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EXHIBIT 6
COMMERCIAL PAPER DEALER AGREEMENT, dated as of September 24, 1999, between
METLIFE FUNDING, INC., a Delaware corporation (the "Issuer"), and CHASE
SECURITIES INC., a Delaware corporation ("CSI").
The Issuer intends to issue short-term notes pursuant to Section 3(a)(3)
of the Securities Act of 1933, as amended (the "1933 Act").
The Issuer desires to enter into this Agreement with CSI in order to
provide for the offer and sale of such notes in the manner described here.
The parties hereto, in consideration of the premises and mutual covenants
herein contained, agree as follows:
1. Definitions.
"Business Day" shall mean any day other than a Saturday or Sunday or a day
when banks are authorized or required by law to close in New York City.
"DTC" shall mean the Depository Trust Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Issuing and Paying Agent" shall mean The Chase Manhattan Bank (as
successor to Manufacturers Hanover Trust Company), the issuing and paying agent
under the Issuing and Paying Agency Agreement, or any successor thereto.
"Issuing and Paying Agency Agreement" shall mean the issuing and paying
agency agreement, dated as of December 11, 1984, as amended by a letter dated
October 26, 1990, between the Issuer and the Issuing and Paying Agent, as the
same may from time to time be further amended.
"Metropolitan" shall mean Metropolitan Life Insurance Company, the
indirect owner of all the issued and outstanding stock of the Issuer.
"Notes" shall mean short-term promissory notes of the Issuer,
substantially in the form of Annex A to the Issuing and Paying Agency Agreement
in the case of certificated Notes, and represented by master notes
substantially in the form of Annex B to the Issuing and Paying Agency Agreement
in the case of book-entry Notes, issued by the Issuer from time to time
pursuant to the Issuing and Paying Agency Agreement.
"Offering Materials" shall mean the Offering Memorandum (defined below),
any company information and any other offering materials concerning the Issuer,
its affiliates or the Notes contemplated by Section 6 hereof, as such offering
materials may be amended or supplemented from time to time with the prior
written consent of the Issuer.
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"Offering Memorandum" shall mean the offering memorandum with respect to
the offer and sale of the Notes (including materials referred to therein or
incorporated by reference therein), prepared in accordance with Section 6
hereof and provided to purchasers or prospective purchasers of the Notes, and
including all amendments and supplements thereto which may be prepared from
time to time in accordance with this Agreement.
"Person" shall mean an individual, a corporation, a partnership, a trust,
an association or any other entity.
"SEC" shall mean the U.S. Securities and Exchange Commission, or any
successor thereto.
"Support Agreement" shall mean the Support Agreement, dated as of November
30, 1984, as amended and restated as of that date on July 2, 1985, between
Metropolitan and the Issuer.
2. Issuance and Placement of Notes.
(a) The Issuer hereby appoints CSI to act as the Issuer's dealer in
connection with the sale of the Notes in accordance with the terms hereof, and
CSI hereby accepts such appointment. While (i) the Issuer has and shall have no
obligation to permit CSI to purchase any Notes for its own account or to
arrange for the sale of any Notes and (ii) CSI has and shall have no obligation
to purchase any Notes for CSI's own account or to arrange for the sale of any
Notes, the parties agree that, as to any and all Notes which CSI may purchase
or the sale of which CSI may arrange, such Notes will be purchased or sold by
CSI in reliance on, among other things, the agreements, representations,
warranties and covenants of the Issuer contained herein on the terms and
conditions and in the manner provided for herein.
(b) If the Issuer and CSI shall agree on the terms of the purchase of any
Note by CSI or the sale of any Note arranged by CSI (including, but not limited
to, agreement with respect to the date of issue, purchase price, principal
amount, maturity and interest rate (in the case of interest-bearing Notes) or
discount rate thereof (in the case of Notes issued on a discount basis), and
appropriate compensation for CSI's services hereunder) pursuant to this
Agreement, CSI shall confirm the terms of each such agreement promptly to the
Issuer pursuant to CSI's written confirmation statement, the Issuer shall cause
such Note to be issued and delivered in accordance with the terms of the
Issuing and Paying Agency Agreement, and payment for such Note shall be made in
accordance with such Agreement. The authentication and delivery of such Note by
the Issuing and Paying Agent shall constitute the issuance of such Note by the
Issuer. The Issuer shall deliver Notes signed by the Issuer to the Issuing and
Paying Agent, and instructions shall be delivered to the Issuing and Paying
Agent to complete, authenticate and deliver such Notes in the manner prescribed
in the Issuing and Paying Agency Agreement. CSI shall be entitled to
compensation at such rates and paid in such manner as shall be indicated in
CSI's written
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confirmation statement or as the Issuer and CSI shall otherwise agree from time
to time in connection with the transactions contemplated hereby.
