketing Date. Such notice will set forth: (i) whether for Distribution Periods commencing on or after the Remarketing Settlement Date the Debentures will pay interest (and, accordingly, the Trust Preferred Securities will pay Distributions) in cash or instead will accrete interest and Distributions, as applicable, together with the applicable Distribution Dates and related record dates; (ii) any change in the Debenture Stated Maturity Date and Scheduled Redemption Date and, if applicable, the date on and after which the Sponsor will have the right to redeem the Debentures (resulting in a redemption by the Trust of the Trust Preferred Securities); (iii) whether the Sponsor's obligations under the Debentures and the Guarantee Agreement will remain subordinated after the Remarketing Settlement Date; (iv) any other changes in the terms of the Debentures or the Trust Preferred Securities notified by the Sponsor in connection with such Remarketing pursuant to Section 10.2 (including, if the Remarketing Settlement Date is February 15, 2009 and the Remarketing is a Failed Remarketing, any change in the Debenture Stated Maturity Date and Scheduled Redemption Date and, if applicable, the date on or after which the Sponsor will have the right to redeem the Debentures (resulting in a redemption by the Sponsor of the Common Equity Units)); (v) the procedures a beneficial owner must follow if it holds its Trust Preferred Securities as a component of Normal Common Equity Units to elect not to participate in the Remarketing and the date by which such election must be made; (vi) the procedures a beneficial owner must follow if it holds Separate Trust Preferred Securities to elect to participate in the Remarketing; and (vii) in the case of a Remarketing for settlement on the February 15, 2009 Remarketing Settlement Date, the procedures an Owner must follow in the event such Remarketing is a Failed Remarketing if such Owner holds Separate Trust Preferred Securities to exercise its Put Right. 59 (b) On any Remarketing Date, all outstanding Trust Preferred Securities included in Normal Common Equity Units will be tendered or deemed tendered to the Remarketing Agent for Remarketing unless the Holder thereof elects not to participate in the Remarketing. Each Holder of Trust Preferred Securities included in Normal Common Equity Units, by purchasing such Trust Preferred Securities, agrees to have such Trust Preferred Securities remarketed on any Remarketing Date (unless such Holder elects not to participate in the Remarketing as provided herein) and authorizes the Remarketing Agent to take any and all action on its behalf necessary to effect the Remarketing. On any Remarketing Date, each Holder of Trust Preferred Securities included in Normal Common Equity Units will have the right to elect not to have its Trust Preferred Securities remarketed by giving notice and taking the other actions provided for in Section 5.05 of the Pledge Agreement. (c) Each Holder of Separate Trust Preferred Securities may elect to have such Holder's Separate Trust Preferred Securities remarketed in any Remarketing. A Holder making such an election must, pursuant to the Pledge Agreement, notify the Custodial Agent and deliver such Separate Trust Preferred Securities to the Custodial Agent on or prior to 5:00 P.M., New York City time, on or prior to the fifth Business Day immediately preceding the applicable Remarketing Date (but no earlier than the Distribution Date immediately preceding the applicable Remarketing Date). Any such notice and delivery may not be conditioned upon the level at which the Reset Rate is established in the Remarketing or any other condition. Any such notice and delivery may be withdrawn on or prior to 5:00 P.M., New York City time, on the fifth Business Day immediately preceding the applicable Remarketing Date in accordance with the provisions set forth in the Pledge Agreement. Any such notice and delivery not withdrawn by such time will be irrevocable with respect to such Remarketing. Pursuant to Section 5.07(c) of the Pledge Agreement, promptly after 11:00 A.M., New York City time, on the Business Day immediately preceding the applicable Remarketing Date, the Custodial Agent, based on the notices and deliveries received by it prior to such time, shall notify the Remarketing Agent of the Initial Liquidation Amount of Separate Trust Preferred Securities to be tendered for Remarketing and shall cause such Separate Trust Preferred Securities to be presented to the Remarketing Agent. (d) If the Remarketing on a Remarketing Date is Successful, then the Remarketing Agent shall deduct the Remarketing Agent's Fee to which it is entitled as provided in Section 10.1 and the related Remarketing Agreement from the proceeds of such Remarketing and remit the remaining proceeds to the Property Trustee in accordance with Section 10.1(a)(iii) for application as provided therein. (e) If by 4:00 P.M., New York City time, on any Remarketing Date the Remarketing Agent has found buyers for all of the Trust Preferred Securities offered in the Remarketing in accordance with this Article X, a Successful Remarketing shall be deemed to have occurred. In the event of a Successful Remarketing, the Sponsor shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing was successful and specifying the Reset Rate and shall post such information on its website on the World Wide Web. 60 (f) If, by 4:00 P.M., New York City time, on any Remarketing Date the Remarketing Agent is unable to find buyers for all of the Trust Preferred Securities offered in the Remarketing in accordance with this Article X, a Failed Remarketing shall be deemed to have occurred. In the event of a Failed Remarketing, the Sponsor shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing was a Failed Remarketing and, if such Failed Remarketing was for settlement on February 15, 2009, stating the aggregate principal amount of Debentures that the Sponsor will be required to repurchase as required pursuant to Section 2.7 of the Supplemental Indenture, and the related aggregate Accreted Liquidation Amount of Trust Preferred Securities that the Trust will be required to purchase pursuant to Section 10.5, and publish such information on its website on the World Wide Web. (g) The right of each Holder (whether of Separate Trust Preferred Securities or of Trust Preferred Securities included in Normal Common Equity Units) to have its Trust Preferred Securities remarketed and sold in connection with any Remarketing shall be limited to the extent that (i) the Remarketing Agent conducts a Remarketing pursuant to the terms of the Remarketing Agreement, (ii) the Remarketing Agent is able to find a purchaser or purchasers for the Trust Preferred Securities offered in the Remarketing in accordance with this Article X and the Remarketing Agreement, and (iii) the purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required. (h) Neither the Property Trustee, the Sponsor nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon tender of Trust Preferred Securities for remarketing. SECTION 10.5. Put Right. (a) Subject to Section 10.5(b), if there has been a Final Failed Remarketing, Holders of Trust Preferred Securities will, subject to this Section 10.5, have the right (the "Put Right") to require: (i) the Property Trustee, as Holder (as defined in the Indenture) of Debentures, to exercise its right under Section 2.7 of the Supplemental Indenture to require the Sponsor to purchase thereunder a Like Amount of Debentures; and (ii) as a consequence, to require the Sponsor to purchase on February 15, 2010 under and in accordance with such Section 2.7 of the Supplemental Indenture a Like Amount of Debentures for consideration per Debenture (the "Put Consideration") of cash in an amount equal to 100% of their Accreted Principal Amount as of such date plus a junior subordinated note of the Sponsor, bearing interest at the rate of 4.91% per annum, in the amount of the accrued and unpaid interest (including Additional Interest) to but excluding such date on such Debentures and payable on August 15, 2010 or, if February 15, 2010 is during a Deferral Period and such Deferral Period ends after August 15, 2010, the fifth anniversary of the first day of such Deferral Period. 61 The Property Trustee will remit to each Holder of Separate Trust Preferred Securities making such election the Put Consideration upon receipt of the Put Consideration from the Sponsor. (b) The Put Right of a Holder of Separate Trust Preferred Securities will only be exercisable upon delivery of a notice to the Property Trustee by such Holder on or prior to 11:00 A.M., New York City time, on the second Business Day prior to the February 15, 2010 Remarketing Settlement Date. A Holder may give such notice by, when it makes its election under Section 10.4(c) to cause its Trust Preferred Securities to be offered in the Remarketing, stating in such notice that, in the event such Remarketing is in connection with the February 15, 2010 Remarketing Settlement Date and if such Remarketing is a Failed Remarketing, then such Holder makes the election provided for under this Section 10.5. (c) The rights of Holders of Trust Preferred Securities included in Normal Common Equity Units, including their Put Rights, will be subject to the security interest in favor of the Sponsor provided for in the Pledge Agreement. SECTION 10.6. Common Securities. The terms of the Common Securities shall automatically be modified as and when the terms of Trust Preferred Securities change pursuant to this Article, with the consequence that the terms of the Trust Preferred Securities shall at all times be identical to the terms of the Common Securities, except (i) for the subordination of the Common Securities pursuant to Section 4.3 and (ii) that Section 10.5 shall apply only to the Trust Preferred Securities. ARTICLE XI OTHER COMMON EQUITY UNIT RELATED PROVISIONS SECTION 11.1. Tax Treatment. Each Holder of Trust Preferred Securities agrees, by acceptance of Trust Preferred Securities, and each Owner agrees, by acceptance of a beneficial interest in Trust Preferred Securities, to treat for all United States federal income tax purposes (i) the Trust as a grantor trust, (ii) itself as the owner of the Stock Purchase Contracts and the related ownership interest in the Trust Preferred Securities or treasury securities pledged under the Pledge Agreement, as the case may be, (iii) the Debentures as indebtedness of the Sponsor, and (iv) the fair market value of each undivided beneficial interest in each ownership interest in the Trust Preferred Securities included in each Normal Common Equity Unit as $12.50 and the fair market value of each Stock Purchase Contract as $0. ARTICLE XII MISCELLANEOUS PROVISIONS SECTION 12.1. Limitation of Rights of Holders. Except as set forth in Section 9.2, the death or incapacity of any person having an interest, beneficial or otherwise, in Trust Securities shall not operate to terminate this Trust 62 Agreement, nor dissolve or annul the Trust, nor entitle the legal representatives or heirs of such Person or any Holder for such person, to claim an accounting, take any action or bring any proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. SECTION 12.2. Amendment. (a) This Trust Agreement may be amended from time to time by the Administrative Trustees and the Holders of all of the Common Securities, without the consent of any Holder of the Trust Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Trust will not be taxable as a corporation or classified as other than a grantor trust for United States Federal income tax purposes at all times that any Trust Securities are outstanding, to ensure that the Trust will not be required to register as an "investment company" under the Investment Company Act or to ensure the treatment of the Trust Preferred Securities as Tier 1 regulatory capital under the prevailing Federal Reserve rules and regulations; provided, however, that in the case of either clause (i) or (ii), such action shall not adversely affect in any material respect the interests of any Holder. Any such amendment shall become effective when notice is given to the Holders of the Trust Preferred Securities. (b) Except as provided in Section 12.2(c), any provision of this Trust Agreement may be amended by the Administrative Trustees, the Property Trustee, and the Holders of all of the Common Securities and with (i) the consent of Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that such amendment or the exercise of any power granted to the Trustees or the Administrative Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust or cause the Trust to be taxable as a corporation or as other than a grantor trust for United States Federal income tax purposes or affect the Trust's exemption from status as an "investment company" under the Investment Company Act. (c) In addition to and notwithstanding any other provision in this Trust Agreement, without the consent of each affected Holder (such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date, or (ii) restrict the right of a Holder to institute suit for the enforcement of any such payment on or after such date; and notwithstanding any other provision herein, without the unanimous consent of the Holders (such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of this Section 12.2 may not be amended. 