Exhibit 1.1
METLIFE, INC.
8.00% Debentures due 2005
REMARKETING AGREEMENT
February 12, 2003
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Credit Suisse First Boston LLC ("CSFB") and Xxxxxxx, Sachs &
Co. ("Goldman") (together, the "Remarketing Agents") are undertaking to remarket
8.00% Debentures due May 15, 2005 (principal amount $50 per Debenture) (the
"Debentures"), issued by MetLife, Inc., a Delaware corporation (the "Company"),
pursuant to the Purchase Contract Agreement between the Company and Bank One
Trust Company, N.A., as purchase contract agent (the "Purchase Contract Agent"),
dated as of April 7, 2000 (the "Purchase Contract Agreement"). The Debentures
have been issued pursuant to an Indenture dated as of April 7, 2000 (the "Base
Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"), as supplemented by the First Supplemental Indenture, dated
as of April 7, 2000 ("Supplemental Indenture No. 1," and, together with the Base
Indenture and all other amendments and supplements thereto in effect on the date
hereof, the "Indenture"), between the Company and the Debenture Trustee. The
Debentures were initially issued by the Company to MetLife Capital Trust I, a
statutory business trust formed under Delaware law (the "Trust"), together with
a guarantee on a senior unsecured basis, subject to certain restrictions (the
"Guarantee"), of the 8.00% Capital Securities (stated liquidation amount $50 per
Capital Security) (the "Capital Securities") issued by the Trust pursuant the
terms of the Declaration of Trust dated as of March 3, 2000, among the Company,
as the sponsor, The Bank of New York, as property trustee (the "Property
Trustee"), The Bank of New York (Delaware), as the Delaware trustee (the
"Delaware Trustee"), the administrative trustees named therein and the holders
from time to time of the beneficial interests in the assets of the Trust, as
subsequently amended and restated by the Amended and Restated Declaration of
Trust dated as of April 7, 2000, among such parties (together, the
"Declaration"). Each Capital Security was issued as part of a unit (the "Unit")
that initially also included a contract (a "Purchase Contract") which was issued
pursuant to the Purchase Contract Agreement and under which the holder is
obligated to purchase from the Company on May 15, 2003 a number of shares of
common stock, par value $0.01 per share, of the Company (the "Common Stock"),
equal to the Settlement Rate as set forth in the Purchase Contract Agreement. In
accordance with the Declaration, on February 6, 2003, the Company and the
administrative trustees of the Trust dissolved the Trust and cancelled the
Capital Securities. In accordance with the terms of the Purchase Contract
Agreement, the Debentures were distributed to holders of the Capital Securities.
The debentures constituting a part of the Units have been pledged by the
Purchase Contract Agent, on behalf of the holders of the Units, to The Bank of
New York, as collateral agent (the "Collateral Agent"), pursuant to the Pledge
Agreement, dated as of April 7, 2000 (the "Pledge Agreement"), among the
Company, the Purchase Contract Agent, the Collateral Agent and The Bank of New
York, as custodial agent (the "Custodial Agent") and securities intermediary, to
secure the holders' obligation to purchase Common Stock under the Purchase
Contracts.
Capitalized terms used and not defined in this Remarketing
Agreement shall have the meanings set forth in the Purchase Contract Agreement,
the Pledge Agreement and the Indenture, as the case may be. Unless the context
otherwise
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requires, all references in the Purchase Contract Agreement, the Pledge
Agreement and the Indenture to the Capital Securities shall be deemed to refer
to the Debentures.
The Remarketing (as defined below) of the Debentures is
provided for in the Purchase Contract Agreement. As used in this Remarketing
Agreement, "Transaction Documents" shall mean, collectively, the Purchase
Contract Agreement, the Declaration, the Indenture, the Pledge Agreement and
this Remarketing Agreement; the term "Remarketed Debentures" means the
Debentures subject to the Remarketing as notified to the Remarketing Agent by
the Purchase Contract Agent and the Custodial Agent, on or prior to the first
Business Day prior to the Remarketing Date; the term "Remarketing Procedures"
means the procedures in connection with the Remarketing of the Debentures,
described in the Purchase Contract Agreement, the Pledge Agreement and the
Declaration, as the case may be; the term "Remarketing" means the remarketing of
the Remarketed Debentures pursuant to the Remarketing Procedures; the term
"Remarketing Date" means the third Business Date immediately preceding February
15, 2003.
1. Appointment and Obligations of the Remarketing Agents and Reset
Agents. (a) The Company hereby appoints CSFB and Goldman as exclusive
Remarketing Agents and Reset Agents, and each of CSFB and Goldman, acting
severally and not jointly, hereby accepts appointment as Remarketing Agent and
Reset Agent, for the purpose of (i) Remarketing the Remarketed Debentures on
behalf of the holders thereof, (ii) establishing the Reset Rate (as defined in
the Declaration) for the Debentures in connection with the Remarketing, and
(iii) performing such other duties as are assigned to the Remarketing Agents and
Reset Agents in the Remarketing Procedures and the Declaration, all in
accordance with and pursuant to the Remarketing Procedures and the Declaration.
(b) The Remarketing Agents agree (i) to use commercially reasonable
best efforts to remarket the Remarketed Debentures tendered or deemed tendered
to the Remarketing Agents in the Remarketing, (ii) to establish the Reset Rate
in accordance with the Declaration and to notify the Company, the Depositary and
the Debenture Trustee promptly of the Reset Rate and (iii) to carry out such
other duties as are assigned to the Remarketing Agents and Reset Agents in the
Remarketing Procedures, all in accordance with the provisions of the Remarketing
Procedures and the Declaration.
(c) On the Remarketing Date, the Remarketing Agents shall use their
commercially reasonable best efforts to remarket, at a price equal to 100.50% of
the Remarketing Value, the Remarketed Debentures tendered or deemed tendered for
purchase.
(d) If, as a result of the efforts described in Section l(b), the
Remarketing Agents determine that they will be able to remarket all Remarketed
Debentures tendered or deemed tendered for purchase at a price of 100.50% of the
Remarketing Value prior to 4:00 P.M., New York City time, on the Remarketing
Date, the Remarketing Agents shall (i) determine the Reset Rate that will enable
them to remarket all Remarketed Debentures tendered or deemed tendered for
Remarketing and (ii) commit to purchase, on a third-day settlement basis, and on
the third Business Day following the Remarketing Date (the "Remarketing Closing
Date"), shall purchase, the Agent-purchased Treasury Consideration.
(e) If the Remarketing Agents cannot remarket the Debentures on the
Remarketing Date, the Remarketing Agents will continue to use their commercially
reasonable best efforts to attempt to remarket the Debentures until the Stock
Purchase Date in accordance with the Remarketing Procedures (each such
remarketing, a "Subsequent Remarketing"), provided that (i) the notice of any
Subsequent Remarketing cannot be given until the Failed Remarketing notice has
been published in accordance with the Remarketing Procedures in respect of any
immediately preceding Failed Remarketing and (ii) the Remarketing Closing Date
in respect of any Subsequent Remarketing must fall no later than on the Business
Day immediately preceding the Stock Purchase Date.
(f) If, by 4:00 P.M., New York City time, on a Remarketing Date
(including a Remarketing Date of any Subsequent Remarketing), the Remarketing
Agents are unable to remarket all Remarketed Debentures tendered or deemed
tendered for purchase, a Failed Remarketing shall be deemed to have occurred,
and the Remarketing Agents shall, on such date, so advise by telephone the
Purchase Contract Agent, the Debenture Trustee, the Company and the Collateral
Agent.
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(g) On the third Business Day following the Failed Remarketing, the
Remarketing Agents shall remit (i) to the Custodial Agent the Remarketed
Debentures comprised of the Separate Debentures, and (ii) to the Collateral
Agent the balance of the Remarketed Debentures.
(h) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agents shall advise, by telephone, the Company, the Purchase
Contract Agent, the Depositary and the Debenture Trustee of the Reset Rate
determined in the Remarketing and the number of Remarketed Debentures sold in
the Remarketing.