(c) The Notes may be issued either in physical bearer form or in
book-entry form. Notes in book-entry form shall be represented by master notes
registered in the name of a nominee of DTC and recorded in the book-entry
system maintained by DTC. References to "Notes" in this Agreement shall refer
to both physical and book-entry Notes unless the context otherwise requires.
The Notes may be issued either at a discount or as interest-bearing obligations
with interest payable at maturity in a stated amount.
(d) Each Note purchased by, or the sale of which is arranged through, CSI
hereunder shall (i) have a face amount of $100,000, or an integral multiple of
$1,000 in excess thereof, (ii) have a maturity which is a Business Day not
later than the 270th day next succeeding such Note's date of issuance and (iii)
not contain any provision for extension, renewal or automatic "rollover".
3. Representations and Warranties of the Issuer.
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(a) The Issuer represents and warrants as follows:
(i) The Issuer is a duly organized and validly existing corporation in
good standing under the laws of the state of its incorporation and has the
corporate power and authority to own its property, to carry on its business as
presently being conducted, to execute and deliver this Agreement, the Issuing
and Paying Agency Agreement, and the Notes, and to perform and observe the
conditions hereof and thereof.
(ii) Each of this Agreement and the Issuing and Paying Agency Agreement
has been duly and validly authorized, executed and delivered by the Issuer and
constitutes the legal, valid and binding agreement of the Issuer. The issuance
and sale of Notes by the Issuer hereunder have been duly and validly authorized
by the Issuer and, when delivered by the Issuing and Paying Agent as provided
in the Issuing and Paying Agreement, each Note will be the legal, valid and
binding obligation of the Issuer.
(iii) The Notes are exempt from the registration requirements of the 1933
Act by reason of Section 3(a)(3) thereof, and, accordingly, registration of the
Notes under the 1933 Act will not be required. Qualification of an indenture
with respect to the Notes under the Trust Indenture Act of 1939, as amended,
will not be required in connection with the offer, issuance, sale or delivery
of the Notes.
(iv) The Issuer is neither an "investment company" nor a "company
controlled by an investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(v) No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority is required to authorize,
or is otherwise required in connection with,
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the execution, delivery or performance of this Agreement, the Issuing and
Paying Agency Agreement or the Notes.
(vi) Neither the execution and delivery by the Issuer of any of this
Agreement, the Issuing and Paying Agency Agreement and the Notes, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Issuer, will (x) result in the creation or imposition of any mortgage,
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of the Issuer or (y) violate any of the terms of the Issuer's charter
documents or by-laws, any contract or instrument to which the Issuer is a party
or by which it or its property is bound, or any law or regulation, or any
order, writ, injunction or decree of any court of governmental instrumentality,
to which the Issuer is subject or by which it or its property is bound.
(vii) There are no actions, suits, proceedings, claims or governmental
investigations pending or threatened against the Issuer or any of its officers
or directors or any persons who control the Issuer (within the meaning of
Section 15 of the 1933 Act or Section 20 of the Exchange Act) or to which any
property of the Issuer is subject, which would be reasonably likely to result
in a material and adverse change in the condition (financial or otherwise) of
the Issuer, or materially prevent or interfere with, or materially and
adversely affect the Issuer's execution, delivery or performance of, any of
this Agreement, the Issuing and Paying Agency Agreement and the Notes.
(viii) The Support Agreement remains in full force and effect and has not
been amended in any respect since July 2, 1985, and is the legal, valid, and
binding obligation of Metropolitan.
(ix) The initial Offering Materials do not, and any amendments or
supplements thereto and any subsequent Offering Materials and any amendments or
supplements thereto will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not
misleading.