63 (d) If any proposed amendment to the Trust Agreement provides for, or the Trustees otherwise propose to effect, (i) any action that would adversely affect in any material respect the powers, preferences or special rights of the Trust Preferred Securities, whether by way of amendment to the Trust Agreement or otherwise, or (ii) the dissolution and winding-up of the Trust, other than pursuant to the terms of this Trust Agreement, then the Holders of Outstanding Trust Preferred Securities as a class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities. Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result of such amendment, it would cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes. (e) Notwithstanding any other provisions of this Trust Agreement, no Trustee shall enter into or consent to any amendment to this Trust Agreement that would cause the Trust to fail or cease to qualify for the exemption from status as an "investment company" under the Investment Company Act or to be taxable as a corporation or to be classified as other than a grantor trust for United States Federal income tax purposes. (f) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Sponsor and the Administrative Trustees, this Trust Agreement may not be amended in a manner that imposes any additional obligation on the Sponsor or the Administrative Trustees. (g) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Property Trustee, this Trust Agreement may not be amended in a manner that imposes any additional obligation on, or adversely affects any rights, immunities or indemnities of, the Property Trustee. (h) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Delaware Trustee, this Trust Agreement may not be amended in a manner that imposes any additional obligation on, or adversely affects any rights, immunities or indemnities of, the Delaware Trustee. (i) In the event that any amendment to this Trust Agreement is made, the Administrative Trustees shall promptly provide to the Sponsor and the Property Trustee a copy of such amendment. (j) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into any amendment to this Trust Agreement that affects its own rights, duties or immunities under this Trust Agreement. The Property Trustee shall be entitled to receive an Opinion of Counsel and an Officers' Certificate stating that any amendment to this Trust Agreement is in compliance with this Trust Agreement. 64 SECTION 12.3. Separability. In case any provision in this Trust Agreement or in the Trust Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 12.4. Governing Law. This Trust Agreement and the rights and obligations of each of the Holders, the Trust, the Sponsor and the Trustees with respect to this Trust Agreement and the Trust Securities shall be construed in accordance with and governed by the laws of the State of Delaware without reference to its conflicts of laws provisions. SECTION 12.5. Payments Due on Non-Business Day. If the date fixed for any payment on any Trust Security shall be a day that is not a Business Day, then such payment need not be made on such date but may be made on the next succeeding day that is a Business Day, with the same force and effect as though made on the date fixed for such payment, and no Distributions shall accumulate on such unpaid amount for the period after such date. SECTION 12.6. Successors. This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to the Sponsor, the Trust and any Trustee, including any successor by operation of law. Except in connection with a consolidation, merger or sale involving the Sponsor that is permitted under Article X of the Base Indenture and pursuant to which the assignee agrees in writing to perform the Sponsor's obligations hereunder, the Sponsor shall not assign its obligations hereunder. SECTION 12.7. Headings. The Article and Section headings are for convenience only and shall not affect the construction of this Trust Agreement. SECTION 12.8. Reports, Notices and Demands. Any report, notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Holder, the Sponsor or the Sponsor may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in the case of a Holder of Trust Preferred Securities, to such Holder as such Holder's name and address may appear on the Securities Register and (b) in the case of the Holder of the Common Securities or the Sponsor, to MetLife, Inc., 27-01 Queens Plaza North, Long Island City, New York 11101, facsimile 212-578-0266, Attention: Treasurer, or to such other address as may be specified in a written notice by the Sponsor to the Property Trustee. Such notice, demand or 65 other communication to or upon a Holder shall be deemed to have been sufficiently given or made, for all purposes, upon hand delivery, mailing or transmission. Such notice, demand or other communication to or upon the Sponsor or the Holder of the Common Securities shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Sponsor or the Holder of the Common Securities, as the case may be. Any notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Trust, the Property Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall be given in writing addressed to such Person as follows: (a) with respect to the Property Trustee, to J.P. Morgan Trust Company, National Association, Worldwide Securities Services, 4 New York Plaza, 15th Floor, New York, New York 10004, Attention: Worldwide Securities Services, Telephone: (212) 623-5233, Facsimile: (212) 623-6215; (b) with respect to the Delaware Trustee, to Chase Bank USA, National Association, c/o JPMorgan Chase Bank, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, DE 19713, Attention: Worldwide Securities Services; (c) with respect to the Administrative Trustees, to them at c/o Chase Bank USA, National Association, 500 Stanton Christiana Road, 3rd Floor/OPS4, Newark, Delaware 19713, Attention: Institutional Trust Services, facsimile: (302) 552-6280; and (d) with respect to the Trust, to its principal office specified in Section 2.2, with a copy to the Property Trustee. Such notice, demand or other communication to or upon the Trust, the Delaware Trustee, the Property Trustee or the Administrative Trustees shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Trust, the Property Trustee or such Administrative Trustee. SECTION 12.9. Agreement Not to Petition. Each of the Trustees and the Sponsor agree for the benefit of the Holders that, until at least one year and one day after the Trust has been dissolved in accordance with Article IX, they shall not file, or join in the filing of, a petition against the Trust under any bankruptcy, insolvency, reorganization or other similar law (including the United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of any proceeding against the Trust under any Bankruptcy Law. If the Sponsor takes action in violation of this Section 12.9, the Property Trustee agrees, for the benefit of Holders, that at the expense of the Sponsor, it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such petition by the Sponsor against the Trust or the commencement of such action and raise the defense that the Sponsor has agreed in writing not to take such action and should be stopped and precluded therefrom and such other defenses, if any, as counsel for the Trustee or the Trust may assert. SECTION 12.10. Trust Indenture Act; Conflict with Trust Indenture Act. (a) Except as otherwise expressly provided herein, the Trust Indenture Act shall apply as a matter of contract to this Trust Agreement for purposes of interpretation, construction and defining the rights and obligations hereunder, and this Trust Agreement, the Sponsor and the Property Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Trust Agreement were qualified under that Act on the date hereof. Except as otherwise expressly provided herein, if and to the extent that any provision of this Trust Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. 66 (b) The Property Trustee shall be the only Trustee that is a trustee for the purposes of the Trust Indenture Act. (c) The application of the Trust Indenture Act to this Trust Agreement shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial interests in the assets of the Trust. SECTION 12.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS. SECTION 12.12. Counterparts. This Trust Agreement may contain more than one counterpart of the signature page and this Trust Agreement may be executed by the affixing of the signature of each of the parties to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 67 IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Declaration of Trust. METLIFE, INC., as Sponsor By: _______________________________ Name: Title: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Property Trustee By: _______________________________ Name: Title: CHASE BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee By: _______________________________ Name: Title: ANTHONY J. WILLIAMSON as Administrative Trustee By: _______________________________ Name: Title: PHILIP SALMON, as Administrative Trustee By: _______________________________ Name: Title: 68 THOMAS CURRAN, as Administrative Trustee By: _______________________________ Name: Title: 69 STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the____________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the____________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: 70 (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the____________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the____________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: 71 (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the____________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) STATE OF ) ) ss COUNTY OF ) On before me, the undersigned, a Notary Public in and for the____________, personally appeared ___________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that the foregoing instrument is the free act and deed of the entity upon behalf of which such person acted. WITNESS my hand and official seal SIGNATURE: (This area for official notarial seal) 72 CERTIFICATE OF AMENDMENT TO CERTIFICATE OF TRUST OF METLIFE CAPITAL TRUST III THIS Certificate of Amendment to Certificate of MetLife Capital Trust III (the "Trust"), is being duly executed and filed by the undersigned trustee to amend the Certificate of Trust of the Trust, dated May 17, 2001, (the "Certificate of Trust"), pursuant to the Delaware Statutory Trust Act (12 Del. C. Section 3801 et seq.)