(i) In accordance with the Depositary's normal procedures, on the
Remarketing Closing Date, the transactions described above with respect to each
Debenture tendered for purchase and sold in the Remarketing shall be executed
through the Depositary, and the accounts of the respective Depositary
participants shall be debited and credited and such Debentures delivered by
book-entry as necessary to effect purchases and sales of such Debentures.
(j) On the Remarketing Closing Date, the tender and settlement
procedures set forth in this Section 1, including provisions for payment by
purchasers of the Debentures in the Remarketing, shall be subject to
modification to the extent required by the Depositary or if the book-entry
system is no longer available for the Debentures at the time of the Remarketing,
to facilitate the tendering and remarketing of the Debentures in certificated
form. In addition, the Remarketing Agents may modify the settlement procedures
set forth herein in order to facilitate the settlement process.
(k) On the Remarketing Closing Date, the Remarketing Agents shall
remit to the Collateral Agent through the Purchase Contract Agent the
Agent-purchased Treasury Consideration.
(l) On the Remarketing Closing Date, the Remarketing Agents shall
retain as a remarketing fee an amount not exceeding 25 basis points (.25%) in
the aggregate of the total proceeds from the sale of the Remarketed Debentures
and shall remit (i) the portion of the balance attributable to the Separate
Debentures to the holders of the Separate Debentures that were Remarketed
Debentures and (ii) the remaining portion of the balance to the Purchase
Contract Agent for distribution to the holders of the Remarketed Debentures in
accordance with the Purchase Contract Agreement. Holders whose Debentures are
Remarketed pursuant to this Remarketing Agreement will not otherwise be
responsible for the payment of any remarketing fee in connection therewith. In
addition, the Reset Agents shall not be entitled to receive any fee from the
Company, the Holders of Remarketed Debentures or otherwise for acting as Reset
Agents hereunder.
(m) The obligations of the Remarketing Agents to use their
commercially reasonable best efforts hereunder are several and not joint. If
fewer than all of the Debentures are remarketed in accordance with the terms
hereof, the Remarketing shall be deemed to have failed as to all Debentures.
(n) If at any time during the term of this Remarketing Agreement,
any Event of Default (as defined in the Indenture) or event that with the
passage of time or the giving of notice or both would become such an Event of
Default has occurred and is continuing under the Indenture, then the obligations
and duties of the Remarketing Agents and the Reset Agents under this Remarketing
Agreement shall be suspended until such default or event has been cured. The
Company will promptly cause the Debenture Trustee, the Purchase Contract Agent
and the Collateral Agent to give the Remarketing Agents and Reset Agents notice
of all such defaults and events of which such trustee or agent is aware.
2. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees (i) on and as of the date hereof (ii) on
and as of the date the Final Prospectus or any Preliminary Prospectus (each as
defined in Section 2(a) below) are first distributed in connection with the
Remarketing (the "Commencement Date"), (iii) on and as of the Remarketing Date,
and (iv) on and as of the Remarketing Closing Date, that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-61282) under the Securities Act of 1933, as amended (the "Act"), which has
become effective, for the registration under the Act of the Debentures. The
Company meets the requirements for use of Form S-3 under the Act. No stop order
suspending the effectiveness of the registration statement has been issued under
the Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated
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by the Commission, and any request on the part of the Commission for additional
information has been complied with. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement or supplements to the
form of prospectus included in such registration statement relating to the
Debentures and the plan of distribution thereof. Such registration statement,
including the exhibits thereto, as amended at the date of this Remarketing
Agreement, is hereinafter called the "Registration Statement"; such prospectus
in the form in which it appears in the Registration Statement is hereinafter
called the "Base Prospectus"; and such supplemented form of prospectus, in the
form in which it shall first be filed with the Commission pursuant to Rule 424
(including the Base Prospectus as so supplemented), is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Prospectus." Any reference herein to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the date of this
Remarketing Agreement, or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include any document filed
under the Exchange Act after the date of this Remarketing Agreement, or the
issue date of the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus incorporated by reference therein, as the case may be; the
Registration Statement and the prospectuses filed as part of the Registration
Statement as originally filed or as part of any amendment thereto complies, the
Final Prospectus, the Preliminary Prospectus, and any further amendments or
supplements to the Registration Statement will comply when so filed in all
material respects with the Act and the rules thereunder and each Preliminary
Prospectus and the Final Prospectus to be delivered to the Remarketing Agents
for use in connection with the Remarketing will be identical to the
electronically transmitted copies thereof to be filed with the Commission via
the Electronic Data Gathering, Analysis and Retrieval (XXXXX) system, except to
the extent permitted by Regulation S-T. The Company hereby consents to the use
of the Final Prospectus and any Preliminary Prospectus by the Remarketing Agents
in connection with the Remarketing;
(b) The Company has filed with the Commission the Trustee's
Statement of Eligibility and Qualification under the Trust Indenture Act of the
Trustee on Form 305(b)(2) (No. 333-61282) under the Act, which has become
effective, for the registration under the Act of the Debentures.
(c) As of the date hereof, when the Preliminary Prospectus and Final
Prospectus, as the case may be, are first filed or transmitted for filing
pursuant to Rule 424 under the Act, as of the effective date of the Registration
Statement, when, prior to the Remarketing Closing Date, any amendment to the
Registration Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any supplement to
the Preliminary Prospectus or to the Final Prospectus is filed with the
Commission and at the Commencement Date, the Remarketing Date and the
Remarketing Closing Date, (i) the Registration Statement, as amended or
supplemented as of any such time, the Final Prospectus, as amended or
supplemented as of any such time and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the Exchange Act and the
respective rules thereunder, (ii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented as of any such time,
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading and (iii) the Final Prospectus does not
contain and, as amended or supplemented, will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Trustee's Statement of
Eligibility and Qualification under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information relating to the Remarketing Agents or
the Remarketing arrangements furnished in writing to the Company by any
Remarketing Agent expressly for use in the Registration Statement and the Final
Prospectus;
(d) Each document incorporated or deemed to be incorporated by
reference in the Registration Statement and the Final Prospectus, when they
became effective or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the Act or
the Exchange Act, as applicable, and, when
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read together with the other information in the Final Prospectus, at the time
the Registration Statement became effective, at the time the Final Prospectus
was issued and at the Remarketing Closing Date did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
(e) Neither the Company nor any of its subsidiaries listed on Annex
I hereto (the "Significant Subsidiaries" and, individually, a "Significant
Subsidiary") has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final Prospectus, any
loss or interference material to the business of the Company and its Significant
Subsidiaries considered as a whole, other than as described in or contemplated
by the Final Prospectus, from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree; and, since the respective dates as of which information
is given in the Registration Statement or the Base Prospectus, otherwise than as
described or contemplated in the Final Prospectus, there has not been any (i)
material addition, or development involving a prospective material addition, to
the liability of Metropolitan Life Insurance Company ("MetLife") for future
policy benefits, policyholder account balances and other claims, other than in
the ordinary course of business, (ii) material decrease in the surplus of
MetLife or material change in the capital stock or other ownership interests
(other than issuances of common stock upon the exercise of outstanding employee
stock options or pursuant to existing employee compensation plans or on the
conversion or exchange of convertible or exchangeable securities outstanding on
the date hereof) of the Company or any Significant Subsidiary or any material
increase in the long-term debt of the Company or its subsidiaries, considered as
a whole, or (iii) material adverse change, or development involving a
prospective material adverse change, in or affecting the business, financial
position, reserves, surplus, equity or results of operations (in each case
considered either on a statutory accounting or U.S. generally accepted
accounting principles ("GAAP") basis, as applicable) of the Company and its
subsidiaries considered as a whole;
(f) The Company and each Significant Subsidiary has good and
marketable title in fee simple to all material real property and good and
marketable title to all material personal property owned by it, in each case
free and clear of all liens, encumbrances and defects, except such as are
described in the Final Prospectus or such as would not have a material adverse
effect on the business, financial position, equity, reserves, surplus or results
of operations of the Company and its subsidiaries, considered as a whole
("Material Adverse Effect"), and do not materially interfere with the use made
and proposed to be made of such property by the Company or any Significant
Subsidiary, and any material real property and material buildings held under
lease by the Company or any of its subsidiaries are held under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and currently proposed to be made of such
property and buildings by the Company or any Significant Subsidiary;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Final Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification and good
standing, except to the extent that the failure to be so qualified and in good
standing would not have a Material Adverse Effect; there are no subsidiaries of
the Company that are material to the Company considered as a whole which are not
listed on Annex I hereto; and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation and is in good standing
under the laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Final Prospectus ; and each Significant Subsidiary is duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which its ownership
or lease of property or the conduct of its business requires such qualification
and good standing, except to the extent that the failure to be so qualified and
in good standing would not have a Material Adverse Effect;
(h) The Company has the corporate power and authority to execute and
deliver this Remarketing Agreement and to consummate the transactions
contemplated hereby;
(i) The Company has an authorized capitalization as set forth and
described in the Final Prospectus , and all of the issued shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid and nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive
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or other similar rights of any securityholder of the Company; except as
disclosed in the Final Prospectus, there are no outstanding options or warrants
to purchase, or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into or any contracts or
commitments to sell shares of the Company's capital stock or any such options,
rights, warrants, convertible securities or obligations; the description of the