(b) Each issuance of Notes by the Issuer shall be deemed a representation
and warranty by the Issuer to CSI, as of the date thereof, that, both before
and after giving effect to such issuance, (i) the representations and
warranties of the Issuer set forth in Section 3(a) hereof remain true and
correct on and as of such date as if made on and as of such date (except to the
extent such representations and warranties expressly relate solely to an
earlier date); (ii) the corporate resolutions and certificate of incumbency
referred to in Section 5 hereof remain accurate and in full force and effect;
(iii) since the date of the most recent Offering Materials, there has been no
material adverse change in the financial condition or operations of the Issuer
or of Metropolitan which has not been disclosed to CSI in writing; and (iv) the
Issuer is not in default of any of its obligations hereunder, under the Issuing
and Paying Agency Agreement or under any Note.
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4. Convenants and Agreements of the Issuer.
(a) The Issuer shall give to CSI, at least 30 days prior to the
proposed effective date thereof, notice of any proposed amendment, supplement,
waiver or consent under the Issuing and Paying Agency Agreement or the Support
Agreement. The Issuer shall provide to CSI, promptly after the same is executed,
a copy of any amendment, supplement or written waiver or consent covered by the
notice requirements of this Section 4(a). The Issuer shall furnish prior written
notice to CSI, as soon as possible and in any event at least 30 days prior to
the effective date thereof, of any proposed resignation, termination or
replacement of the Issuing and Paying Agent.
(b) The Issuer shall, whenever there shall occur any change in the
Issuer's or Metropolitan's financial condition or any development or occurrence
in relation to the Issuer or Metropolitan that would, in either case, be
material to the holders of Notes or potential holders of Notes, promptly, and in
any event prior to any subsequent issuance of Notes, notify CSI (by telephone,
confirmed in writing) of such change, development or occurrence.
(c) The Issuer covenants and agrees with CSI that the Issuer will
promptly furnish to CSI a copy of any notice, report or other information,
relating to the Notes delivered to or from rating agencies then rating the
Notes.
(d) The proceeds from the sale of Notes will be used by the Issuer
for "current transactions" within the meaning of Section 3(a)(3) of the 1933
Act.
(e) The Issuer agrees promptly from time to time to take such action
as CSI may reasonably request to qualify the Notes for offering and sale under
the securities laws of such jurisdictions as CSI may request and the Issuer may
agree, and to comply with such laws so as to permit the continuance of sales and
resales therein for as long as may be necessary to complete the transactions
contemplated hereby, provided that in connection therewith the Issuer shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction other than consent to service of process
under such state securities laws. The Issuer also agrees to reimburse CSI for
any reasonable fees or costs incurred in so qualifying the Notes.
5. Conditions Precedent.
At or promptly after the execution of this Agreement, and as conditions
precedent to any obligations of CSI hereunder, there shall have been furnished
to CSI, in form and substance satisfactory to CSI:
(i) an original or photocopy of the executed Issuing and Paying Agency
Agreement;
(ii) a certified copy of resolutions duly adopted by the Board of
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Directors of the Issuer authorizing and approving the transactions
contemplated hereby;
(iii) a certificate of incumbency showing the officers and other
representatives of the Issuer authorized to execute Notes and to
give instructions concerning the issuance of Notes;
(iv) an opinion of counsel to the Issuer addressed to CSI as to the
matters set forth in subsections (i)-(viii) of Section 3(a) above
and as to such other matters as CSI shall reasonably request;
(v) true and correct copies of the letters or other public documents
assigning ratings and of all other correspondence to the Issuer
from the rating agencies that have assigned a rating to the Notes;
(vi) a copy of the Offering Materials, including the Offering
Memorandum, approved in writing by the Issuer;
(vii) in connection with issuance of Notes in book-entry form, a copy of
the master note(s) evidencing such Notes;
(viii) a true and correct photocopy of the Support Agreement;
(ix) an original executed letter ftom Metropolitan, addressed to CSI,
substantially in the form attached as Exhibit A (the "Metropolitan
Letter"); and
(x) an opinion of counsel to Metropolitan, addressed to CSI, as to the
matters set forth in the Metropolitan Letter.