(the "Act"). 1. Name. The name of the statutory trust is MetLife Capital Trust III. 2. Amendment to Certificate of Trust. The Certificate of Trust is hereby amended by amending and restating Section 2 thereof in its entirety as follows: "2. Delaware Trustee. The name and business address of the trustee of the Trust with a principal place of business in the State of Delaware is: Chase Manhattan Bank USA, National Association 500 Stanton Christiana Road OPS4 / 3rd Floor Newark, Delaware 19713 Attn: Institutional Trust Services" 3. Effective Date. This Certificate of Trust shall be effective upon filing. IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed this Certificate of Amendment in accordance with Section 3811(a)(2) of the Act. CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee By: /s/ John J. Cashin ------------------------------- Name: JOHN J. CASHIN Title: VICE PRESIDENT A-1 EXHIBIT B [FORM OF COMMON SECURITIES CERTIFICATE] THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.10 OF THE TRUST AGREEMENT Certificate Number ______________ Number of Common Securities _________ Certificate Evidencing Common Securities of MetLife Capital Trust III 6.375% Common Securities (Initial Liquidation Amount $1,000 per Common Security) MetLife Capital Trust III, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that ________________ (the "Holder") is the registered owner of _________________ (___________) Common Securities of the Trust representing undivided common beneficial interests in the assets of the Trust and designated the 6.375% Common Securities (Initial Liquidation Amount $1,000 per Common Security) (the "Common Securities"). Except in accordance with the Trust Agreement (as defined below), the Common Securities are not transferable and, to the fullest extent permitted by law, any attempted transfer hereof other than in accordance therewith shall be void. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities are set forth in, and this certificate and the Common Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Declaration of Trust of the Trust, dated as of June 21, 2005, as the same may be amended from time to time (the "Trust Agreement"), among MetLife, Inc., as Sponsor, J.P. Morgan Trust Company, National Association, as Property Trustee, Chase Bank USA, National Association, as Delaware Trustee, the Administrative Trustees named therein, and the Holders of Trust Securities, including the designation of the terms of the Common Securities as set forth therein. The Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. Terms used but not defined herein have the meanings set forth in the Trust Agreement. B-1 IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed this certificate this _______ day of ____________, 20__. METLIFE CAPITAL TRUST III By: _______________________________ Name: Title: Administrative Trustee B-2 PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Common Securities referred to in the above mentioned Trust Agreement. Dated: _______________ ___________________________________ As Property Trustee By: _______________________________ Name: Title: Administrative Trustee B-3 EXHIBIT C [FORM OF TRUST PREFERRED SECURITIES CERTIFICATE] [This Trust Preferred Securities Certificate is a Book-Entry Trust Preferred Securities Certificate within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of a Clearing Agency or a nominee of a Clearing Agency. This Trust Preferred Securities Certificate is exchangeable for Trust Preferred Securities Certificates registered in the name of a person other than the Clearing Agency or its nominee only in the limited circumstances described in the Trust Agreement and may not be transferred except as a whole by the Clearing Agency to a nominee of the Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or another nominee of the Clearing Agency, except in the limited circumstances described in the Trust Agreement. Unless this Trust Preferred Securities Certificate is presented by an authorized representative of The Depository Trust Company, a New York Corporation ("DTC"), to MetLife Capital Trust III or its agent for registration of transfer, exchange or payment, and any Trust Preferred Securities Certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]1 NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH ACQUISITION OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER ERISA SECTION 406 OR CODE SECTION 4975, OR SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING AND, IN THE CASE OF ANY PURCHASER OR HOLDER RELYING ON ANY EXEMPTION OTHER THAN PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR U.S. DEPARTMENT OF LABOR REGULATION SECTION 2550.401c-1, HAS COMPLIED WITH ANY REQUEST BY THE SPONSOR OR THE TRUST FOR AN OPINION OF COUNSEL OR OTHER EVIDENCE WITH RESPECT TO THE AVAILABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT (A) IT IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, (B) ITS C-1 PURCHASE AND HOLDING OF SUCH SECURITIES WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER ERISA SECTION 406 OR CODE SECTION 4975, OR (C) IT IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING. __________________ (1) Insert on Global Certificates only. C-2 Certificate Number __________ Number of Trust Preferred Securities________ CUSIP NO. [-] Certificate Evidencing Series B Trust Preferred Securities of MetLife Capital Trust III 4.91% Series B Trust Preferred Securities (Initial Liquidation Amount $1,000 per Trust Preferred Securities) MetLife Capital Trust III, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that (the "Holder") is the registered owner of ________________ Trust Preferred Securities of the Trust representing an undivided preferred beneficial interest in the assets of the Trust and designated the MetLife Capital Trust III 4.91% Series B Trust Preferred Securities (Initial Liquidation Amount $1,000 per Trust Preferred Securities) (the "Trust Preferred Securities"). The Trust Preferred Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Trust Preferred Securities are set forth in, and this certificate and the Trust Preferred Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Declaration of Trust of the Trust, dated as of June 21, 2005, as the same may be amended from time to time (the "Trust Agreement"), among MetLife, Inc., as Sponsor, J.P. Morgan Trust Company, National Association, as Property Trustee, Chase Bank USA, National Association, as Delaware Trustee, the Administrative Trustees named therein, and the Holders of Trust Securities, including the designation of the terms of the Trust Preferred Securities as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement, dated as of June 21, 2005, as the same may be amended from time to time (the "Guarantee Agreement"), by and between MetLife, Inc., as Guarantor, and J.P. Morgan Trust Company, National Association, as Guarantee Trustee, to the extent provided therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed this certificate this day of METLIFE CAPITAL TRUST III By: _______________________________ Name: Title: Administrative Trustee C-3 PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Capital Securities referred to in the above mentioned Trust Agreement. Dated: _______________ ___________________________________ As Property Trustee By: _______________________________ Name: Title: Administrative Trustee C-4 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred Security to: ________________ (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints ____________________ agent to transfer this Trust Preferred Securities Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: Signature: ________________________ (Sign exactly as your name appears on the other side of this Trust Preferred Securities Certificate) The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. C-5 EX-4.18 8 y10123exv4w18.txt FORM OF GUARANTEE AGREEMENT Exhibit 4.18 ================================================================================ GUARANTEE AGREEMENT by and between METLIFE, INC., as Guarantor and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Guarantee Trustee relating to METLIFE CAPITAL TRUST II Dated as of June 21, 2005 ================================================================================ METLIFE, INC. Reconciliation and tie between Trust Indenture Act of 1939 and Guarantee Agreement, dated as of June 21, 2005
Trust Indenture Act Section Guarantee Section - ----------- ----------------- Section 310(a)................................................. 4.1(a) (b)................................................. 2.8, 4.1(c) (c)................................................. Not applicable Section 311(a)................................................. 2.2(b) (b)................................................. 2.2(b) (c)................................................. Not applicable Section 312(a)................................................. 2.2(a) (b)................................................. 2.2(b) Section 313 ................................................. 2.3 Section 314(a)................................................. 2.4 (b)................................................. Not applicable (c)................................................. 2.5 (d)................................................. Not applicable (e)................................................. 1.1, 2.5, 3.2 (f)................................................. 2.1, 3.2 Section 315(a)................................................. 3.1(d) (b)................................................. 2.7 (c)................................................. 3.1(c) (d)................................................. 3.1(d) (e)................................................. 2.1 Section 316(a)................................................. 1.1, 2.6, 5.4 (b)................................................. 5.4 (c)................................................. 2.1 Section 317(a)................................................. 2.1 (b)................................................. 2.1 Section 318(a)................................................. 2.1 (b)................................................. 2.1 (c)................................................. 2.1
Note: This reconciliation and tie shall not, for any purpose be deemed to be part of the Guarantee Agreement. 2 TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS Section 1.1 Definitions.......................................................................... 1 ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application..................................................... 5 Section 2.2 List of Holders...................................................................... 5 Section 2.3 Reports by the Guarantee Trustee..................................................... 5 Section 2.4 Periodic Reports to the Guarantee Trustee............................................ 5 Section 2.5 Evidence of Compliance with Conditions Precedent..................................... 6 Section 2.6 Events of Default; Waiver............................................................ 6 Section 2.7 Event of Default; Notice............................................................. 6 Section 2.8 Conflicting Interests................................................................ 6 ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE Section 3.1 Powers and Duties of the Guarantee Trustee........................................... 7 Section 3.2 Certain Rights of Guarantee Trustee.................................................. 8 Section 3.3 Compensation; Indemnity; Fees........................................................ 10 ARTICLE IV GUARANTEE TRUSTEE Section 4.1 Guarantee Trustee; Eligibility....................................................... 10 Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee........................ 11 ARTICLE V GUARANTEE Section 5.1 Guarantee............................................................................ 12 Section 5.2 Waiver of Notice and Demand.......................................................... 12 Section 5.3 Obligations Not Affected............................................................. 12 Section 5.4 Rights of Holders.................................................................... 13 Section 5.5 Guarantee of Payment................................................................. 13 Section 5.6 Subrogation.......................................................................... 13 Section 5.7 Independent Obligations.............................................................. 14