Company's stock option and purchase plans and the options or other rights
granted and exercised thereunder set forth in the Final Prospectus accurately
and fairly describe the information required to be shown with respect to such
plans, arrangements, options and rights; except as disclosed in the Final
Prospectus, there are no rights of any person, corporation or other entity to
require registration of any shares of common stock or any other securities of
the Company in connection with the filing of the Registration Statement and the
sale of the Debentures pursuant to this Remarketing Agreement; and all of the
issued shares of capital stock or other ownership interests of each Significant
Subsidiary have been duly and validly authorized and issued, are fully paid and
nonassessable and (except as described in the Final Prospectus and the exhibits
thereto and except for directors' qualifying shares) are owned directly or
indirectly by the Company free and clear of all liens, encumbrances, equities or
claims;
(j) The Trust has been duly and validly dissolved, the Capital
Securities have been retired and the Debentures have been duly and validly
distributed to holders of the Capital Securities in accordance with terms of the
Declaration, the Purchase Contract Agreement and the Pledge Agreement;
(k) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency having authority
over the Company is required for the entry into this Remarketing Agreement by
the Company, the compliance by the Company with all of the provisions of this
Remarketing Agreement and each Transaction Document to which the Company is a
party, the compliance by the Company with the terms of the Debentures, and the
consummation of the transactions herein or therein contemplated by the Company
or the registration under the Act of the Debentures; except such consents as
have been obtained under the Act, the Exchange Act and the Trust Indenture Act
in connection with the Remarketing pursuant to this Remarketing Agreement;
(l) The Debentures have been duly authorized and have been duly
executed, authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, and are entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, moratorium and other similar laws
relating to or affecting creditors' rights generally and to general principles
of equity; and the Debentures are substantially in the form contemplated by the
Indenture, and the Debentures and the Indenture conform in all material respects
to the descriptions thereof contained in the Final Prospectus;
(m) Each Significant Subsidiary that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation (an
"Insurance Subsidiary") is duly organized and licensed as an insurance company
in its respective jurisdiction of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to be
so licensed or authorized to conduct its business, in each case with such
exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect; except as otherwise described in the Final Prospectus, each
Insurance Subsidiary has all other approvals, orders, consents, authorizations,
licenses, certificates, permits, registrations and qualifications (collectively,
the "Approvals") of and from all insurance regulatory authorities to conduct its
business, with such exceptions as would not have, individually or in the
aggregate, a Material Adverse Effect; there is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or investigation that could
reasonably be expected to lead to any revocation, termination or suspension of
any such Approval, the revocation, termination or suspension of which would
have, individually or in the aggregate, a Material Adverse Effect; and, to the
knowledge of the Company, no insurance regulatory agency or body has issued any
order or decree impairing, restricting or prohibiting the payment of dividends
by any Insurance Subsidiary to its parent which would have, individually or in
the aggregate, a Material Adverse Effect;
(n) The Company and each Significant Subsidiary has all necessary
Approvals of and from, and has made all filings, registrations and declarations
(collectively, the "Filings") with, all insurance regulatory authorities, all
Federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, which are necessary to own,
lease, license and use its properties and assets and to conduct its business in
the manner
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described in the Final Prospectus, except where the failure to have such
Approvals or to make such Filings would not have, individually or in the
aggregate, a Material Adverse Effect; to the knowledge of the Company, the
Company and each Significant Subsidiary is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements, including in
connection with registrations or memberships in self-regulatory organizations,
and all such Approvals and Filings are in full force and effect and neither the
Company nor any Significant Subsidiary has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be expected to result
in the suspension, revocation or limitation of any such Approval or otherwise
impose any limitation on the conduct of the business of the Company or any
Significant Subsidiary, except as described in the Final Prospectus or except
for any such suspension, revocation or limitation which would not have,
individually or in the aggregate, a Material Adverse Effect;
(o) Each Insurance Subsidiary is in compliance with and conducts its
businesses in conformity with all applicable insurance laws and regulations of
its respective jurisdiction of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to it, in each case with
such exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect;
(p) Each Significant Subsidiary which is engaged in the business of
acting as a broker-dealer or an investment advisor (respectively, a
"Broker-Dealer Subsidiary" and an "Investment Advisor Subsidiary") is duly
licensed or registered as a broker-dealer or investment advisor, as the case may
be, in each jurisdiction where it is required to be so licensed or registered to
conduct its business, in each case, with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; each Broker-Dealer
Subsidiary and each Investment Advisor Subsidiary has all other necessary
Approvals of and from all applicable regulatory authorities, including any
self-regulatory organization, to conduct its businesses, in each case with such
exceptions, as would not have, individually or in the aggregate, a Material
Adverse Effect; except as otherwise described in the Final Prospectus, none of
the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has received
any notification from any applicable regulatory authority to the effect that any
additional Approvals from such regulatory authority are needed to be obtained by
such subsidiary in any case where it could be reasonably expected that (x) any
of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in
fact be required either to obtain any such additional Approvals or cease or
otherwise limit engaging in certain business and (y) the failure to have such
Approvals or limiting such business would have a Material Adverse Effect; and
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment advisor
laws and regulations of each jurisdiction which are applicable to such
subsidiary, and has filed all notices, reports, documents or other information
required to be filed thereunder, in each case with such exceptions as would not
have, individually or in the aggregate, a Material Adverse Effect;
(q) The Remarketing, the sale of the Debentures pursuant to this
Remarketing Agreement, and compliance by the Company with all of the provisions
of the Debentures and the Transaction Documents, and the consummation of the
transactions herein and therein contemplated, will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Significant Subsidiaries is subject, or which affects the
validity, performance or consummation of the Remarketing or the transactions
contemplated by the Transaction Documents, nor will such action result in any
violation of the provisions of the certificate of incorporation or by-laws of
the Company or any of its Significant Subsidiaries or any statute or any order,
rule or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties, in each case other than
such breaches, conflicts, violations, or defaults which (other than a violation
of the certificate of incorporation or by-laws or similar organizational
documents of the Company or a Significant Subsidiary), individually or in the
aggregate, would not have a Material Adverse Effect and would not adversely
affect the validity or performance of the Company's obligations under the
Debentures or the validity of the Transaction Documents, and no Approval of or
Filing with any such court or insurance regulatory authority or other
governmental agency or body is required for the issue or sale of the Debentures,
except (i) the registration under the Act of the Debentures, which registration
has become effective and (ii) such Approvals or Filings as may be required under
the Trust Indenture Act or state securities or Blue Sky laws in connection with
the purchase and distribution of the Debentures by the Remarketing Agents;
7
(r) Other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject, challenging the transactions contemplated by this
Remarketing Agreement or which, if determined adversely to the Company or its
subsidiaries, could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or would materially and adversely affect
the ability of the Company to perform its obligations under the Indenture or
this Remarketing Agreement; and, to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(s) Neither the Company nor any Significant Subsidiary is in
violation of any of its certificate of incorporation or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject, which violation or
default would have, individually or in the aggregate, a Material Adverse Effect;
(t) The statements set forth in the Final Prospectus under the
captions "Description of Debt Securities" and "Description of the Remarketed
Debentures", insofar as they purport to constitute a summary of the terms of the
Debentures, under the caption "Plan of Distribution", and under the captions
"Business - Regulation", "Business - Competition" and "Legal Proceedings", which
have been incorporated therein by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 2001, as updated by the Final
Prospectus, insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all material
respects;
(u) The statements set forth in the Final Prospectus under the
caption "Certain U.S. Federal Income Tax Consequences" insofar as they purport
to constitute summaries of matters of United States Federal tax law and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects; and any
other statements with respect to matters of law and regulations or legal
conclusions with respect thereto set forth in the Prospectus are accurate in all
material respects;
(v) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement, the Final Prospectus and any Preliminary Prospectus, together with
the related schedules and notes, comply in all material respects with the
requirements of the Act and the Exchange Act, as applicable, and present fairly
in all material respects the financial position, the results of operations and
the changes in cash flows of such entities in conformity with GAAP at the
respective dates or for the respective periods to which they apply; and such
financial statements and related notes and schedules, if any, have been prepared
in accordance with GAAP consistently applied throughout the periods involved,
except for any normal year-end adjustments and except as described therein;
(w) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(x) Neither the Company nor any Significant Subsidiary is an
"investment company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), and the rules and regulations
thereunder, although certain separate accounts of MetLife and certain Insurance
Subsidiaries are required to register as investment companies under the
Investment Company Act;
(y) This Remarketing Agreement has been duly authorized, executed
and delivered by the Company; and the statements contained in the Final
Prospectus with respect to this Remarketing Agreement, insofar as such
statements purport to describe the provisions hereof, fairly and accurately
describe such provisions in all material respects;
(z) There are no contracts or documents which are required to be
described in the Registration Statement, the Final Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required; and
8
(aa) None of the Company or its subsidiaries or, to the best of
their knowledge, any of their directors, officers or affiliates, has taken or
will take, directly or indirectly, any action designed to, or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Debentures in violation of Regulation M under the Exchange Act.