6. Disclosure.
(a) The Issuer understands that, in connection with the offer and sale of
the Notes, from time to time Offering Materials, including an Offering
Memorandum and any other information approved by the Issuer for dissemination to
purchasers or potential purchasers of the Notes, will be prepared by the Issuer,
relating to the Notes, the Issuer, Metropolitan and the Support Agreement, which
Offering Materials may be distributed to CSI's sales personnel and to purchasers
and prospective purchasers of the Notes. To provide a basis for the preparation
of such Offering Materials and to assist in CSI's ongoing credit review
procedures and sale of the Notes, the Issuer shall furnish to CSI, as these
items become available, (i) Metropolitan's Annual Statement filed with state
insurance departments, (ii) Metropolitan's most recent report on Form 10-K filed
with the SEC and each report on Form l0-Q or 8-K filed by Metropolitan with the
SEC since the most recent Form 10-K (such requirement to become applicable when
and if such filings are required of Metropolitan), (iii) the Issuer's and
Metropolitan's most
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recent annual audited financial statements and each interim financial statement
or report (if any) prepared subsequent thereto, if not included in item (i) or
item (ii) above, (iv) the Issuer's and Metropolitan's other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders or any national securities
exchange and any information generally supplied in writing to securities
analysts, and (v) any other information or document prepared or approved by the
Issuer for dissemination to purchasers or potential purchasers of the Notes. In
addition, the Issuer shall provide CSI with such other information as CSI may
reasonably request for the purpose of its ongoing credit review of the Issuer
and Metropolitan.
(b) The Issuer recognizes that the accuracy and completeness of the
Offering Materials are dependent upon the accuracy and completeness of the
information obtained by CSI and; subject to Section 6(c) and Section 7 hereof,
CSI shall not be responsible for any inaccuracy in any Offering Materials.
(c) Prior to the distribution of any Offering Materials, CSI will provide
the Issuer with a copy thereof for the Issuer's approval. The Issuer shall
promptly notify CSI in writing of the Issuer's approval or disapproval of any
Offering Materials submitted to the Issuer for review. If the Issuer has not
indicated its written approval, and has not indicated in writing the reasons why
such approval cannot be given, by the 14th calendar day after the Offering
Materials are delivered to the Issuer, the Offering Materials shall be deemed
approved by the Issuer on such 14th day. Any such approval by the Issuer shall
be deemed to be a representation by the Issuer that the Offering Materials
(excluding any information furnished by CSI expressly for inclusion therein, as
set forth in the sections thereof entitled "Chase Securities Inc. and its
Affiliates" and "Additional Information") so approved do not contain an untrue
statement of a material fact nor omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading.
(d) The Issuer represents and warrants to CSI that the financial
statements of the Issuer and Metropolitan to be delivered to CSI in accordance
with this Section 6 are or will be in accordance with generally accepted
accounting principles and practices in effect in the United States on the date
such statements were or will be prepared and fairly do or will present the
financial condition and operations of the Issuer at such date and the results of
the Issuer's or Metropolitan's (as the case may be) operations for the period
then ended.
(e) The Issuer shall notify CSI promptly after the Issuer has knowledge
of(i) any event that would render any fact contained in the Issuer's or
Metropolitan's most recent financial reports, as submitted to CSI, untrue or
misleading, or (ii) any event relating to or affecting the Issuer or
Metropolitan that would cause the Offering Materials then in use to include an
untrue statement of a material fact or to omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. In such event, the
Issuer shall supply CSI promptly with such information as will correct such
untrue or misleading statement or omission.
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7. Indemnification.
(a) The Issuer shall indemnify CSI and its affiliates, their respective
directors, officers, employees, and agents, and each person who controls CSI or
its affiliates (as defined in Regulation S-X, 17 C.F.R. Part 210) and any
successor thereto (CSI and each such person being and "Indemnified Person") from
and against any and all losses, claims, damages and liabilities, joint or
several, to which such Indemnified Person may become subject under any
applicable federal or state law, or otherwise, related to or arising out of any
untrue statement or alleged untrue statement of a material fact contained in the
Offering Materials, as approved by the Issuer and the Guarantor, or in any
information (whether oral or written) or documents furnished or made available
by the Issuer to offerees of the Notes or any of their representatives or the
omission or the alleged omission to state therein a material fact necessary to
make the statements therein not misleading in light of the circumstances under
which they were made, and shall promptly reimburse any Indemnified Person for
all expenses (including, but not limited to, fees and disbursements external
counsel), as they are incurred, in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Person is a party.