i TABLE OF CONTENTS (continued)
PAGE ARTICLE VI COVENANTS AND SUBORDINATION Section 6.1 Subordination........................................................................ 14 Section 6.2 Pari Passu Guarantees................................................................ 14 Section 6.3 Guarantor Election to End Subordination.............................................. 14 ARTICLE VII TERMINATION Section 7.1 Termination.......................................................................... 15 ARTICLE VIII MISCELLANEOUS Section 8.1 Successors and Assigns............................................................... 15 Section 8.2 Amendments........................................................................... 15 Section 8.3 Notices.............................................................................. 15 Section 8.4 Benefit.............................................................................. 16 Section 8.5 Governing Law........................................................................ 16 Section 8.6 Counterparts......................................................................... 16
ii GUARANTEE AGREEMENT, dated as of June 21, 2005 (the "Guarantee Agreement"), between MetLife, Inc., a Delaware corporation (the "Guarantor"), having its principal executive offices at 200 Park Avenue, New York, New York 10166, and J.P. Morgan Trust Company, National Association, a national banking association, as trustee (the "Guarantee Trustee"), for the benefit of the Holders from time to time of the Trust Preferred Securities of METLIFE CAPITAL TRUST II, a Delaware statutory trust (the "Trust"). RECITALS WHEREAS, pursuant to an Amended and Restated Declaration of Trust, of even date herewith (the "Trust Agreement"), among MetLife, Inc., as Sponsor, the Property Trustee, the Delaware Trustee, and the Administrative Trustees (each as named therein) and the holders from time to time of undivided beneficial ownership interests in the assets of the Trust, the Trust is issuing $1,035,000,000 aggregate Initial Liquidation Amount (as defined in the Trust Agreement) of its Trust Preferred Securities having the terms set forth in the Trust Agreement; and WHEREAS, the Trust Preferred Securities will be issued by the Trust, and the proceeds thereof, together with the proceeds from the issuance of the Trust's Common Securities, will be used to purchase the Debentures, which Debentures will be deposited with J.P. Morgan Trust Company, National Association, as Property Trustee under the Trust Agreement, as trust assets; and WHEREAS, as an incentive for the Holders to purchase the Trust Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth herein, to pay to the Holders of the Trust Preferred Securities the Guarantee Payments and to make certain other payments on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the purchase of Trust Preferred Securities by each Holder, which purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders from time to time. ARTICLE I DEFINITIONS Section 1.1 Definitions. For all purposes of this Guarantee Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) The terms defined in this Article I have the meanings assigned to them in this Article I, and include the plural as well as the singular; (b) All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (c) The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation;" (d) All accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (e) Unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Guarantee Agreement; and (f) The words "hereby," "herein," "hereof" and "hereunder" and other words of similar import refer to this Guarantee Agreement as a whole and not to any particular Article, Section or other subdivision. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authorized Officer" of any Person means any executive officer of such Person or any person authorized by or pursuant to a resolution of the Board of Directors (or equivalent body) of such Person. "Base Indenture" has the meaning specified in the Trust Agreement. "Board of Directors" means the board of directors of the Guarantor or any committee of the board of directors of the Guarantor, comprised of one or more members of the board of directors of the Guarantor or officers of the Guarantor, or both. "Common Securities" has the meaning specified in the Trust Agreement. "Debentures" has the meaning specified in the Trust Agreement. "Distributions" has the meaning specified in the Trust Agreement. "Event of Default" means (i) a default by the Guarantor in any of its payment obligations under this Guarantee Agreement; or (ii) a default by the Guarantor in any other obligation hereunder that remains unremedied for 30 days. "Guarantee Agreement" means this Guarantee Agreement, as modified, amended or supplemented from time to time. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Trust Preferred Securities, to the extent not paid or made by or on behalf of the Trust: (i) any accumulated and unpaid Distributions required to be paid on the Trust Preferred Securities, to the extent the Trust shall have funds on hand available therefor at such time; (ii) the Redemption Price with respect to any Trust Preferred Securities called for 2 redemption by the Trust, to the extent the Trust shall have funds on hand available therefor at such time; and (iii) upon a voluntary or involuntary dissolution, winding-up or liquidation of the Trust, other than in connection with the distribution of Debentures to the Holders or the redemption of the Trust Preferred Securities, the lesser of (a) the Liquidation Distribution with respect to the Trust Preferred Securities, to the extent that the Trust shall have funds on hand available therefor at such time, and (b) the amount of assets of the Trust remaining available for distribution to Holders on liquidation of the Trust. "Guarantee Trustee" means J.P. Morgan Trust Company, National Association, solely in its capacity as Guarantee Trustee and not in its individual capacity, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement, and thereafter means each such Successor Guarantee Trustee. "Guarantor" has the meaning specified in the first paragraph of this Guarantee Agreement. "Holder" means any Holder (as defined in the Trust Agreement) of any Trust Preferred Securities; provided, however, that in determining whether the Holders of the requisite percentage of Trust Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee. "Indenture" has the meaning specified in the Trust Agreement. "Indenture Supplement" has the meaning specified in the Trust Agreement. "Liquidation Distribution" has the meaning specified in the Trust Agreement. "List of Holders" has the meaning specified in Section 2.2(a). "Majority in Accreted Liquidation Amount of the Trust Preferred Securities" has the meaning specified in the Trust Agreement. "Officers' Certificate" means, with respect to any Person, a certificate signed by any two Authorized Officers of such person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement shall include: (a) a statement by each officer signing the Officers' Certificate that such officer has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Officers' Certificate; (c) a statement that each officer has made such examination or investigation as, in each such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and 3 (d) a statement as to whether, in the opinion of each officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, statutory or business trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Redemption Price" has the meaning set forth in the Trust Agreement. "Responsible Officer" means, with respect to the Guarantee Trustee, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust Officer or any other officer of the corporate trust department of the Guarantee Trustee and also means, with respect to a particular matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Senior Debt" has the meaning set forth in Section 7.1 of the Indenture Supplement. "Trust Preferred Securities" has the meaning specified in the Trust Agreement. "Stock Purchase Date" has the meaning specified in the Stock Purchase Contract Agreement, dated as of the date hereof, among the Guarantor and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent. "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1. "Trust" has the meaning specified in the first paragraph of this Guarantee Agreement. "Trust Agreement" means the Amended and Restated Declaration of Trust of the Trust referred to in the recitals to this Guarantee Agreement, as modified, amended or supplemented from time to time. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended as in force at the date as of which this Guarantee Agreement was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended. "Vice President," when used with respect to the Guarantor, means any duly appointed vice president, whether or not designated by a number or a word or words added before or after the title "vice president." 4 ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application. The Trust Indenture Act shall apply as a matter of contract to this Guarantee Agreement for purposes of interpretation, construction and defining the rights and obligations hereunder, and this Guarantee Agreement, the Guarantor and the Guarantee Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Guarantee Agreement were qualified under the Trust Indenture Act on the date hereof. If and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. Section 2.2 List of Holders. (a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a) semi-annually, on or before June 30 and December 31 of each year, a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders (a "List of Holders") as of a date not more than 15 days prior to the delivery thereof, and (b) at such other times as the Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Guarantor and has not otherwise been received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with the requirements of Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act. Section 2.3 Reports by the Guarantee Trustee. Within 60 days after May 15 each year, commencing May 15, 2006, the Guarantee Trustee shall provide to the Holders such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. If this Guarantee Agreement shall have been qualified under the Trust Indenture Act, the Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. Section 2.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall provide to the Guarantee Trustee and the Holders such documents, reports and information, if any, as required by Section 314 of the Trust Indenture Act and the compliance certificate required by Section 314 of the Trust Indenture Act, in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act, provided that such documents, reports and information shall be required to be provided to the Securities and 5 Exchange Commission only if this Guarantee Agreement shall have been qualified under the Trust Indenture Act. Section 2.5 Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.6 Events of Default; Waiver. The Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its consequences, other than an Event of Default arising from the nonpayment of amounts that shall have become due by the terms of this Guarantee Agreement. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Section 2.7 Event of Default; Notice. (a) The Guarantee Trustee shall, within 30 days after the occurrence of an Event of Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notice of any such Event of Default known to the Guarantee Trustee, unless such Event of Default has been cured before the giving of such notice, provided that, except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders. (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer charged with the administration of this Guarantee Agreement shall have obtained written notice, of such Event of Default. Section 2.8 Conflicting Interests. The Trust Agreement and the Indenture shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. 6 ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE Section 3.1 Powers and Duties of the Guarantee Trustee. (a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Guarantee Trustee hereunder. The right, title and interest of the Guarantee Trustee, as such, hereunder shall automatically vest in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1), and no implied covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee Agreement (including pursuant to Section 2.1), and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1); and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee Agreement (but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee 7 Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement); (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in Accreted Liquidation Amount of the Trust Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) no provision of this Guarantee Agreement shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee Agreement or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not therein expressly so provided, every provision of this Guarantee Agreement relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section. Section 3.2 Certain Rights of Guarantee Trustee. (a) Subject to the provisions of Section 3.1: (i) The Guarantee Trustee may rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers' Certificate unless otherwise prescribed herein. (iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request from the Guarantee Trustee, shall be promptly delivered by the Guarantor. 8 (iv) The Guarantee Trustee may consult with legal counsel, and the advice or opinion of such legal counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or opinion. Such legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may be one of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction. (v) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder unless such Holder shall have provided to the Guarantee Trustee such adequate security and indemnity satisfactory to it against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; nothing contained herein shall, however, relieve the Guarantee Trustee of the obligation, upon the occurrence of an Event of Default (that has not been cured or waived) to exercise such of the rights and powers vested in it by this Guarantee Agreement, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (vi) The Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Guarantor and shall incur no liability of any kind by reason of such inquiry or investigation. (vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care hereunder. (viii) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and shall not be liable to any Person for so refraining, and (C) shall be protected in acting in accordance with such instructions. (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable 9 law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to act in accordance with such power and authority. (c) The recitals contained herein and in the Trust Preferred Securities and the Trust Agreement shall be taken as the statements of the Guarantor and the Trust, respectively, and the Guarantee Trustee assumes no responsibility for this correctness. The Guarantee Trustee makes no representations as to the validity or sufficiency of this Guarantee Agreement, the Guarantee or the Trust Preferred Securities. Section 3.3 Compensation; Indemnity; Fees. The Guarantor agrees: (a) to pay to the Guarantee Trustee from time to time such reasonable compensation for all services rendered by it hereunder as may be agreed by the Guarantor and the Guarantee Trustee from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Guarantee Trustee in accordance with any provision of this Guarantee Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or bad faith; and (c) to indemnify the Guarantee Trustee, any Affiliate of the Guarantee Trustee and any officer, director, shareholder, employee, representative or agent of the Guarantee Trustee (each, an "Indemnified Person") for, and to hold each Indemnified Person harmless against, any loss, liability, claim, damage or expense incurred without negligence, willful misconduct or bad faith on the part of the Indemnified Person, arising out of or in connection with the acceptance or administration of this Guarantee Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any amount due to it under this Guarantee Agreement. The provisions of this Section 3.3 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. 10 ARTICLE IV GUARANTEE TRUSTEE Section 4.1 Guarantee Trustee; Eligibility. (a) There shall at all times be a Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000, and shall be a Person meeting the requirements of Section 310(a) of the Trust Indenture Act. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then, for the purposes of this Section 4.1 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2. (c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee. (a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or removed at any time by the action of the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities delivered to the Guarantee Trustee and the Guarantor (i) for cause or (ii) if a Debenture Event of Default (as defined in the Trust Agreement) shall have occurred and be continuing at any time. (b) Subject to Section 4.2(c), the Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by giving written notice thereof to the Holders and the Guarantor and by appointing a successor Guarantee Trustee, which successor shall be acceptable to the Guarantor. The Guarantee Trustee shall appoint a successor by requesting from at least three Persons meeting the requirements of Section 4.1(a) their expenses and charges to serve as the Guarantee Trustee, and selecting the Person who agrees to the lowest expenses and charges. (c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee Trustee shall have been appointed and shall have accepted such appointment. No removal or resignation of a Guarantee Trustee shall be effective until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor and, in the case of any resignation, the resigning Guarantee Trustee. 11 (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 60 days after delivery to the Holders and the Guarantor of a notice of resignation, the resigning Guarantee Trustee may petition, at the expense of the Guarantor, any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. (e) If a resigning Guarantee Trustee shall fail to appoint a successor, or if a Guarantee Trustee shall be removed or become incapable of acting as Guarantee Trustee and a replacement shall not be appointed prior to such resignation or removal, or if a vacancy shall occur in the office of Guarantee Trustee for any cause, the Holders of the Trust Preferred Securities, by the action of the Holders of record of not less than 25% in aggregate Accreted Liquidation Amount (as defined in the Trust Agreement) of the Trust Preferred Securities then Outstanding (as defined in the Trust Agreement) delivered to such Guarantee Trustee, may appoint a Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee shall have been so appointed by the Holders of the Trust Preferred Securities and accepted appointment, any Holder, on behalf of such Holder and all others similarly situated, or any other Guarantee Trustee, may petition any court of competent jurisdiction for the appointment of a successor Guarantee Trustee. ARTICLE V GUARANTEE Section 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Trust may have or assert, except the defense of payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Trust to pay such amounts to the Holders. Section 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 5.3 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: 12 (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Trust of any express or implied agreement, covenant, term or condition relating to the Trust Preferred Securities to be performed or observed by the Trust; (b) the extension of time for the payment by the Trust of any portion of the Distributions (other than an extension of time for payment of Distributions that results from the extension of any interest payment period on the Debentures as provided in the Indenture), Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Trust Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Trust Preferred Securities; (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Trust Preferred Securities, or any action on the part of the Trust granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Trust or any of the assets of the Trust; (e) any invalidity of, or defect or deficiency in, the Trust Preferred Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment of the underlying obligation), it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing. Section 5.4 Rights of Holders. The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement without first instituting a legal proceeding against the Guarantee Trustee, the Trust or any other Person. 13 Section 5.5 Guarantee of Payment. This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Trust) or upon the distribution of Debentures to Holders as provided in the Trust Agreement. Section 5.6 Subrogation. The Guarantor shall be subrogated to all rights (if any) of the Holders against the Trust in respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. Section 5.7 Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Trust with respect to the Trust Preferred Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof. ARTICLE VI COVENANTS AND SUBORDINATION Section 6.1 Subordination. The obligations of the Guarantor under this Guarantee Agreement will constitute unsecured obligations of the Guarantor and will rank subordinate and junior in right of payment to all Senior Debt of the Guarantor to the extent and in the manner set forth in the Indenture with respect to the Debt Securities (as defined therein), and the provisions of Article XV of the Base Indenture as modified by Section 6.1 of the Indenture Supplement will apply, mutatis mutandis, to the obligations of the Guarantor hereunder. The obligations of the Guarantor hereunder do not constitute Senior Debt of the Guarantor. Section 6.2 Pari Passu Guarantees. The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with the obligations of the Guarantor under (i) any similar guarantee agreements issued by the Guarantor on behalf of the holders of preferred or capital securities issued by any statutory trust, (ii) the Indenture and the Debt Securities (as defined therein) issued thereunder, (iii) any expense agreements entered into by the Guarantor in connection with the offering of preferred or capital 14 securities by any statutory trust, and (iv) any other security, guarantee or other agreement or obligation that is expressly stated to rank pari passu with the obligations of the Guarantor under this Guarantee Agreement or with any obligation that ranks pari passu with