3. Company Covenants. The Company agrees with each of the Remarketing
Agents:
(a) To prepare a Preliminary Prospectus and a Final Prospectus as
amended and supplemented in relation to the Debentures in a form approved by the
Remarketing Agents and to file timely such Preliminary Prospectus and such Final
Prospectus pursuant to Rule 424(b) under the Act; to make no further amendment
or any supplement to the Registration Statement, the Preliminary Prospectus or
the Final Prospectus as amended or supplemented after the date hereof and prior
to the Remarketing Closing Date for such Debentures unless the Remarketing
Agents shall have had a reasonable opportunity to review and comment upon any
such amendment or supplement prior to any filing thereof; to advise the
Remarketing Agents, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Preliminary Prospectus or the Final Prospectus, as the
case may be, or any amended Preliminary Prospectus or Final Prospectus, as the
case may be, has been filed and to furnish the Remarketing Agents with copies
thereof; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Debentures and, during such same period, to advise the Remarketing Agents,
promptly after it receives notice thereof, of (i) the issuance by the Commission
of any stop order or of any order preventing or suspending the use of the
Preliminary Prospectus or Final Prospectus, as the case may be, (ii) the
suspension of the qualification of Debentures for offering or sale in any
jurisdiction or of the initiation or threatening of any proceeding for any such
purpose, or (iii) any request by the Commission for the amending or
supplementing of the Registration Statement, Preliminary Prospectus or Final
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Preliminary Prospectus or Final Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Remarketing Agents may reasonably request to qualify the Debentures for offering
and sale under the securities laws of such jurisdictions as the Remarketing
Agents may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for so long as
may be necessary to complete the distribution of the Debentures, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise subject;
(c) To furnish the Remarketing Agents with copies of the Preliminary
Prospectus and the Final Prospectus, as the case may be (including as it may be
amended or supplemented), in such quantities as the Remarketing Agents may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Debentures,
and if at such time any event shall have occurred as a result of which the
Preliminary Prospectus or the Final Prospectus, as the case may be, as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Preliminary Prospectus or Final Prospectus, as the case may be, is delivered,
not misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Preliminary Prospectus or the Final
Prospectus, as the case may be, or to file under the Exchange Act any document
incorporated by reference in the Preliminary Prospectus or the Final Prospectus,
as the case may be, in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Remarketing Agents and upon their request to
prepare and furnish without charge to each Remarketing Agent and to any dealer
in securities as many copies as the Remarketing Agents may from time to time
reasonably request of an amended Preliminary Prospectus or Final Prospectus, as
the case may be, or a supplement to the Preliminary Prospectus or the Final
Prospectus, as the case may be, which will correct such statement or omission or
effect such compliance; and the Preliminary Prospectus and the Final Prospectus,
as the case may be, and any amendments or supplements thereto furnished to the
Representatives shall be identical to the
9
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T;
(d) To make generally available to securityholders of the Company as
soon as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date hereof and continuing
to and including the Remarketing Closing Date, not to offer, sell, contract to
sell or otherwise dispose of any securities of the Company (other than pursuant
to employee stock option plans existing, or on the conversion or exchange of
convertible or exchangeable securities outstanding, on the date hereof) which
are substantially similar to the Debentures, without the prior written consent
of the Remarketing Agents, which consent shall not be unreasonably withheld.
4. Fees and Expenses. The Company covenants and agrees with the several
Remarketing Agents that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of counsel and accountants to the
Company in connection with the registration of the Debentures under the Act and
all other expenses in connection with the preparation, printing, filing and
distribution of the Base Prospectus, any Preliminary Prospectus and the Final
Prospectus and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Remarketing Agents and dealers; (ii) the
cost of printing or producing this Remarketing Agreement, any Blue Sky Survey
and any other documents in connection with the offering, purchase, sale and
delivery of the Debentures; (iii) all expenses in connection with the
qualification of the Debentures for offering and sale under state securities
laws and insurance securities laws as provided in Section 3(b) hereof, including
the reasonable fees and disbursements of counsel for the Remarketing Agents in
connection with such qualification and in connection with the Blue Sky Survey;
(iv) the filing fees incident to, and the fees and disbursements of counsel for
the Remarketing Agents in connection with, securing any required review by the
National Association of Securities Dealers, Inc. ("NASD") of the terms of the
sale of the Debentures; (v) any fees charged by securities rating services for
rating the Debentures; (vi) the cost of preparing the Debentures; (vii) the fees
and expenses of any trustee, paying agent or transfer agent and the fees and
disbursements of counsel for any such trustee, paying agent or transfer agent in
connection with this Remarketing Agreement and the Debentures; (viii) any travel
expenses of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of the Debentures; and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder which are not
otherwise specifically provided for in this Section 4.
5. Conditions to Remarketing Agents' Obligations. The obligations of the
Remarketing Agents shall be subject, in their discretion, to the condition that
all representations and warranties and other statements of the Company herein or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof are, at and as of the date hereof,
the Commencement Date, the Remarketing Date and the Remarketing Closing Date,
true and correct, the condition that the Company shall have performed all of its
covenants and other obligations included hereunder and in the other Transaction
Documents to be performed at or before the date hereof, the Commencement Date,
the Remarketing Date and the Remarketing Closing Date, and the following
additional conditions:
(a) (i) the Trust shall have been duly and validly dissolved, the
Capital Securities shall have been cancelled and the Debentures shall have been
duly and validly distributed to the holders of the Capital Securities in
accordance with terms of the Declaration, the Purchase Contract Agreement and
the Pledge Agreement, (ii) the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent, the Company and the Trustee shall have performed their
respective obligations in connection with the Remarketing (or any Subsequent
Remarketing, in the event of a Failed Remarketing) pursuant to the Purchase
Contract Agreement, the Pledge Agreement, the Indenture and this Remarketing
Agreement (including, without limitation, giving the Remarketing Agents notice
of the aggregate principal amount of Debentures to be remarketed no later than
10:00 a.m., New York City time, on the first Business Day prior to February 12,
2003 and concurrently delivering the Debentures to be remarketed to the
Remarketing Agents), (iv) no Event of Default (as defined in the Indenture)
shall have occurred and be continuing, and (v) the satisfaction of the other
conditions set forth in this Remarketing Agreement.