(b) Promptly after receipt by an Indemnified Person under this Section 7
of notice of any claim or the commencement of any action, the Indemnified Person
shall, if a claim in respect thereof is to be made against the Issuer under this
Section 7, notify the Issuer in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the Issuer shall not
relieve it from any liability that the Issuer may have under this Section 7
except up to the extent of any actual prejudice suffered by the Issuer as a
result of such failure; and, provided, further, that in no event shall the
failure to notify the Issuer relieve it from any liability that the Issuer may
have to an Indemnified Person otherwise than under this Section 7. If any such
claim or action shall be brought against an Indemnified Person, and it notifies
the Issuer thereof, the Issuer shall be entitled to participate therein and, to
the extent that the Issuer wishes, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Person. After notice from the Issuer
to the Indemnified Person of the Issuer's election to assume the defense of such
claim or action, the Issuer shall not be liable to the Indemnified Person under
this Section 7 for any legal or other expenses subsequently incurred by the
Indemnified Person in connection with the defense thereof other than reasonable
costs of investigation. The Issuer shall not be liable for any settlement of any
such action effected without the Issuer's written consent (which consent shall
not be unreasonably withheld) but, if settled with the Issuer's written consent
or if there is a final judgment for the plaintiff in any such action, the Issuer
shall indemnify and hold harmless any Indemnified Person from and against any
loss or liability by reason of such settlement or judgment.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is for
any reason unavailable or insufficient to hold harmless an Indemnified Person,
other than as expressly provided above, the Issuer and CSI shall contribute to
the aggregate costs of satisfying such liability (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer, on the one
hand, and CSI, on the other hand, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable
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law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Issuer on the one hand and CSI on the other with respect the statements or
omissions which resulted in such loss, claim, damage or liability or action in
respect thereof, as well as any other equitable considerations. The relative
benefits received by the Issuer on the one hand and CSI on the other with
respect to such offering shall be deemed to be in the same proportion as the
aggregate proceeds to the Issuer of the Notes sold pursuant hereto (before
deducting expenses) bear to the aggregate commissions and fees earned by CSI
hereunder. 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 Issuer on the one hand or CSI on the other, the intent of the
parties, and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Issuer and CSI agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an Indemnified Person as a result of
the loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7 shall be deemed to include, for purposes of this Section
7, but not be limited to, any fees and disbursements of external counsel
reasonably incurred by an Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, the aggregate of all amounts paid by CSI pursuant to the foregoing
shall not exceed the aggregate of the commissions and fees earned by CSI
hereunder.
(d) The obligations of the Issuer in this Section 7 are in addition to any
other liability that the Issuer may otherwise have.
(e) The provisions of this Section 7 shall survive the termination of this
Agreement.
8. Choice of Forum.
Any suit, action or proceeding brought by the Issuer against CSI in
connection with or arising out of this Agreement, any agreement, instrument or
document entered into in connection with this Agreement, or the offer and sale
of the Notes shall be brought solely in the Federal courts located in the
Borough or Manhattan of the courts of the State of New York located in the
Borough of Manhattan.
9. Notices.
All notices required under the terms and provisions hereof shall be in
writing, delivered by hand, by mail (postage prepaid), or by telecopier or
telegram, and any such notice shall be effective when received at the address
specified below.
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If to the Issuer: If to CSI:
MetLife Funding, Inc. Chase Securities Inc.
One Madison Avenue 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000-0000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer Attention: Money Market Division
Fax No.: 000-000-0000 Fax No.: 000-000-0000
or, if to any of the foregoing parties or their successors, at such other
address as such party or successor may designate from time to time by notice
duly given in accordance with the terms of this Section 9 to the other party
hereto.
10. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS.
11. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto
with respect to the matters covered hereby and supersedes all prior agreements
and understandings between the parties.
12. Amendment and Termination; Successors; Counterparts.
(a) The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by written instrument
signed by both parties hereto. The Issuer or CSI may terminate this Agreement
upon at least 60 days' written notice to the other, provided that such
termination shall not affect the obligations of the parties hereunder with
respect to Notes unpaid at the time of such termination or with respect to
actions or events occurring prior to such termination.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that neither of the parties to this Agreement may assign, either in whole or in
part, any of its rights or obligations under this Agreement without the prior
written consent of the other, and any such assignment without such consent shall
be null and void. The foregoing notwithstanding, however, CSI may assign or
transfer, either in whole or in part, any of its rights or obligations under
this Agreement to any affiliate of CSI, upon at least 30 days' prior written
notice to the Issuer.
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(c) This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
13. Captions.
The Captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
14. Severability of Provisions.
Any provisions of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity of such provisions in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
METLIFE FUNDING, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CHASE SECURITIES INC.
By: /s/ XXXXXX XXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
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