the obligations of the Guarantor under this Guarantee Agreement. Section 6.3 Guarantor Election to End Subordination. The Guarantor may elect, at any time effective on or after the Stock Purchase Date, including in connection with a remarketing of the Trust Preferred Securities that its obligations hereunder shall be senior obligations instead of subordinated obligations, in which case the provisions of Section 6.1 hereof shall thereafter no longer apply to the obligations of Guarantor under this Guarantee Agreement. The Guarantor shall give the Guarantee Trustee notice of any such election not later than the effective time, and shall promptly issue a press release through Bloomberg Business News or other reasonable means of distribution. ARTICLE VII TERMINATION Section 7.1 Termination. This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full payment of the Redemption Price of all Trust Preferred Securities, (ii) the distribution of Debentures to the Holders in exchange for all of the Trust Preferred Securities or (iii) full payment of the amounts payable in accordance with Article IX of the Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder is required to repay any sums paid with respect to Trust Preferred Securities or this Guarantee Agreement. ARTICLE VIII MISCELLANEOUS Section 8.1 Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Trust Preferred Securities then outstanding. Except in connection with a consolidation, merger or sale involving the Guarantor that is permitted under Article X of the Base Indenture and pursuant to which the successor or assignee agrees in writing to perform the Guarantor's obligations hereunder, the Guarantor shall not assign its obligations hereunder, and any purported assignment other than in accordance with this provision shall be void. Section 8.2 Amendments. Except with respect to any changes that do not adversely affect the rights of the Holders in any material respect (in which case no consent of the Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of not less than a 15 Majority in Accreted Liquidation Amount of the Trust Preferred Securities. The provisions of Article VI of the Trust Agreement concerning meetings of the Holders shall apply to the giving of such approval. Section 8.3 Notices. Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by first class mail as follows: (a) if given to the Guarantor, to the address or telecopy number set forth below or such other address or facsimile number as the Guarantor may give notice to the Guarantee Trustee and the Holders: MetLife, Inc. 27-01 Queens Plaza North Long Island City, New York 11101 Attention: Treasurer Facsimile: (212) 578-0266 (b) if given to the Guarantee Trustee, to the address or telecopy number set forth below or such other address or facsimile number as the Guarantee Trustee may give notice to the Guarantor and Holders: J.P. Morgan Trust Company, National Association Worldwide Securities Services 4 New York Plaza, 15th Floor New York, NY 10004 Attention: Worldwide Securities Services Telephone: (212) 623-5233 Facsimile: (212) 623-6215 with a copy to: MetLife Capital Trust II c/o Chase Bank USA, National Association 500 Stanton Christiana Road 3rd Floor/OPS4 Newark, Delaware 19713 Attention: Institutional Trust Services Facsimile: (302) 552-6280 (c) if given to any Holder, at the address set forth on the books and records of the Trust. All notices hereunder shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address 16 of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. Section 8.4 Benefit. This Guarantee Agreement is solely for the benefit of the Holders and is not separately transferable from the Trust Preferred Securities. Section 8.5 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 8.6 Counterparts. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Guarantee Agreement as of the day and year first above written. METLIFE, INC., as Guarantor By: ___________________________________________________ Name: Title: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Guarantee Trustee By: ___________________________________________________ Name: Title: 17 EX-4.19 9 y10123exv4w19.txt FORM OF GUARANTEE AGREEMENT Exhibit 4.19 ================================================================================ GUARANTEE AGREEMENT by and between METLIFE, INC., as Guarantor and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Guarantee Trustee relating to METLIFE CAPITAL TRUST III Dated as of June 21, 2005 ================================================================================ METLIFE, INC. Reconciliation and tie between Trust Indenture Act of 1939 and Guarantee Agreement, dated as of June 21, 2005
Trust Indenture Act Section Guarantee Section - --------------- ----------------- Section 310(a) ............................................... 4.1(a) (b) ............................................... 2.8, 4.1(c) (c) ............................................... Not applicable Section 311(a) ............................................... 2.2(b) (b) ............................................... 2.2(b) (c) ............................................... Not applicable Section 312(a) ............................................... 2.2(a) (b) ............................................... 2.2(b) Section 313 ............................................... 2.3 Section 314(a) ............................................... 2.4 (b) ............................................... Not applicable (c) ............................................... 2.5 (d) ............................................... Not applicable (e) ............................................... 1.1, 2.5, 3.2 (f) ............................................... 2.1, 3.2 Section 315(a) ............................................... 3.1(d) (b) ............................................... 2.7 (c) ............................................... 3.1(c) (d) ............................................... 3.1(d) (e) ............................................... 2.1 Section 316(a) ............................................... 1.1, 2.6, 5.4 (b) ............................................... 5.4 (c) ............................................... 2.1 Section 317(a) ............................................... 2.1 (b) ............................................... 2.1 Section 318(a) ............................................... 2.1 (b) ............................................... 2.1 (c) ............................................... 2.1
Note: This reconciliation and tie shall not, for any purpose be deemed to be part of the Guarantee Agreement. 2 TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS Section 1.1 Definitions....................................................... 1 ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application.................................. 5 Section 2.2 List of Holders................................................... 5 Section 2.3 Reports by the Guarantee Trustee.................................. 5 Section 2.4 Periodic Reports to the Guarantee Trustee......................... 5 Section 2.5 Evidence of Compliance with Conditions Precedent.................. 6 Section 2.6 Events of Default; Waiver......................................... 6 Section 2.7 Event of Default; Notice.......................................... 6 Section 2.8 Conflicting Interests............................................. 6 ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE Section 3.1 Powers and Duties of the Guarantee Trustee........................ 7 Section 3.2 Certain Rights of Guarantee Trustee............................... 8 Section 3.3 Compensation; Indemnity; Fees..................................... 10 ARTICLE IV GUARANTEE TRUSTEE Section 4.1 Guarantee Trustee; Eligibility.................................... 10 Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee..... 11 ARTICLE V GUARANTEE Section 5.1 Guarantee......................................................... 12 Section 5.2 Waiver of Notice and Demand....................................... 12 Section 5.3 Obligations Not Affected.......................................... 12 Section 5.4 Rights of Holders................................................. 13 Section 5.5 Guarantee of Payment.............................................. 13 Section 5.6 Subrogation....................................................... 13 Section 5.7 Independent Obligations........................................... 14
i TABLE OF CONTENTS (continued)
PAGE ARTICLE VI COVENANTS AND SUBORDINATION Section 6.1 Subordination..................................................... 14 Section 6.2 Pari Passu Guarantees............................................. 14 Section 6.3 Guarantor Election to End Subordination........................... 14 ARTICLE VII TERMINATION Section 7.1 Termination....................................................... 15 ARTICLE VIII MISCELLANEOUS Section 8.1 Successors and Assigns............................................ 15 Section 8.2 Amendments........................................................ 15 Section 8.3 Notices........................................................... 15 Section 8.4 Benefit........................................................... 16 Section 8.5 Governing Law..................................................... 16 Section 8.6 Counterparts...................................................... 16
ii GUARANTEE AGREEMENT, dated as of June 21, 2005 (the "Guarantee Agreement"), between MetLife, Inc., a Delaware corporation (the "Guarantor"), having its principal executive offices at 200 Park Avenue, New York, New York 10166, and J.P. Morgan Trust Company, National Association, a national banking association, as trustee (the "Guarantee Trustee"), for the benefit of the Holders from time to time of the Trust Preferred Securities of METLIFE CAPITAL TRUST III, a Delaware statutory trust (the "Trust"). RECITALS WHEREAS, pursuant to an Amended and Restated Declaration of Trust, of even date herewith (the "Trust Agreement"), among MetLife, Inc., as Sponsor, the Property Trustee, the Delaware Trustee, and the Administrative Trustees (each as named therein) and the holders from time to time of undivided beneficial ownership interests in the assets of the Trust, the Trust is issuing $1,035,000,000 aggregate Initial Liquidation Amount (as defined in the Trust Agreement) of its Trust Preferred Securities having the terms set forth in the Trust Agreement; and WHEREAS, the Trust Preferred Securities will be issued by the Trust, and the proceeds thereof, together with the proceeds from the issuance of the Trust's Common Securities, will be used to purchase the Debentures, which Debentures will be deposited with J.P. Morgan Trust Company, National Association, as Property Trustee under the Trust Agreement, as trust assets; and WHEREAS, as an incentive for the Holders to purchase the Trust Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth herein, to pay to the Holders of the Trust Preferred Securities the Guarantee Payments and to make certain other payments on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the purchase of Trust Preferred Securities by each Holder, which purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders from time to time. ARTICLE I DEFINITIONS Section 1.1 Definitions. For all purposes of this Guarantee Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) The terms defined in this Article I have the meanings assigned to them in this Article I, and include the plural as well as the singular; (b) All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (c) The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation;" (d) All accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (e) Unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Guarantee Agreement; and (f) The words "hereby," "herein," "hereof" and "hereunder" and other words of similar import refer to this Guarantee Agreement as a whole and not to any particular Article, Section or other subdivision. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authorized Officer" of any Person means any executive officer of such Person or any person authorized by or pursuant to a resolution of the Board of Directors (or equivalent body) of such Person. "Base Indenture" has the meaning specified in the Trust Agreement. "Board of Directors" means the board of directors of the Guarantor or any committee of the board of directors of the Guarantor, comprised of one or more members of the board of directors of the Guarantor or officers of the Guarantor, or both. "Common Securities" has the meaning specified in the Trust Agreement. "Debentures" has the meaning specified in the Trust Agreement. "Distributions" has the meaning specified in the Trust Agreement. "Event of Default" means (i) a default by the Guarantor in any of its payment obligations under this Guarantee Agreement; or (ii) a default by the Guarantor in any other obligation hereunder that remains unremedied for 30 days. "Guarantee Agreement" means this Guarantee Agreement, as modified, amended or supplemented from time to time. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Trust Preferred Securities, to the extent not paid or made by or on behalf of the Trust: (i) any accumulated and unpaid Distributions required to be paid on the Trust Preferred Securities, to the extent the Trust shall have funds on hand available therefor at such time; (ii) the Redemption Price with respect to any Trust Preferred Securities called for 2 redemption by the Trust, to the extent the Trust shall have funds on hand available therefor at such time; and (iii) upon a voluntary or involuntary dissolution, winding-up or liquidation of the Trust, other than in connection with the distribution of Debentures to the Holders or the redemption of the Trust Preferred Securities, the lesser of (a) the Liquidation Distribution with respect to the Trust Preferred Securities, to the extent that the Trust shall have funds on hand available therefor at such time, and (b) the amount of assets of the Trust remaining available for distribution to Holders on liquidation of the Trust. "Guarantee Trustee" means J.P. Morgan Trust Company, National Association, solely in its capacity as Guarantee Trustee and not in its individual capacity, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement, and thereafter means each such Successor Guarantee Trustee. "Guarantor" has the meaning specified in the first paragraph of this Guarantee Agreement. "Holder" means any Holder (as defined in the Trust Agreement) of any Trust Preferred Securities; provided, however, that in determining whether the Holders of the requisite percentage of Trust Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee. "Indenture" has the meaning specified in the Trust Agreement. "Indenture Supplement" has the meaning specified in the Trust Agreement. "Liquidation Distribution" has the meaning specified in the Trust Agreement. "List of Holders" has the meaning specified in Section 2.2(a). "Majority in Accreted Liquidation Amount of the Trust Preferred Securities" has the meaning specified in the Trust Agreement. "Officers' Certificate" means, with respect to any Person, a certificate signed by any two Authorized Officers of such person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement shall include: (a) a statement by each officer signing the Officers' Certificate that such officer has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Officers' Certificate; (c) a statement that each officer has made such examination or investigation as, in each such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and 3 (d) a statement as to whether, in the opinion of each officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, statutory or business trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Redemption Price" has the meaning set forth in the Trust Agreement. "Responsible Officer" means, with respect to the Guarantee Trustee, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust Officer or any other officer of the corporate trust department of the Guarantee Trustee and also means, with respect to a particular matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Senior Debt" has the meaning set forth in Section 7.1 of the Indenture Supplement. "Trust Preferred Securities" has the meaning specified in the Trust Agreement. "Stock Purchase Date" has the meaning specified in the Stock Purchase Contract Agreement, dated as of the date hereof, among the Guarantor and J.P. Morgan Trust Company, National Association, as Stock Purchase Contract Agent. "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1. "Trust" has the meaning specified in the first paragraph of this Guarantee Agreement. "Trust Agreement" means the Amended and Restated Declaration of Trust of the Trust referred to in the recitals to this Guarantee Agreement, as modified, amended or supplemented from time to time. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended as in force at the date as of which this Guarantee Agreement was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended. "Vice President," when used with respect to the Guarantor, means any duly appointed vice president, whether or not designated by a number or a word or words added before or after the title "vice president." 4 ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application. The Trust Indenture Act shall apply as a matter of contract to this Guarantee Agreement for purposes of interpretation, construction and defining the rights and obligations hereunder, and this Guarantee Agreement, the Guarantor and the Guarantee Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Guarantee Agreement were qualified under the Trust Indenture Act on the date hereof. If and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. Section 2.2 List of Holders. (a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a) semi-annually, on or before June 30 and December 31 of each year, a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders (a "List of Holders") as of a date not more than 15 days prior to the delivery thereof, and (b) at such other times as the Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Guarantor and has not otherwise been received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with the requirements of Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act. Section 2.3 Reports by the Guarantee Trustee. Within 60 days after May 15 each year, commencing May 15, 2006, the Guarantee Trustee shall provide to the Holders such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. If this Guarantee Agreement shall have been qualified under the Trust Indenture Act, the Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. Section 2.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall provide to the Guarantee Trustee and the Holders such documents, reports and information, if any, as required by Section 314 of the Trust Indenture Act and the compliance certificate required by Section 314 of the Trust Indenture Act, in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act, provided that such documents, reports and information shall be required to be provided to the Securities and 5 Exchange Commission only if this Guarantee Agreement shall have been qualified under the Trust Indenture Act. Section 2.5 Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.6 Events of Default; Waiver. The Holders of at least a Majority in Accreted Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its consequences, other than an Event of Default arising from the nonpayment of amounts that shall have become due by the terms of this Guarantee Agreement. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Section 2.7 Event of Default; Notice. (a) The Guarantee Trustee shall, within 30 days after the occurrence of an Event of Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notice of any such Event of Default known to the Guarantee Trustee, unless such Event of Default has been cured before the giving of such notice, provided that, except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders. (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer charged with the administration of this Guarantee Agreement shall have obtained written notice, of such Event of Default. Section 2.8 Conflicting Interests. The Trust Agreement and the Indenture shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. 6 ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE Section 3.1 Powers and Duties of the Guarantee Trustee. (a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Guarantee Trustee hereunder. The right, title and interest of the Guarantee Trustee, as such, hereunder shall automatically vest in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1), and no implied covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee Agreement (including pursuant to Section 2.1), and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1); and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee Agreement (but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee 7 Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement); (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in Accreted Liquidation Amount of the Trust Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) no provision of this Guarantee Agreement shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee Agreement or adequate indemnity against such risk or liability is not reasonably assured to it. (e) Whether or not therein expressly so provided, every provision of this Guarantee Agreement relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section. Section 3.2 Certain Rights of Guarantee Trustee. (a) Subject to the provisions of Section 3.1: (i) The Guarantee Trustee may rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers' Certificate unless otherwise prescribed herein. (iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request from the Guarantee Trustee, shall be promptly delivered by the Guarantor. 8 (iv) The Guarantee Trustee may consult with legal counsel, and the advice or opinion of such legal counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or opinion. Such legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may be one of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction. (v) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder unless such Holder shall have provided to the Guarantee Trustee such adequate security and indemnity satisfactory to it against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; nothing contained herein shall, however, relieve the Guarantee Trustee of the obligation, upon the occurrence of an Event of Default (that has not been cured or waived) to exercise such of the rights and powers vested in it by this Guarantee Agreement, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (vi) The Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Guarantor and shall incur no liability of any kind by reason of such inquiry or investigation. (vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care hereunder. (viii) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and shall not be liable to any Person for so refraining, and (C) shall be protected in acting in accordance with such instructions. (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable 9 law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to act in accordance with such power and authority. (c) The recitals contained herein and in the Trust Preferred Securities and the Trust Agreement shall be taken as the statements of the Guarantor and the Trust, respectively, and the Guarantee Trustee assumes no responsibility for this correctness. The Guarantee Trustee makes no representations as to the validity or sufficiency of this Guarantee Agreement, the Guarantee or the Trust Preferred Securities. Section 3.3 Compensation; Indemnity; Fees. The Guarantor agrees: (a) to pay to the Guarantee Trustee from time to time such reasonable compensation for all services rendered by it hereunder as may be agreed by the Guarantor and the Guarantee Trustee from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Guarantee Trustee in accordance with any provision of this Guarantee Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or bad faith; and (c) to indemnify the Guarantee Trustee, any Affiliate of the Guarantee Trustee and any officer, director, shareholder, employee, representative or agent of the Guarantee Trustee (each, an "Indemnified Person") for, and to hold each Indemnified Person harmless against, any loss, liability, claim, damage or expense incurred without negligence, willful misconduct or bad faith on the part of the Indemnified Person, arising out of or in connection with the acceptance or administration of this Guarantee Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any amount due to it under this Guarantee Agreement. The provisions of this Section 3.3 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. 