10
(b) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
3(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Remarketing Agents' reasonable satisfaction;
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Transaction Documents, the
Remarketed Debentures, the Debentures, the Final Prospectus, the Registration
Statement and all other legal matters relating to this Remarketing Agreement and
the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel to the Remarketing Agents and Reset Agents, and the
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters;
(d) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Remarketing Agents and Reset Agents, shall have furnished to the Remarketing
Agents and Reset Agents such written opinion or opinions, dated the Remarketing
Closing Date, with respect to the incorporation of the Company, the validity of
the Debentures being delivered on the Remarketing Closing Date, the Registration
Statement and the Final Prospectus, and such other related matters as the
Remarketing Agents and Reset Agents may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(e) Xxxx X. Xxxxxx, Senior Executive Vice-President and General
Counsel of the Company, shall have furnished to the Remarketing Agents his
written opinion, dated the Remarketing Closing Date, in form and substance
reasonably satisfactory to the Remarketing Agents, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus;
(ii) The Company has the corporate power and authority to execute
and deliver this Remarketing Agreement and to consummate the transactions
contemplated hereby and thereby;
(iii) This Remarketing Agreement and the Debentures have been duly
authorized, executed and delivered by the Company;
(iv) The Trust has been duly and validly dissolved, the Capital
Securities have been cancelled and the Debentures have been duly and
validly distributed to the holders of the Capital Securities in accordance
with terms of the Declaration, the Purchase Contract Agreement and the
Pledge Agreement;
(v) The Company has an authorized capitalization as set forth and
described in the Final Prospectus, and all of the issued shares of capital
stock of the Company have been duly authorized and validly issued and are
fully paid and nonassessable; none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company; securityholders of
the Company have no preemptive or other similar rights with respect to the
Debentures arising out of the certificate of incorporation or the by-laws
of the Company or the Delaware General Corporation Law ("DGCL"); except as
disclosed in the Final Prospectus, there are no rights of any person,
corporation or other entity to require registration of any securities in
connection the sale of the Debentures pursuant to this Remarketing
Agreement; the Debentures to be sold pursuant to this Remarketing
Agreement conform in all material respects to the description thereof
contained in the Final Prospectus;
(vi) Each Significant Subsidiary has been duly incorporated and is
validly existing as a corporation and is in good standing under the laws
of its jurisdiction of incorporation, with the corporate power and
authority to own its properties and conduct its business as described in
the Final Prospectus; and all issued shares of capital stock
11
or other ownership interests of each Significant Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable, and
(except as described in the Final Prospectus and except for directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims, other than any
lien, encumbrance, equity or claim which would not have a Material Adverse
Effect;
(vii) The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification, except to the extent that the failure to be so
qualified and in good standing would not have a Material Adverse Effect;
(viii) Each Insurance Subsidiary is duly organized and licensed as
an insurance company in its jurisdiction of incorporation, and is duly
licensed or authorized as an insurer in each other jurisdiction where it
is required to be so licensed or authorized to conduct its business as
described in the Final Prospectus, in each case with such exceptions as
would not have, individually or in the aggregate, a Material Adverse
Effect; except as otherwise described in the Final Prospectus, each
Insurance Subsidiary has all other Approvals of and from all insurance
regulatory authorities to conduct its business, with such exceptions as
would not have, individually or in the aggregate, a Material Adverse
Effect; to such counsel's knowledge, there is no pending or threatened
action, suit, proceeding or investigation that could reasonably be
expected to lead to any revocation, termination or suspension of any such
Approval, the revocation, termination or suspension of which would have,
individually or in the aggregate, a Material Adverse Effect; and, to such
counsel's knowledge, no insurance regulatory agency or body has issued any
order or decree impairing, restricting or prohibiting the payment of
dividends by any Insurance Subsidiary to its parent which would have,
individually or in the aggregate, a Material Adverse Effect;
(ix) The Company and each Significant Subsidiary has all necessary
Approvals of and from, and has made all Filings with, all insurance
regulatory authorities, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, which are necessary to own, lease, license and use its
properties and assets and to conduct its business in the manner described
in the Final Prospectus, except where the failure to have such Approvals
or to make such Filings would not have, individually or in the aggregate,
a Material Adverse Effect; to such counsel's knowledge, all such Approvals
and Filings are in full force and effect and neither the Company nor any
Significant Subsidiary has received any notice of any event, inquiry,
investigation or proceeding that would reasonably be expected to result in
the suspension, revocation or limitation of any such Approval or otherwise
impose any limitation on the conduct of the business of the Company or any
Significant Subsidiary, except as described in the Final Prospectus, or
except for any such suspension, revocation or limitation which would not
have, individually or in the aggregate, a Material Adverse Effect;
(x) Each Broker-Dealer Subsidiary and each Investment Advisor
Subsidiary is duly licensed or registered as a broker-dealer or investment
advisor, as the case may be, in each jurisdiction where it is required to
be so licensed or registered to conduct its business, in each case, with
such exceptions as would not have, individually or in the aggregate, a
Material Adverse Effect; each Broker-Dealer Subsidiary and each Investment
Advisor Subsidiary has all other necessary Approvals of and from all
applicable regulatory authorities, including any self-regulatory
organization, to conduct its business, in each case with such exceptions
as would not have, individually or in the aggregate, a Material Adverse
Effect; except as otherwise described in the Final Prospectus,, to such
counsel's knowledge, no Broker-Dealer Subsidiary or Investment Advisor
Subsidiary has received any notification from any applicable regulatory
authority to the effect that any additional Approvals from such regulatory
authority are needed to be obtained by such subsidiary in any case where
it could be reasonably expected that (x) such Broker-Dealer Subsidiary or
Investment Advisor Subsidiary would in fact be required either to obtain
any such additional Approvals or cease or otherwise limit engaging in
certain business and (y) the failure to have such Approvals or limiting
such business would have a Material Adverse Effect;
(xi) To such counsel's knowledge and other than as set forth in the
Final Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its Significant Subsidiaries is a party or
to which any property of the Company or any of its Significant
Subsidiaries is subject, challenging the transactions contemplated by this
Remarketing Agreement or which, if determined adversely to the Company or
any of its
12
Significant Subsidiaries, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and, to such
counsel's knowledge and other than as described or contemplated in the
Final Prospectus, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xii) Neither the Company nor any Significant Subsidiary is an
"investment company" required to be registered under the Investment
Company Act, although certain separate accounts of MetLife and its
subsidiaries are required to register as investment companies under the
Investment Company Act;
(xiii) The Remarketing, the sale of the Debentures pursuant to this
Remarketing Agreement and the execution and delivery by the Company of and
the compliance by the Company with all of the provisions of the Debentures
and the Transaction Documents, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument listed as an exhibit to the
Registration Statement or any other indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which, to the knowledge
of such counsel, the Company or any of its Significant Subsidiaries is a
party or by which the Company or any of its Significant Subsidiaries is
bound or to which any of the property or assets of the Company or any of
its Significant Subsidiaries is subject, or which affects the validity,
performance or consummation of the transactions contemplated by the
Transaction Documents, except for such conflicts, breaches, violations or
defaults as would not, individually or in the aggregate, have a Material
Adverse Effect and would not adversely affect the validity or performance
of the Transaction Documents or the Debentures; nor will such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any Significant Subsidiary or
any statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company, any of its Significant Subsidiaries or any
of their respective properties; provided, that no opinion need be given
with respect to (i) the Act, the Exchange Act, the Trust Indenture Act,
the rules and regulations issued pursuant to each such act, or any order,
rule or regulation made or established by the NASD, or (ii) any state
securities or Blue Sky laws in connection with the distribution of the
Debentures by the Remarketing Agents;
(xiv) The Company and each Significant Subsidiary has made all
filings, qualifications or registrations required to be made pursuant to,
and has obtained all consents, approvals, licenses, authorizations or
validations required to be obtained under any law or regulation of the
United States or any state thereof for the sale of the Debentures pursuant
to this Remarketing Agreement, the compliance by the Company with all
