EXHIBIT 4.9
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COMMON SECURITIES GUARANTEE AGREEMENT
Prudential Financial Capital Trust I
Dated as of __________ ___, 2001
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EXHIBIT 4.9
TABLE OF CONTENTS
ARTICLE I INTERPRETATIONS AND DEFINITIONS......................... 2
SECTION 1.1 Interpretations......................................... 2
SECTION 1.2 Definitions............................................. 2
ARTICLE II GUARANTEE............................................... 4
SECTION 2.1 Guarantee............................................... 4
SECTION 2.2 Waiver of Notice and Demand............................. 4
SECTION 2.3 Obligations Not Affected................................ 4
SECTION 2.4 Rights of Holders....................................... 5
SECTION 2.5 Guarantee of Payment.................................... 5
SECTION 2.6 Subrogation............................................. 5
SECTION 2.7 Independent Obligations................................. 6
ARTICLE III TERMINATION............................................. 6
ARTICLE IV MISCELLANEOUS........................................... 6
SECTION 4.1 Successors and Assigns.................................. 6
SECTION 4.2 Amendments.............................................. 6
SECTION 4.3 Notices................................................. 6
SECTION 4.4 Benefit................................................. 7
SECTION 4.5 Governing Law........................................... 7
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EXHIBIT 4.9
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as of
___, 2001, is executed and delivered by Prudential Financial, Inc., a New Jersey
corporation (the "Guarantor") for the benefit of the Holders (as defined herein)
from time to time of the Common Securities (as defined herein) of Prudential
Financial Capital Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ___, 2001, among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof ___ capital securities (___ if the underwriters'
overallotment option to purchase additional capital securities is exercised),
liquidation amount $50 per capital security, having an aggregate liquidation
amount of $___ ($___ if the underwriters' overallotment option to purchase
additional capital securities is exercised), designated the ___% Capital
Securities (the "Capital Securities");
WHEREAS, pursuant to the Declaration, the Issuer is issuing on the date
hereof __ % Common Securities, having an aggregate liquidation amount of $___
(the "Common Securities");
WHEREAS, as incentive for the Holders to purchase the Common Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Common Securities Guarantee, to pay on a senior basis to the
Holders the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Capital Securities Guarantee") in substantially identical terms
to this Common Securities Guarantee for the benefit of the holders of the
Capital Securities, except that if an event of default under the Indenture (as
defined herein), has occurred and is continuing, the rights of Holders of the
Common Securities to receive Guarantee Payments under this Common Securities
Guarantee are subordinated to the rights of holders to receive Guarantee
Payments under the Capital Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Common Securities Guarantee for the benefit of the
Holders.
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ARTICLE I
INTERPRETATIONS AND DEFINITIONS
SECTION 1.1 Interpretations.
In this Common Securities Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Common Securities Guarantee has the
same meaning throughout;
(c) all reference to "the Common Securities Guarantee" or "this Common
Securities Guarantee" are to this Common Securities Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Common Securities Guarantee to Articles and
Sections are to Articles and Sections of this Common Securities Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act or the Declaration has the
same meaning when used in this Common Securities Guarantee, unless otherwise
defined in this Common Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
SECTION 1.2 Definitions.
"Capital Securities" has the meaning specified in the first Recital.
"Capital Securities Guarantee" has the meaning specified in the fourth
Recital.
"Common Securities" has the meaning specified in the second Recital.
"Common Securities Guarantee" has the meaning specified in the introductory
paragraph.
"Debentures" means the series of debentures of the Guarantor designated the
___% Debentures due ___, 2006 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Debenture Issuer" means the Guarantor in its capacity as the issuer of the
Debentures.
"Declaration" has the meaning specified in the first recital.
"Distribution" has the same meaning as given in the Declaration.
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"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Common Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Common Securities, to the extent not paid or
made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Common Securities to the
extent the Issuer shall have funds available therefor, and
(ii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution
of Debentures to the Holders in exchange for Common Securities as provided
in the Declaration), the lesser of (a) the aggregate of the liquidation
amount of such Common Securities plus all accrued and unpaid Distributions
on such Common Securities to and including the date of payment, to the
extent the Issuer shall have funds available therefor, and (b) the amount
of assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (amounts in clause (a) or (b), the "Liquidation
Distribution").
If an event of default under the Indenture has occurred and is
continuing, the rights of Holders of the Common Securities to receive
payments under this Common Securities Guarantee Agreement are subordinated
to the rights of holders of Capital Securities to receive Guarantee
Payments under the Capital Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Common Securities.
"Indenture" means the Indenture dated as of ___, 2001, among the Debenture
Issuer and JPMorgan Chase Bank, as trustee, and any indenture supplemental
thereto pursuant to which certain debt securities of the Debenture Issuer are to
be issued to the Property Trustee of the Issuer.
"Issuer" has the meaning specified in the introductory paragraph.
"Liquidation Distribution" has the meaning specified under "Guarantee
Payments."
"Majority in liquidation amount of the Common Securities" means, except as
provided by the Trust Indenture Act, a vote by Holders of Common Securities,
voting separately as a class, of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on liquidation or
otherwise) of all Common Securities.
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ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee.
(a) The Guarantor irrevocably and unconditionally agrees to pay in full on
a senior unsecured basis to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim that the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
(b) If an event of default under the Indenture has occurred and is
continuing, the rights of Holders of the Common Securities to receive Guarantee
Payments under this Common Securities Guarantee are subordinated to the rights
of holders to receive Guarantee Payments under the Capital Securities Guarantee.
SECTION 2.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Common Securities
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 2.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Common Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(d) any invalidity of, or defect or deficiency in, the Common Securities;
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(e) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(f) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4 Rights of Holders.
(a) The Holders of a Majority in liquidation amount of Common Securities
may by vote, on behalf of the Holders of all of the Common Securities, waive any
past Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Common Securities
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
(b) Any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Common Securities Guarantee, without
first instituting a legal proceeding against the Issuer or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder may directly institute a proceeding against the Guarantor for
enforcement of the Common Securities Guarantee for such payment. The Guarantor
waives any right or remedy to require that any action on this Common Securities
Guarantee be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 2.5 Guarantee of Payment.
This Common Securities Guarantee creates a guarantee of payment and not of
collection.
SECTION 2.6 Subrogation.
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Common Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Common Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Common Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
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SECTION 2.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Common Securities, and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Common Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (f), inclusive, of Section 2.3 hereof.
ARTICLE III
TERMINATION
This Common Securities Guarantee shall terminate upon (i) the distribution
of the Debentures to all Holders or (ii) full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Common Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under the Common Securities or under this Common
Securities Guarantee.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Successors and Assigns.
All guarantees and agreements contained in this Common Securities Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Common
Securities then outstanding.
SECTION 4.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this Common
Securities Guarantee may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of the outstanding Common
Securities. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders apply to the giving of such approval.
SECTION 4.3 Notices.
All notices provided for in this Common Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered by
registered or certified mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Holders):
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Prudential Financial, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Treasurer
(b) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, or mailed by first class mail, postage prepaid except that if a notice
or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 4.4 Benefit.
This Common Securities Guarantee is solely for the benefit of the Holders
and is not separately transferable from the Capital Securities.
SECTION 4.5 Governing Law.
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and year first
above written.
PRUDENTIAL FINANCIAL, INC.
as Guarantor
By: _________________________________
Name:
Title:
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