10 ARTICLE IV GUARANTEE TRUSTEE Section 4.1 Guarantee Trustee; Eligibility. (a) There shall at all times be a Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000, and shall be a Person meeting the requirements of Section 310(a) of the Trust Indenture Act. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then, for the purposes of this Section 4.1 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2. (c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee. (a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or removed at any time by the action of the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities delivered to the Guarantee Trustee and the Guarantor (i) for cause or (ii) if a Debenture Event of Default (as defined in the Trust Agreement) shall have occurred and be continuing at any time. (b) Subject to Section 4.2(c), the Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by giving written notice thereof to the Holders and the Guarantor and by appointing a successor Guarantee Trustee, which successor shall be acceptable to the Guarantor. The Guarantee Trustee shall appoint a successor by requesting from at least three Persons meeting the requirements of Section 4.1(a) their expenses and charges to serve as the Guarantee Trustee, and selecting the Person who agrees to the lowest expenses and charges. (c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee Trustee shall have been appointed and shall have accepted such appointment. No removal or resignation of a Guarantee Trustee shall be effective until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor and, in the case of any resignation, the resigning Guarantee Trustee. 11 (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 60 days after delivery to the Holders and the Guarantor of a notice of resignation, the resigning Guarantee Trustee may petition, at the expense of the Guarantor, any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. (e) If a resigning Guarantee Trustee shall fail to appoint a successor, or if a Guarantee Trustee shall be removed or become incapable of acting as Guarantee Trustee and a replacement shall not be appointed prior to such resignation or removal, or if a vacancy shall occur in the office of Guarantee Trustee for any cause, the Holders of the Trust Preferred Securities, by the action of the Holders of record of not less than 25% in aggregate Accreted Liquidation Amount (as defined in the Trust Agreement) of the Trust Preferred Securities then Outstanding (as defined in the Trust Agreement) delivered to such Guarantee Trustee, may appoint a Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee shall have been so appointed by the Holders of the Trust Preferred Securities and accepted appointment, any Holder, on behalf of such Holder and all others similarly situated, or any other Guarantee Trustee, may petition any court of competent jurisdiction for the appointment of a successor Guarantee Trustee. ARTICLE V GUARANTEE Section 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Trust may have or assert, except the defense of payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Trust to pay such amounts to the Holders. Section 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 5.3 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: 12 (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Trust of any express or implied agreement, covenant, term or condition relating to the Trust Preferred Securities to be performed or observed by the Trust; (b) the extension of time for the payment by the Trust of any portion of the Distributions (other than an extension of time for payment of Distributions that results from the extension of any interest payment period on the Debentures as provided in the Indenture), Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Trust Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Trust Preferred Securities; (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Trust Preferred Securities, or any action on the part of the Trust granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Trust or any of the assets of the Trust; (e) any invalidity of, or defect or deficiency in, the Trust Preferred Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment of the underlying obligation), it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing. Section 5.4 Rights of Holders. The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in Accreted Liquidation Amount of the Trust Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement without first instituting a legal proceeding against the Guarantee Trustee, the Trust or any other Person. 13 Section 5.5 Guarantee of Payment. This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Trust) or upon the distribution of Debentures to Holders as provided in the Trust Agreement. Section 5.6 Subrogation. The Guarantor shall be subrogated to all rights (if any) of the Holders against the Trust in respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. Section 5.7 Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Trust with respect to the Trust Preferred Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof. ARTICLE VI COVENANTS AND SUBORDINATION Section 6.1 Subordination. The obligations of the Guarantor under this Guarantee Agreement will constitute unsecured obligations of the Guarantor and will rank subordinate and junior in right of payment to all Senior Debt of the Guarantor to the extent and in the manner set forth in the Indenture with respect to the Debt Securities (as defined therein), and the provisions of Article XV of the Base Indenture as modified by Section 6.1 of the Indenture Supplement will apply, mutatis mutandis, to the obligations of the Guarantor hereunder. The obligations of the Guarantor hereunder do not constitute Senior Debt of the Guarantor. Section 6.2 Pari Passu Guarantees. The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with the obligations of the Guarantor under (i) any similar guarantee agreements issued by the Guarantor on behalf of the holders of preferred or capital securities issued by any statutory trust, (ii) the Indenture and the Debt Securities (as defined therein) issued thereunder, (iii) any expense agreements entered into by the Guarantor in connection with the offering of preferred or capital 14 securities by any statutory trust, and (iv) any other security, guarantee or other agreement or obligation that is expressly stated to rank pari passu with the obligations of the Guarantor under this Guarantee Agreement or with any obligation that ranks pari passu with the obligations of the Guarantor under this Guarantee Agreement. Section 6.3 Guarantor Election to End Subordination. The Guarantor may elect, at any time effective on or after the Stock Purchase Date, including in connection with a remarketing of the Trust Preferred Securities that its obligations hereunder shall be senior obligations instead of subordinated obligations, in which case the provisions of Section 6.1 hereof shall thereafter no longer apply to the obligations of Guarantor under this Guarantee Agreement. The Guarantor shall give the Guarantee Trustee notice of any such election not later than the effective time, and shall promptly issue a press release through Bloomberg Business News or other reasonable means of distribution. ARTICLE VII TERMINATION Section 7.1 Termination. This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full payment of the Redemption Price of all Trust Preferred Securities, (ii) the distribution of Debentures to the Holders in exchange for all of the Trust Preferred Securities or (iii) full payment of the amounts payable in accordance with Article IX of the Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder is required to repay any sums paid with respect to Trust Preferred Securities or this Guarantee Agreement. ARTICLE VIII MISCELLANEOUS Section 8.1 Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Trust Preferred Securities then outstanding. Except in connection with a consolidation, merger or sale involving the Guarantor that is permitted under Article X of the Base Indenture and pursuant to which the successor or assignee agrees in writing to perform the Guarantor's obligations hereunder, the Guarantor shall not assign its obligations hereunder, and any purported assignment other than in accordance with this provision shall be void. Section 8.2 Amendments. Except with respect to any changes that do not adversely affect the rights of the Holders in any material respect (in which case no consent of the Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of not less than a 15 Majority in Accreted Liquidation Amount of the Trust Preferred Securities. The provisions of Article VI of the Trust Agreement concerning meetings of the Holders shall apply to the giving of such approval. Section 8.3 Notices. Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by first class mail as follows: (a) if given to the Guarantor, to the address or telecopy number set forth below or such other address or facsimile number as the Guarantor may give notice to the Guarantee Trustee and the Holders: MetLife, Inc. 27-01 Queens Plaza North Long Island City, New York 11101 Attention: Treasurer Facsimile: (212) 578-0266 (b) if given to the Guarantee Trustee, to the address or telecopy number set forth below or such other address or facsimile number as the Guarantee Trustee may give notice to the Guarantor and Holders: J.P. Morgan Trust Company, National Association Worldwide Securities Services 4 New York Plaza, 15th Floor New York, NY 10004 Attention: Worldwide Securities Services Telephone: (212) 623-5233 Facsimile: (212) 623-6215 with a copy to: MetLife Capital Trust III c/o Chase Bank USA, National Association 500 Stanton Christiana Road 3rd Floor/OPS4 Newark, Delaware 19713 Attention: Institutional Trust Services Facsimile: (302) 552-6280 (c) if given to any Holder, at the address set forth on the books and records of the Trust. All notices hereunder shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address 16 of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. Section 8.4 Benefit. This Guarantee Agreement is solely for the benefit of the Holders and is not separately transferable from the Trust Preferred Securities. Section 8.5 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 8.6 Counterparts. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Guarantee Agreement as of the day and year first above written. METLIFE, INC., as Guarantor By: --------------------------------- Name: Title: J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Guarantee Trustee By: --------------------------------- Name: Title: 17 -----END PRIVACY-ENHANCED MESSAGE-----