provisions of this Remarketing Agreement and the Debentures, and the
consummation of the transactions herein and therein contemplated, except
for such filings, qualifications, registrations, consents, approvals,
licenses, authorizations or validations (i) as may be required under state
securities, insurance securities or Blue Sky laws in connection with the
purchase and distribution of the Debentures by the Remarketing Agents, or
(ii) individually or in the aggregate, as would not affect the validity,
performance of, or adversely affect the consummation of, the transactions
contemplated by this Remarketing Agreement and the Debentures or would not
have a Material Adverse Effect;
(xv) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued, and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act;
(xvi) The statements set forth in the Final Prospectus under the
captions "Description of Debt Securities" and "Description of the
Remarketed Debentures", insofar as they purport to constitute a summary of
the terms of the Debentures, under the caption "Plan of Distribution", and
under the captions "Business - Regulation", "Business - Competition" and
"Legal Proceedings", which have been incorporated therein by reference to
the Company's Annual Report on Form 10-K for the year ended December 31,
2001, as updated by the Final Prospectus, insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate and complete in all material respects;
(xvii) Each of the documents filed by the Company pursuant to the
Exchange Act, and incorporated by reference into the Registration
Statement and the Final Prospectus as of the date hereof, when it was
filed, complied
13
in all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that
such counsel need not express any opinion as to the financial statements
and related notes and schedules and other financial data included or
incorporated by reference therein or excluded therefrom;
(xviii) The Registration Statement, at the time it became effective,
and the Final Prospectus, as of its date, complied in all material
respects with the requirements of the Act and the general rules and
regulations thereunder, except that in each case such counsel need not
express any opinion as to the financial statements and schedules and other
financial data included or incorporated by reference therein or excluded
therefrom, and, except to the extent expressly stated in paragraph (xvi),
such counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Final Prospectus;
(xix) The Registration Statement has been declared effective by the
Commission under the Act, and the Final Prospectus has been filed with the
Commission in accordance with Rule 424(b) under the Act;
(xx) The Debentures (a) constitute the valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture, and
will be enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity),
and (b) are in the form contemplated by the Indenture, and the Debentures
and the Indenture conform to the descriptions thereof in the Final
Prospectus; and
(xxi) Each of the Remarketing Agreement, the Indenture, the Purchase
Contract Agreement and the Pledge Agreement constitutes a valid and
legally binding agreement of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and the Indenture has been duly qualified
under the Trust Indenture Act.
Such counsel shall also state that while he has not himself checked the
accuracy and completeness of, or otherwise verified, and is not passing upon and
assumes no responsibility for, the accuracy or completeness of the statements
contained in the Registration Statement or the Final Prospectus except to the
limited extent stated in clauses (v) and (xvi) of this Section 5(e), no facts
have come to the attention of such counsel which have led such counsel to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Remarketing Closing
Date (other than the financial statements and schedules and other financial
information contained therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date and as of the Remarketing Closing Date,
the Final Prospectus or any further amendment or supplement thereto made by the
Company prior to the Remarketing Closing Date (other than the financial
statements and schedules and other financial information contained therein, as
to which such counsel need express no opinion) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and such counsel does not know of any
amendment to the Registration Statement required to be filed or of any contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Final Prospectus which are not filed or described as required.
In rendering such opinion, such counsel may state that such counsel is
admitted to practice law in the State of New York and that he expresses no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the DGCL; and such counsel shall be entitled to rely in
respect of the above opinions upon opinions of local or in-house counsel of the
Company or its subsidiaries and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such counsel shall
state that such counsel believes that both the Remarketing Agents and such
counsel are justified in relying upon such opinions and certificates.
14
(f) The Company will furnish the Remarketing Agents with such
conformed copies of such opinions, certificates, letters and documents as the
Remarketing Agents reasonably request;
(g) On the date of the Final Prospectus at a time prior to the
execution of this Remarketing Agreement, at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Remarketing Agreement and at the
Remarketing Closing Date, Deloitte & Touche LLP shall have furnished to the
Remarketing Agents a letter, dated the respective dates of delivery thereof, in
form and substance reasonably satisfactory to the Remarketing Agents, confirming
that they are independent public accountants with respect to the Company and the
Company's subsidiaries within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder, and
further to the effect set forth in Annex II hereto;
(h) The Remarketing Agents shall have received from Deloitte &
Touche LLP (and furnished to you in form and substance satisfactory to you) a
review report with respect to "Management's Discussion and Analysis of Financial
Condition and Results of Operations of the Company", as set forth in the
Company's most recent reports on Forms 10-K and 10-Q, respectively, in
accordance with Statement on Standards for Attestation Engagement No. 10 issued
by the Auditing Standards Board of the American Institute of Certified Public
Accountants;
(i) Neither the Company nor any Significant Subsidiary shall have
sustained (i) since the date of the latest audited financial statements included
or incorporated by reference in the Final Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Final
Prospectus, and (ii) since the respective dates as of which information is given
in the Final Prospectus, there shall not have been any change in the surplus of
MetLife or the capital stock of the Company or any increase in the long-term
debt of the Company and its respective subsidiaries considered as a whole, or
any change, or any development involving a prospective change, in or affecting
the business, financial position, stockholders' equity or results of operations
of the Company and the Significant Subsidiaries considered as a whole, otherwise
than as set forth or contemplated in the Final Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of the
Remarketing Agents so material and adverse as to make it impracticable or
inadvisable to proceed with the remarketing of the Debentures on the terms and
in the manner contemplated in the Final Prospectus;
(j) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the debt securities of the Company or any
Significant Subsidiary or the financial strength or claims paying ability of the
Company or any of its Significant Subsidiaries by A.M. Best & Co. or any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt security or
the financial strength or the claims paying ability of the Company or any
Significant Subsidiary;
(k) On or after the date hereof, there shall not have occurred any
of the following: (i) a change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the reasonable judgment of the Remarketing Agents, be likely to prejudice
materially the success of the proposed Remarketing of the Debentures, whether in
the primary market or in respect of dealings in the secondary market; (ii) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (iii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iv) a suspension or
material limitation in clearing and/or settlement in securities generally; (v) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (vi) the material outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war or any other national or international calamity
or emergency (including without limitation as a result of an act of terrorism)
if the effect of any such event specified in this clause (vi) in the judgment of
the Remarketing Agents makes it impracticable or inadvisable to proceed with the
remarketing of the Debentures being delivered on the Remarketing Closing Date on
the terms and in the manner contemplated in the Final Prospectus;
(l) The Company shall have complied with any request by the
Remarketing Agents with respect to the furnishing of copies of the Preliminary
Prospectus and the Final Prospectus, as the case may be, in compliance with the
provisions of Section 3(c) hereof;
15
(m) At the Remarketing Closing Date, the Remarketing Agents shall
have received a certificate of the Company, dated as of the Remarketing Closing
Date, to the effect that (i) the representations and warranties of the Company
contained in Section 2 hereof are true and correct in all respects with the same
force and effect as though expressly made at and as of Remarketing Closing Date
and (ii) the Company has complied in all respects with all agreements and all
conditions on its part to be performed under this Remarketing Agreement at or
prior to the Remarketing Closing Date; and
(n) Debevoise & Xxxxxxxx, counsel for the Company, shall have
furnished to the Remarketing Agents their written opinion, dated the Remarketing
Closing Date, in form and substance reasonably satisfactory to the Remarketing
Agents, with respect to the incorporation of the Company and the validity of the
Debentures being delivered on the Remarketing Closing Date. Such opinion shall
also state that the statements set forth in the Final Prospectus under the
caption "Certain United States Federal Income Tax Consequences", insofar as they
purport to describe matters of law or legal conclusions, are correct in all
material respects."
6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Remarketing
Agent and Reset Agent, its partners, directors and officers and each person, if
any, who controls such Remarketing Agent or Reset Agent within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Remarketing Agent or Reset Agent may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) the failure to have an effective
Registration Statement relating to the Debentures or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Company failed to
provide the Remarketing Agents with a Final Prospectus for delivery, or (ii) an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment or supplement (when considered together
with the document to which such supplement relates) thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (iii) an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Final Prospectus, any
other prospectus relating to the Debentures, or any amendment or supplement
(when considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, or (iv) the remarketing of the Debentures or the
establishment of the Reset Rate, as the case may be, or the engagement of the
Remarketing Agents or the Reset Agents pursuant to, or the performance by the
Remarketing Agents or the Reset Agents of their respective services contemplated
by, this Remarketing Agreement; and will reimburse each Remarketing Agent and
each Reset Agent for any legal or other expenses reasonably incurred by such
Remarketing Agent or Reset Agent, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that (I) the Company shall not be liable under
clause (a)(ii) or (a)(iii) in any such case to the extent that any such loss,
claim, damage or liability (or action in respect thereof) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Final Prospectus, any other prospectus relating to the Debentures, or any
such amendment or supplement(s) in reliance upon and in conformity with written
information furnished to the Company by such Remarketing Agent or such Reset
Agent, as the case may be, expressly for use in the Final Prospectus and (II)
the Company shall not be liable under clause (a)(iv) to the extent such
liability is found in a final judgment by a court of competent jurisdiction to
have resulted from the bad faith, gross negligence or willful misconduct on the
part of such Remarketing Agent or Reset Agent, as the case may be; provided,
further, that the Company shall not be liable to any Remarketing Agent under
this Section 6(a) with respect to any Preliminary Prospectus to the extent that
a court of competent jurisdiction has found by final and nonappealable order
that any such loss, claim, damage or liability of such Remarketing Agent results
from the fact that such Remarketing Agent sold Debentures to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Final Prospectus as then amended or supplemented (it being
understood that if at the time of any such claim such Remarketing Agent shall
certify that it has sent or given the Final Prospectus as then amended or
supplemented to any person making such claim at or prior to the written
confirmation of such sale, it shall be presumed that such Final Prospectus has
been so sent or given unless the Company shall have sustained the burden of
proving, in a court of competent jurisdiction by a final and nonappealable
order, that the facts are otherwise), if (i) such delivery to such person is
required by Section 5 of the Act, (ii) the Company has furnished copies of such
Final Prospectus as amended or supplemented to such Remarketing Agent a
reasonable period of
16
time prior to such Remarketing Agent being required so to deliver such Final
Prospectus as amended or supplemented and (iii) the untrue or alleged untrue
statement or omission or alleged omission of material fact contained in the
Preliminary Prospectus was corrected by such Final Prospectus as amended or
supplemented.
(b) Each Remarketing Agent and Reset Agent will, severally and not
jointly, indemnify and hold harmless the Company, its directors and officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Final Prospectus, any other prospectus relating to the Debentures, or any
amendment or supplement (when considered together with the document to which
such supplement relates) thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Final Prospectus, any other
prospectus relating to the Debentures, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Remarketing Agent or Reset Agent, as the case may be, expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; the omission so to notify the indemnifying
party shall relieve it from any liability which it may have to any indemnified
party under such subsection, to the extent the indemnifying party is actually
prejudiced by such omission. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying party
or any other indemnified party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation, unless (i) the
indemnifying party and such indemnified party shall have mutually agreed to the
contrary, (ii) the indemnifying party has failed within a reasonable time to
retain counsel reasonably satisfactory to such indemnified party or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and such indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No indemnifying party shall, without
the prior written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agents and the Reset Agents on the other from the remarketing of the Debentures
to which any such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is
17
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Remarketing Agents and the Reset
Agents on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Remarketing Agents and
the Reset Agents on the other shall be deemed to be in the same proportion as
the total net proceeds from such remarketing (before deducting expenses)
received by the Company bear to the aggregate fees actually received by such
Remarketing Agents and the Reset Agents under Section 4 hereof. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Remarketing Agents or the Reset Agents, as the case may
be, on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Remarketing Agents and the Reset Agents agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Remarketing Agents and the Reset
Agents were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Remarketing Agent or
Reset Agent shall be required to contribute any amount which, in the aggregate,
exceeds the aggregate fees received by such Remarketing Agent or Reset Agent in
connection with the Remarketing under Section 4 of this Remarketing Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Remarketing
Agents and the Reset Agents in this subsection (d) to contribute are several in
proportion to their respective remarketing and reset obligations with respect to
the Debentures and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Remarketing Agent or Reset Agent within the meaning of the Act. The obligations
of the Remarketing Agents and the Reset Agents under this Section 6 shall be in
addition to any liability which the respective Remarketing Agents and Reset
Agents may otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company (including any person who, with his
consent, is named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company within the
meaning of the Act.
7. Resignation and Removal of the Remarketing Agents and the Reset Agent.
The Remarketing Agents and the Reset Agents may resign and be discharged from
their duties and obligations hereunder, and the Company may remove any
Remarketing Agent or Reset Agent, by giving five (5) Business Days' prior
written notice to the Purchase Contract Agent and, in the case of a removal, to
the removed Remarketing Agent or Reset Agent; provided that no such resignation
nor any such removal shall become effective until the Company shall have
appointed at least one nationally recognized broker-dealer as successor to such
Remarketing Agent or Reset Agent, as the case may be, and such successor
Remarketing Agent or Reset Agent shall have entered into a remarketing agreement
with the Company and the Purchase Contract Agent in which it shall have agreed
to conduct the Remarketing in accordance with the Remarketing Procedures. In any
such case, the Company will use its reasonable efforts to appoint a successor
Remarketing Agent or Reset Agent, as the case may be, and enter into such a
remarketing agreement with such person as soon as reasonably practicable. The
provisions of this Section 7 shall survive the resignation or removal of any
Remarketing Agent or Reset Agent pursuant to this Remarketing Agreement.
8. Dealing in the Remarketed Debentures. Each of the Remarketing Agents
and the Reset Agents, when acting hereunder, or when acting in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold or deal
in any of the Remarketed Debentures. Each of the Remarketing Agents and the
Reset Agents may exercise any vote or join in any action which any beneficial
owner of Remarketed Debentures may be entitled to exercise or take pursuant to
the Indenture with like effect as if it did not act in any capacity hereunder.
Each of the Remarketing Agents and the Reset Agents, in its individual capacity,
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
18
9. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agents and the Reset Agents shall be determined
solely by the express provisions of this Remarketing Agreement. No implied
covenants or obligations of or against the Remarketing Agents or the Reset
Agents shall be read into this Remarketing Agreement, the Purchase Contract
Agreement or the Declaration. In the absence of bad faith on the part of the
Remarketing Agents or the Reset Agents, as the case may be, each of the
Remarketing Agents and the Reset Agents may conclusively rely upon any document
furnished to it which purports to conform to the requirements of this
Remarketing Agreement, the Purchase Contract Agreement or the Declaration as to
the truth of the statements expressed in any such documents. Each of the
Remarketing Agents and the Reset Agents shall be protected in acting upon any
document or communication reasonably believed by it to be signed, presented or
made by the proper party or parties. Neither the Remarketing Agents nor the
Reset Agents shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate on the Debentures or, if there
is any such limitation, the maximum permissible Reset Rate on the Debentures,
and they shall rely solely upon written notice from the Company (which the
Company agrees to provide on or prior to the Business Day before the Remarketing
Date or the applicable Subsequent Remarketing Date, as the case may be) as to
whether or not there is any such limitation and, if so, the maximum permissible
Reset Rate. None of the Remarketing Agents or the Reset Agents, acting under
this Remarketing Agreement, shall incur any liability (whether direct or
indirect, in contract or tort or otherwise) to the Company or its respective
security holders or creditors or to any beneficial owner or holder of Remarketed
Debentures in its individual capacity or as Remarketing Agent or Reset Agent, as
the case may be, relating to or arising out of the engagement of such
Remarketing Agent or Reset Agent pursuant to, or the performance by such
Remarketing Agent or Reset Agent of their respective services contemplated by,
this Remarketing Agreement or for any action or failure to act in connection
with the Remarketing (or any Subsequent Remarketing, in the event of a Failed
Remarketing) or otherwise, except to the extent such liability is found in a
final judgment by a court of competent jurisdiction to have resulted from the
bad faith, gross negligence or willful misconduct on the part of such
Remarketing Agent or Reset Agent, as the case may be. Each of the Remarketing
Agents and Reset Agents may, but shall not be obligated to, purchase Remarketed
Debentures for its own account. The provisions of this Section 9 shall survive
any termination of this Remarketing Agreement and shall also continue to apply
to every Remarketing Agent and Reset Agent notwithstanding their resignation or
removal.
10. Termination of Remarketing Agreement. This Remarketing Agreement shall
terminate as to any Remarketing Agent or Reset Agent which is replaced on the
effective date of the resignation or removal of such Remarketing Agent or Reset
Agent pursuant to Section 7. In addition, the obligations of such Remarketing
Agent or Reset Agent may be terminated by it by notice given to the Company
prior to 10:00 A.M., New York City time on the Remarketing Date (or any
Subsequent Remarketing Date, in the event of a Failed Remarketing) if, prior to
that time, any of the conditions precedent to the obligations of the Remarketing
Agents and the Reset Agents described in Section 5 hereof shall have failed to
occur.
11. Survival. Notwithstanding any such termination set forth in Section 10
hereof, the obligations set forth in Section 4 hereof shall survive and remain
in full force and effect until all amounts payable under said Section 4 shall
have been paid in full. In addition, each former Remarketing Agent and Reset
Agent shall be entitled to the rights and benefits under Section 6 of this
Remarketing Agreement notwithstanding the replacement or resignation of such
Remarketing Agents or Reset Agents. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the
Remarketing Agents or Reset Agents, as set forth in this Remarketing Agreement
or made by or on behalf of them, respectively, pursuant to this Remarketing
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Remarketing Agent or Reset Agent or any controlling person of any such
Remarketing Agent or Reset Agent, the Company or any officer or director or
controlling person of the Company and shall survive delivery of and payment for
the Debentures.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication; notices to the
Remarketing Agents and Reset Agents shall be directed to (i) Credit Suisse First
Boston LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 and (ii) Xxxxxxx Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Xxxxx X. Xxxxxxxxxx, Esq.; if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; if to the Debenture Trustee shall
be delivered or sent by mail or facsimile transmission to The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust, Administration, telecopy: (000) 000-0000; if to the Purchase Contract
Agent shall be delivered or sent by mail or facsimile transmission to
19
Bank One Trust Company, N.A., 1 Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx,
Xxxxxxxx 00000-0000, Attn: Corporate Trust Administration, telecopy: (312)
336-8840; and if to the Collateral Agent or the Custodial Agent shall be
delivered or sent by mail or facsimile transmission to The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Dealing and
Trading Group, Xxxxx Xxxxxxxxxx, telecopy: (000) 000-0000.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
13. Successors and Assigns. This Remarketing Agreement shall be binding
upon, and inure solely to the benefit of, the Remarketing Agents, the Reset
Agents, the Company, and, to the extent provided in Sections 6 and 11 hereof,
the officers and directors of the Company and each person who controls the
Company or any Remarketing Agent or Reset Agent, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Remarketing Agreement. No
purchaser of any of the Debentures pursuant to this Remarketing Agreement shall
be deemed a successor or assign by reason merely of such purchase.
14. GOVERNING LAW. THIS REMARKETING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
15. Consent to Jurisdiction. The Company agrees that any legal suit,
action or proceeding against the Company brought by any Remarketing Agent or
Reset Agent or by any person, if any, who controls any Remarketing Agent or
Reset Agent within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, arising out of or based upon this Remarketing Agreement or
the transactions contemplated hereby may be instituted in any state or Federal
court in the Borough of Manhattan, The City of New York, New York, and, to the
fullest extent permitted by applicable law, waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the non-exclusive jurisdiction of such courts in any
suit, action or proceeding.
16. Offering Restrictions. Each of the Remarketing Agents represents and
agrees that it has not offered, sold or delivered and it will not offer, sell or
deliver, directly or indirectly, in its capacity as Remarketing Agent, any of
the Debentures, or distribute the Preliminary Prospectus, the Final Prospectus
or any other offering material relating to the Debentures, in or from any
jurisdiction except under circumstances that will result in compliance with the
applicable laws and regulations thereof and that it will not impose any
obligations on the Company, except as set forth in this Remarketing Agreement.
In particular, each Remarketing Agent severally represents and agrees as set
forth in Annex III to this Remarketing Agreement.
17. Counterparts. This Remarketing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
20
Very truly yours,
METLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: SVP & Treasurer
BANK ONE TRUST COMPANY, N.A.
as Purchase Contract Agent
By: /s/ Xxxxxx Xxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Vice President
Accepted as of the date hereof
on behalf of each Remarketing Agent and Reset Agent:
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx Xxxxx & Co
-----------------------------
Name:
Title:
21
ANNEX I
SIGNIFICANT SUBSIDIARIES
METROPOLITAN LIFE INSURANCE COMPANY (NY)
GENAMERICA FINANCIAL CORPORATION (MO)
GENERAL AMERICAN LIFE INSURANCE COMPANY (MO)
REINSURANCE GROUP OF AMERICA, INCORPORATED (MO)
NEW ENGLAND LIFE INSURANCE COMPANY (MA)
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY (RI)
STATE STREET RESEARCH & MANAGEMENT COMPANY (DE)
X-0
XXXXX XXX
XXXXXXXX XXXXXXXXXXXX
Xxxxxx Xxxxxxx. Each of the Remarketing Agents has severally
represented and agreed that it has not offered, and will not offer, prior to the
expiry of a period of six months from the issue date of the debentures, any
debentures to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995.
A person may only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of any securities in
circumstances in which Section 21(1) of the FSMA does not apply to MetLife, Inc.
This communication is directed only at persons who (1) are outside
the United Kingdom or (2) have professional experience in matters relating to
investments or (3) are persons falling within Article 49(2)(a) to (d) ("high
net worth companies, unincorporated associations etc.") of the Financial
Services and Markets Xxx 0000 (Financial Promotion) Order 2001 (all such persons
together being referred to as "relevant persons"). This communication must not
be acted on or relied on by persons who are not relevant persons. Any investment
or investment activity to which this communication relates is available only to
relevant persons and will be engaged in only with relevant persons.'
Japan. The debentures have not been and will not be registered under
the Securities and Exchange Law of Japan. Each Remarketing Agent has severally
represented and agreed that it has not offered or sold, and it will not offer or
sell, directly or indirectly, any debentures in Japan or to, or for the account
or benefit of, any resident of Japan or to, or for the account or benefit, of
any resident for reoffering or resale, directly or indirectly, in Japan or to,
or for the account or benefit of, any resident of Japan except (1) pursuant to
an exemption from the registration requirements of, or otherwise in compliance
with, the Securities and Exchange Law of Japan, and (2) in compliance with the
other relevant laws and regulations of Japan.
Hong Kong. Each of the Remarketing Agents has severally represented
and agreed that it has not offered, and will not offer, in the Hong Kong Special
Administrative Region of the People's Republic of China ("Hong Kong") any
debentures, by means of any document, other than to persons whose ordinary
business is to buy or sell shares or debentures, whether as principal or agent,
except in circumstances which do not constitute an offer to the public within
the meaning of the Companies Ordinance (Cap.32) of Hong Kong, and unless
permitted to do so under the securities laws of Hong Kong, no person has issued
or had in its possession for the purposes of issue, and will not issue or have
in its possession for the purpose of issue, any advertisement, document or
invitation relating to the debentures in Hong Kong other than with respect to
the debentures intended to be disposed of to persons outside Hong Kong or only
to persons whose business involves the acquisition, disposal or holding of
securities whether as principal or agent.
Germany. No sales prospectus (Verkaufsprospekt) relating to the
debentures has been or will be published in Germany. Each Remarketing Agent has
severally represented and agreed that it will comply with the German law
relating to securities sales prospectuses (Verkaufsprospektgesetz), of September
13, 1990, as amended (the "Law Concerning Prospectuses"), and that it will not
offer or sell the debentures in Germany, except pursuant to one of the placement
exemptions relating to prospectuses set forth in the Law Concerning
Prospectuses.
III-1
